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.
A busy week of tech-focused amicus filings
Attorneys for the Reporters Committee filed friend-of-the-court briefs in two cases this week raising important questions at the intersection of technology and press rights.
As we discussed in last week’s newsletter, the TPFP team learned that the city of Fullerton, California, filed a lawsuit against a local blog and its contributors, alleging violations of federal and state anti-hacking laws. On Nov. 5, we filed an amicus brief in support of the defendants, calling the lawsuit a “brazen misuse” of these laws.
In the brief, we highlight how the city’s lawsuit threatens press freedom by attempting to impose liability on the bloggers for allegedly accessing documents that were shared in a public Dropbox account and not protected by a password. We argue that such conduct is not “hacking” under federal or state computer crime law. Further, we contend that the use of tools such as virtual private networks (VPNs), Tor, and encryption is not nefarious, contrary to suggestions by the city, and is a recommended industry practice for journalists, lawyers, and, well, everyone else.
Attorneys for the Reporters Committee also filed last week an amicus brief, joined by a coalition of 21 media organizations, in a case involving Microsoft and the government’s use of section 2705(b) nondisclosure orders, which are often issued in conjunction with a warrant to obtain the contents of emails under the Stored Communications Act.
These nondisclosure orders prohibit companies like Microsoft from telling anyone that they have received an SCA subpoena, warrant, or court order probing into the email accounts of their customers.
Given how much reporters and sources rely on cloud-based service providers, the brief we filed on Nov. 1 argues that such nondisclosure orders can obstruct newsgathering, chill reporter-source relationships, and threaten the free flow of information to the public.
This isn’t the first time the Reporters Committee has helped Microsoft fight nondisclosure orders imposed by the government. In 2016, the Reporters Committee and a coalition of 29 media organizations filed an amicus brief in a case involving Microsoft’s challenge to the government’s routine use of nondisclosure orders, which, then, were often indefinite in length.
Some officials and policymakers continue to call on the media to identify the Ukraine whistleblower. Others, among them Republican senators, argue that “unmasking” this individual could deter future whistleblowers from coming forward.
A number of House Democrats urged the House Judiciary Committee to strengthen civil liberties protections in foreign intelligence surveillance law ahead of the expected vote to reauthorize provisions in the USA Freedom Act. Among their asks: finally end “bulk” metadata collection and ensure that any future data collection authority contains sufficient First Amendment protections. The Reporters Committee has previously detailed how the mass collection of telephone metadata under Section 215 of the 2001 USA Patriot Act can undermine reporter-source confidentiality.
Two California House representatives, Anna Eshoo (D-Ca.) and Zoe Lofgren (D-Ca.), have introduced a comprehensive federal data privacy bill. The 132-page bill would grant individuals rights such as the ability to review what data is collected and to request deletion of their personal information. It would also require companies to limit their data collection and create an agency to enforce privacy protections. The bill includes an exemption for journalistic collection, which TPFP will analyze in the coming weeks.
The U.S. government has opened a retroactive national security review looking into a Chinese company’s $1 billion acquisition of the U.S. social media app Musical.ly. The company, ByteDance Technology Co., also owns the popular social media app TikTok. While the company acquired Musical.ly. in 2017, the Committee on Foreign Investment in the United States did not open an investigation until recently, after two senators raised concerns about China’s ownership of the popular applications. More newsrooms are using TikTok to connect with younger audiences.
Browser company Mozilla sent a letter to Congress defending its choice to encrypt domain name system lookups, which would obscure the ability of third parties like governments and internet service providers to observe the websites consumers visit. Mozilla pointed out how this data can be sold to third parties who can use the information for all sorts of purposes, including tracking the location of consumers. The letter came on the heels of a letter from internet service providers arguing that allowing browsers to encrypt DNS lookups would centralize too much of the DNS data among the few vendors that provide those encryption services.
Ars Technica published a piece this week titled “Antitrust 101.” Check it out for a comprehensive primer on the antitrust issues at play in the modern technology industry.
The Justice Department has sent a letter to publishers of “A Warning,” an upcoming book by an anonymous senior official in the Trump administration. In the letter, the DOJ states that the book’s publication may violate the official’s legal obligations, including “one or more nondisclosure agreements.” The author of the book is reportedly the same person who published an anonymous 2018 op-ed in the New York Times.
Gif of the Week: We understand if all this talk of SCA warrants and government surveillance has you pulling a Ron Swanson with your computer, but we urge you to resist the temptation.
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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.