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This Week in Technology + Press Freedom: Jan. 12, 2020

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  1. Policy

Welcome back to our weekly newsletter!

In our first issue of 2020, here’s what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

Given the break, this is a bit of a long one, though there are some key stories, including our analysis of the most recent DOJ news media guidelines annual report (only found here).

Justice Department decreased its use of law enforcement tools against the press in 2018, according to the latest annual report on news media guidelines

Since 1970, the Justice Department’s use of subpoenas to demand news media records has been limited by a set of internal policies commonly known as the “news media guidelines.” The guidelines were last revised in 2014 and 2015 to apply to all criminal investigative tools, including search warrants and court orders. Those revisions also require the Justice Department to prepare an annual report on the department’s use of the guidelines. The latest report, which covers 2018, was posted late last year to its website. As in recent years, the Justice Department’s Office of Public Affairs did not issue any statement in conjunction with the publication of the report.

Despite concerns about the current state of press freedom, there’s nothing obvious in the latest annual report to suggest that things have changed, at least as of 2018, with respect to the guidelines.

In the absence of a federal shield law, the guidelines provide indispensable protections for the news media. Most importantly, they usually require that an affected member of the news media be notified in advance of any subpoena, court order, or warrant so they may challenge in court any improper attempt to obtain records or information. They also require high-level approval — typically from the attorney general — before the department can take certain investigative steps involving the press. Finally, the guidelines mandate that investigators take “all reasonable attempts” to secure information from non-media sources before turning to the press.

The 2018 report is the fifth annual report released by the Justice Department. Here are a few highlights from the report.

The report lists two instances where a deputy assistant attorney general for the Criminal Division (this is the number 3 position in the division) authorized search warrants. In each case, the deputy assistant attorney general determined that the relevant conduct was not in the course of newsgathering, and, therefore, the warrant did not require attorney general sign-off. Additionally, the Criminal Division determined that the arrest of an individual who described himself as a journalist in an altercation at a congressional hearing was authorized under the “exigent circumstances” provision in the guidelines.

In contrast to 2018, a deputy assistant attorney general authorized four warrants in 2016 and in 2017.

Additionally, unlike the previous years, no subpoenas, search warrants, or court orders were approved by the attorney general in 2018. There were three such attorney general authorizations in 2016 and four in 2017.

The 2018 report does not list any instances where a journalist was questioned, charged, or arrested, as compared to two in 2016 and one in 2017. (All three of those were approved by the attorney general.) The number of “friendly subpoenas” — those issued with the news media’s consent — also significantly decreased to four, down from 14 in 2017 and 22 in each of the previous two years.

While these numbers must be considered in conjunction with the decade-long upward trend in the number of media leak prosecutions (the news media guidelines do not apply to journalistic sources), the latest report suggests a downward trend in the department’s use of law enforcement tools against members of the news media in 2018.

Additionally, the two search warrants and the exigent arrest case described in the latest report continue to indicate that, when faced with ambiguity as to the status of a member of the news media, the department will err on the side of classifying a subject as a journalist.

Even though they are usually released with little fanfare, at a time when concern over the state of press freedoms is high, the insights provided by these reports continue to be welcomed and appreciated.

— Linda Moon

Quick Hits

Legislation/Congressional Updates

In our latest newsletter, we noted that the House of Representatives passed the expansion of the Intelligence Identities Protection Act as part of the National Defense Authorization Act, a massive defense spending bill. On Dec. 17, the Senate passed the NDAA in an 86-8 vote, and President Trump signed it on Dec. 20. This means that the IIPA expansion is now law. Depending on how it is used, the new provision could bring about serious repercussions for intelligence reporting.

In an effort to better understand the internal deliberations that led to the change, the Reporters Committee has filed a FOIA request with the CIA asking for documents related to internal discussions about the bill. We are available to provide guidance or otherwise answer questions on the expansion of the law and how it could impact national security reporters. And if the CIA or other government agencies cite the IIPA in connection with inquiries from reporters, please let us know.

A Facebook executive testified in a hearing on Wednesday about the threat of online manipulation and deception. Prior to the hearing, the company confirmed to the Washington Post that it implemented a policy prohibiting users from posting “deepfakes” to its platform in an effort to stop the spread of misinformation ahead of the 2020 presidential election. However, the Post reported that the ban does not prohibit all doctored videos, only those that are “edited or synthesized” by artificial intelligence and similar technologies. The platform reportedly will not prohibit videos manipulated by other technologies, nor those created for parody or satire.

Virginia legislators introduced a strengthened anti-SLAPP (“strategic lawsuit against public participation”) bill — possibly in light of numerous cases brought in the state, including by Rep. Devin Nunes (R-Calif.) and the actor Johnny Depp — suggesting the current law does not do enough to protect defendants. The Reporters Committee has previously sounded the alarm about weaknesses in the bill, and the University of Virginia School of Law’s First Amendment Clinic, which is taught by Reporters Committee attorneys, recently tried to file an amicus brief in the Depp case on behalf of the Virginia Press Association noting concerns about the state’s law.

Last month, the Federal Aviation Administration proposed regulations that would require that most types of drones incorporate technology allowing them to be tracked while flying in the U.S. Our team will be sure to track developments on the proposed rule and the potential impact on newsgathering drones. The comment period for the public ends on Feb. 29.

Security

Given heightened tensions between the U.S. and Iran, and following numerous media reports about Iranian-Americans being held for additional questioning at the U.S.-Canada border, the Reporters Committee encourages journalists traveling internationally to be mindful of carrying sensitive data, such as source contact information, across the border. We previously covered a recent federal court decision that held that suspicionless searches of travelers’ electronic devices violate the Fourth Amendment. We noted, however, that the ruling hasn’t taken effect and may be appealed. So journalists should exercise caution and follow recommended practices for protecting data.

In case you missed it, the New York Times published a seven-part series called the “Privacy Project” detailing how advertising companies can get access to massive amounts of data from apps on mobile devices — data that can reveal a phone user’s exact location throughout the day. The piece demonstrated how someone could, with the right information, de-anonymize the data and link it to a specific person. The authors warned against carrying app-equipped phones to sensitive locations, stating, “Reporters hoping to evade other forms of surveillance by meeting in person with a source might want to rethink that practice.” The series is a helpful reminder that journalists should always be cognizant of the location-tracking capabilities of electronic devices

Press Freedom

A court in Saudi Arabia sentenced five people to death and jailed three in connection with the murder of Jamal Khashoggi, a Washington Post global opinions contributing columnist and former broadcaster in Saudi Arabia. We previously noted that Agnes Callamard, the United Nations Special Rapporteur for extrajudicial, summary, or arbitrary killings, found in June that Khashoggi was the victim of a premeditated extrajudicial execution, for which the state of Saudi Arabia was responsible. Callamard wrote on Twitter that the controversial trial was the “antithesis of justice,” as it failed to reach the alleged “masterminds” behind his killing.

A Connecticut police officer is suing to reveal the identities of anonymous commenters who he claims defamed him in the comments section of a local city blog. The blogger has defended himself on the grounds that the state’s shield law protects him from compelled disclosure of the information he gathers, including comments, and that the federal Communications Decency Act’s Section 230 further prohibits imposing liability on the blogger for comments on his site. Anonymous commenting cases have popped up from time to time, with courts often refusing to force disclosure.

Smart Reads

In a recent piece for the Washington Post, Daniel Larsen, a lecturer on international relations at the University of Cambridge, discussed the history of the phrase “national security” and the overclassification of diplomatic information. At one point in American history, Larsen noted, “The executive branch was obliged to defend its secrets on their actual necessity and merits and could not merely wave the wand of ‘national security’ as it so often tries to do.” The op-ed is worth a read.

Vox’s tech blog “Recode” has published an explainer on California’s recently enacted data privacy law, which went into effect on the first day of the year. Among the new rights and duties the law creates is the obligation for businesses to share what personal user information they collect, to share whether that information is sold and to whom, and the right of consumers to opt out of the sale of their personal information.

Gif of the Week: TFW when you download apps on your phone for fun but remember your location can be individually tracked.


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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.