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This Week in Technology + Press Freedom: Jan. 19, 2020

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  1. Policy

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.

Before we get to this week’s Top Story, we wanted to flag that the Reporters Committee and 57 media organizations sent a letter to Senate leadership, the Senate Sergeant at Arms, and the U.S. Capitol Police to oppose restrictions for journalists covering the upcoming Senate impeachment trial of President Donald J. Trump. “Absent an articulable security rationale, [the Senate has] an obligation to preserve and promote the public’s right to know,” the letter said. The media coalition echoed concerns raised by the Senate Standing Committee of Correspondents in its own letter decrying the plans. Please share!

Reporters Committee weighs in as government appeals loss in challenge to journalist’s White House press pass suspension

The Reporters Committee filed a friend-of-the-court brief last week in the ongoing case concerning journalist Brian Karem’s White House “hard pass,” the credentials that facilitate reporters’ access to White House grounds.

Last August, the White House suddenly notified Karem of a 30-day suspension of his hard pass, citing the Playboy correspondent’s alleged failure “to abide by basic norms of decorum and order,” more than three weeks after Karem had an altercation with former Trump aide Sebastian Gorka in the Rose Garden.

Karem immediately sought a preliminary injunction in federal court in the District of Columbia to get his credentials restored. The Reporters Committee filed a friend-of-the-court brief in support of Karem, emphasizing the well-established legal rule that the White House can deny hard passes only pursuant to basic due process — that is, notice of the conduct that will result in denial of security credentials and an opportunity to challenge the denial. That rule — set down in 1977 by the U.S. Court of Appeals for the District of Columbia Circuit in Sherrill v. Knight — requires the White House to “articulate and publish an explicit and meaningful standard governing denial” of press passes before doing so. The brief pointed out that the White House had not done so here and argued that whatever explicit standard is adopted must offer “precision and guidance.”

The district court granted the preliminary injunction, echoing many of the arguments presented by the Reporters Committee. The government appealed.

In its amicus brief on appeal, the Reporters Committee, joined by 44 press groups, again emphasized the importance of the Sherrill due process rule, and noted the media’s critical role in holding the executive branch accountable, particularly in light of its ability to maintain greater secrecy over its actions than other branches. The brief also explained the importance of clear rules in this area, giving color to the district court’s suggestion that a White House standard of “decorum and order” is too vague for journalists to be on “fair notice” about how to conform their behavior.

We jumped into the Karem case for many of the same reasons that the Reporters Committee has engaged in issues involving First Amendment retaliation against the press under the guise of executive branch regulatory actions.

In 2018, for instance, the Reporters Committee filed a friend-of-the-court brief in another case in the D.C. Circuit where the government appealed its unsuccessful challenge to the merger of AT&T and Time Warner (which owns CNN). The brief noted the president’s public and well-documented hostility toward CNN, and the importance of permitting limited discovery to determine the viability of a selective enforcement defense in cases where public criticism of an outlet suggests intent to retaliate against it.

The brief also highlighted examples of attempted press intimidation under administrations of both parties, including President Lyndon Johnson’s demand for a literal letter of fealty from the publisher of the Houston Chronicle in exchange for authorizing a merger involving a bank owned by the publisher and President Richard Nixon using the threat of an antitrust lawsuit against the television networks in an attempt to sway coverage.

Ultimately, the issues at stake in Karem, the AT&T case, and the Johnson/Nixon episodes are similar. If the First Amendment means anything, it’s that the government can’t use the levers of power to retaliate for coverage perceived as negative, be it a “hard pass” that permits a White House reporter to do his or her job, or economic regulations like antitrust that can hit a news organization where it may hurt most: the pocketbook.

— Jordan Murov-Goodman

Quick Hits

Unauthorized Disclosure

On Thursday, the New York Times reported that federal prosecutors are investigating whether former FBI Director James Comey illegally provided classified information to reporters, marking the second time the Justice Department has focused on Comey for allegedly leaking information to the press. The first ended in a decision not to prosecute. Prosecutors in the U.S. attorney’s office in the District of Columbia are now reportedly investigating whether the former director provided classified details about a Russian intelligence document to reporters for the Times and the Washington Post. Trump has previously called Comey a “leaker” on social media.

Last week, WikiLeaks founder Julian Assange briefly appeared in person in a U.K. court proceeding in which his lawyers argued they were not being given enough time to meet with their client. Assange’s five-day extradition hearing is scheduled for late February. He has been charged by U.S. officials for violating the Computer Fraud and Abuse Act and the Espionage Act.

Natalie Mayflower Sours Edwards, a former U.S. Treasury Department staffer accused of leaking confidential information to a reporter, pled guilty in federal court last week to a count of conspiracy. Edwards was charged with making unauthorized disclosures and with conspiracy to make unauthorized disclosures of “Suspicious Activity Reports,” which document certain financial transactions that could indicate wrongdoing.

Privacy and Surveillance

In the latest development in the debate over government encryption “backdoors,” Attorney General William Barr last week called on Apple to find a way to permit direct access to the encrypted phones of a Saudi aviation student who authorities say carried out a terror attack at a Florida Navy base in December. The company has refused to develop backdoors for law enforcement, arguing that there is no way to ensure that a built-in vulnerability for law enforcement won’t be exploitable by bad actors. Some have noted that third-party vendors have developed cracks for iPhone encryption, which would not involve Apple being forced to build in a vulnerability for law enforcement access.

Lawmakers in the state of Washington have unveiled a data privacy bill akin to the one recently passed in California. This continues the trend of states taking the lead in regulating the collection and use of consumer data.

Several members of Congress recently urged the Federal Communications Commission to require wireless carriers to do more to protect consumers from “SIM swapping,” a scheme in which bad actors dupe wireless carriers into transferring to their SIM cards the cell phone accounts of unsuspecting victims. Journalists should be especially concerned about being targets of SIM swapping, and can take steps such as enabling two-factor authentication to protect their accounts and data.

Claiming that a former government employee has stepped forward to divulge more details of the operation against her, former CBS news anchor Sharyl Attkisson is renewing her attempts to sue the government over alleged warrantless surveillance of her phones and computers nearly a decade ago. Her complaint claims that former Deputy Attorney General Rod Rosenstein directed a team of four agents to “conduct home surveillance” on her and other U.S. citizens during his time as the United States Attorney for the District of Maryland. This operation, she says, occurred while she reported on various controversies during the Obama administration, such as the Benghazi embassy attack.

Newsgathering and Access

Thirteen press secretaries spanning the administrations of Presidents George H.W. and George W. Bush, Bill Clinton, and Barack Obama called on the Trump administration to resume regularly scheduled press briefings. They cited multiple benefits of the briefings, despite the ability of officials to communicate through social media, including keeping policy objectives on a timely schedule and avoiding the proliferation of misinformation by allowing the media to vet claims. The Trump administration has held fewer press conferences than past administrations, with current White House press secretary Stephanie Grisham refusing to hold any since taking the position last July. Indeed, the last White House press briefing was over 300 days ago, and counting.

The U.S. Court of Appeals for the Third Circuit recently ruled in a First Amendment challenge against nondisclosure orders accompanying demands for data under the Stored Communications Act that such restraints on speech survive strict scrutiny. The court held that the government’s interest in maintaining grand jury secrecy was compelling, that the use of nondisclosure orders was narrowly tailored, and that the nondisclosure orders were the least restrictive means to maintain grand jury secrecy — thus meeting all three prongs of the constitutional test applied to such regulations. This case raises concerns similar to those of a recent case in which attorneys for the Reporters Committee filed an amicus brief in support of Microsoft.

Gif of the Week: Friendly reminder to enable two-factor paw-thentication on your devices.

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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.