U.S.

Letter to DHS Inspector General on border searches of journalists

June 13, 2017

The Reporters Committee for Freedom of the Press wrote to the Department of Justice's Inspector General to express our concern about United States Customs and Border Protection (CBP) policies and practices that affect journalists at the border. The Office of the Inspector General had earlier announced that it is looking into border inspection procedures.

A. Electronic Surveillance Authorities: Criminal Investigations

Date: 
May 9, 2017

Journalists seeking to protect confidential sources need to be aware of the full range of legal authorities for surveillance in the context of criminal investigations as well as national security investigations.  For example, government investigations of unauthorized leaks may use both criminal and national security investigative tools.  Three of the most significant information-gathering authorities in the criminal context are the Stored Communications Act, the Pen Register Act, and the Wiretap Act.

III. Electronic Communications Surveillance Authorities

Date: 
May 9, 2017

Journalists in the U.S. face numerous challenges when striving to protect their sources.  These challenges include, but are not limited to, collection and interception of communications by the U.S. government and prosecutors’ aggressive pursuit of sources for government leaks.  Combined, these factors greatly challenge journalists’ ability to communicate securely with sources, assure sensitive sources that the communications will be confidential, and gather news vital to the public interest.

C. Regulatory protection: The Department of Justice’s media subpoena and search warrant guidelines.

Date: 
May 9, 2017

As mentioned earlier, the Department of Justice has issued guidelines governing the use of certain law enforcement tools to obtain records of or pertaining to the news media.[1]  Prior to 2014, the guidelines covered subpoenas; today, they cover search warrants, subpoenas, and court orders issued under the Stored Communications Act.[2]  The guidelines are not legally enforceable but might be considered a “social contract” between the news media and the government.

B. Statutory and common law protections: state shield laws, testimonial privileges, and the Privacy Protection Act.

Date: 
May 9, 2017

The majority of states recognize a reporter’s privilege based on state law.[1]  Thirty-nine states and the District of Columbia have shield laws, which give media varying degrees of protection for confidential source information.[2]  Some shield laws protect reporters from forced disclosure of their sources.  Other shield laws provide qualified or absolute protection that varies depending on the type of legal proceeding (civil or criminal), the scope of the statute’s definition of “journalists,” whether material is confidential and/or published, and whether the journalist is a defendant or an independent third party.

A. Constitutional protection: The First and Fourth Amendments.

Date: 
May 9, 2017

The First Amendment to the U.S. Constitution guarantees freedom of expression by, among other things, prohibiting any law that infringes the freedom of the press, or the rights of individuals to speak freely.  The First Amendment affords broad protection to journalists and news organizations engaged in the gathering and dissemination of news, and a core purpose of the First Amendment is the fostering of robust and uninhibited debate on public issues.[1]  For example, in Bartnicki v. Vopper,[2] the U.S. Supreme Court held that the First Amendment protected a news organization from liability for the publication of information of public interest that had been obtained unlawfully by a source.

II. Legal and Regulatory Protections for Journalists

Date: 
May 9, 2017

In the United States, journalists have constitutional, statutory, common law, and regulatory protections that help ensure their ability to gather and report the news without government interference.  Two of the most important legal protections available to U.S. journalists include the First Amendment and state shield laws.  In the regulatory sphere, the aforementioned updated protections in Justice Department guidelines require the government to meet certain conditions before using common investigative tools to obtain records belonging to or relating to journalists.[1]



[1] See generally 28 C.F.R. § 50.10 (discussed infra at 7).

 

I. Introduction

Date: 
May 9, 2017

The practice of journalism has never been more global than it is today.  Reporters use Skype, Google Hangout, and other video chat services to communicate with sources halfway around the world.  Newsrooms rely on cloud storage to share documents among far-flung teams working on global stories.  Individuals and organizations increasingly turn to cutting-edge technologies to break important news.

Electronic Communications Surveillance

Date: 
May 9, 2017

 

 

Electronic Communications Surveillance:
What Journalists and 

Media Organizations
Need to Know

Jennifer R. Henrichsen and Hannah Bloch-Wehba*

The practice of journalism has never been more global than it is today. At the same time, new applications and services can pose risks to the security and integrity of communications. The inability to know whether and to what extent communications are being monitored creates fear and uncertainty concerning what the government considers lawful surveillance, chills speech, and impedes the exercise of First Amendment rights, including free association and free expression.

Garcia v. Bloomberg

April 10, 2017

Petitioners seek review by the U.S. Supreme Court of dismissal of their civil rights suit concerning arrests of protesters during an Occupy Wall Street protest, arguing that they have a right to notice before being arrested for participation in a lawful protest. Attorneys for David Wright Tremaine wrote a brief on our behalf arguing that a lack of notice before mass arrests also interferes with reporters’ rights while covering newsworthy events.