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This Week in Technology + Press Freedom: Nov. 17, 2019

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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 Warning’ … from the Justice Department

As we flagged last week, the Justice Department sent a letter to publishers of “A Warning,” a book — set to be released Nov. 19 — by an anonymous senior official in the Trump administration who is believed to be the same person who published an anonymous 2018 op-ed in the New York Times. In the letter, Joseph H. Hunt, assistant attorney general of the Justice Department’s Civil Division, warns that the book’s publication may violate the official’s legal obligations, including “one or more nondisclosure agreements” that the official may have signed if the author is indeed a current or former senior official in the Trump administration.

Hunt states that the nondisclosure agreements are “routinely required with respect to information obtained in the course of one’s official responsibilities or as a condition for access to classified information.” The letter goes on to say that the agreements “typically require that any written work potentially containing protected information be submitted for pre-publication review.”

Hunt appears to be referring to both “pre-publication review” requirements in agreements officials sign to access classified information and nondisclosure agreements that the administration has reportedly required officials to sign that are not limited to classified information. The Knight First Amendment Institute at Columbia University has challenged the former types of agreements, providing a helpful chart detailing which agencies typically require pre-publication review, and what that process looks like. Regarding the latter agreements, there are questions as to whether they would be enforceable.

For the traditional national security pre-publication review agreements, Hunt cites a case called Snepp v. United States, which upheld the application of “constructive trusts,” allowing the government to collect proceeds from book sales when the author failed to submit the book for advance review.

The case centered on a former CIA employee who published a book in 1977 called “Decent Interval,” which included his critical observations on the government’s involvement in Vietnam. In the lawsuit, the government asserted that the book’s author, Frank Snepp, had signed a “secrecy agreement” obligating him to submit any manuscript he wrote to the government for pre-publication review. Snepp refused to do so before publishing the book with Random House, and the government sued him for breach of contract in the U.S. District Court for the Eastern District of Virginia. The government sought to obtain the rights in and profits from the book.

On appeal of the district court’s decision in favor of the government, Reporters Committee attorneys argued in briefs filed with the U.S. Court of Appeals for the Fourth Circuit and the U.S. Supreme Court that requiring employees to agree to pre-publication review as part of their employment contracts violated the First Amendment. “[I]f this so-called ‘contract’ and the remedies sought to enforce it are upheld … this Court will have fashioned a civil ‘Official Secrets Act’ doctrine which may be imposed by ‘contract’ on any government employee and will result in the most severe censorship of government information,” the Fourth Circuit brief noted.

Even though the government conceded that Snepp’s account did not reveal classified or non-public information obtained during his employment, the appeals court ultimately upheld the lower court’s ruling against Snepp. The Supreme Court also held in favor of the government, saying, “Undisputed evidence in this case shows that a CIA agent’s violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA’s ability to perform its statutory duties.”

This case then paved the way for the government to file similar lawsuits against other former employees. In September, the DOJ filed a lawsuit against former National Security Agency contractor Edward Snowden seeking to recoup profits from his book, “Permanent Record,” based on his failure to submit the manuscript for pre-publication review.

According to ABC News, the publishers of “A Warning” have so far refused to provide any information to the Justice Department. The New York Times reports that the publishers have pledged and taken steps to maintain the author’s anonymity.

Of course, this is more a national security issue than a straight technology story, but, increasingly, issues involving anonymous speech are wrapped up in technology as so much of our communications go digital. Given the potential implications for anonymous journalistic sources, the TPFP team will continue to follow these types of matters.

— Lyndsey Wajert

Quick Hits

We have an update from the city of Fullerton, California’s “hacking” case against local bloggers for allegedly accessing the contents of a Dropbox account the city shared with various records requesters, including one of the defendants: A California court of appeals issued a temporary stay of a lower court’s “gag order” preventing the continuing publication of the city’s documents. Last week, the Reporters Committee filed an amicus brief in support of the bloggers, highlighting the city’s misuse of hacking laws and the potential harm it could pose to newsgathering.

Major tech platforms are divided on how to moderate content from users speculating about the identity of the whistleblower whose complaint set off the impeachment inquiry. While Facebook and YouTube are removing references to the alleged CIA officer’s name and photo, Twitter has stated it would permit certain references. Twitter’s spokesperson said, “Per our private information policy, any tweets that include personally identifiable information about any individual, including the alleged whistleblower, would be in violation of the Twitter Rules.” The Twitter policy permits “sharing information that is publicly available elsewhere, in a non-abusive manner.” (Some publications and activists have named the suspected whistleblower.) Separately, Rep. Eric Swalwell (D-Calif.) warned via Twitter that he will introduce legislation that could impose criminal liability on individuals who “out a whistleblower.”

The Justice Department charged two former Twitter employees with acting as unregistered foreign agents for Saudi Arabia, accusing them of accessing information on dissidents who used the platform. One of the former employees has been accused of accessing the personal information of thousands of users, including the account of a prominent dissident who was close to Jamal Khashoggi. The United Nations Special Rapporteur for extrajudicial, summary, or arbitrary killings found in June that Khashoggi, a Washington Post Global Opinions contributing columnist and former broadcaster in Saudi Arabia, was the victim of a premeditated extrajudicial execution, for which the state of Saudi Arabia is responsible.

The Trump administration is moving forward with plans to set up a new National Vetting Center that would permit immigration agencies to access classified information consolidated from sources including the National Security Agency’s electronic communications surveillance programs and human intelligence collected by the CIA. Critics have been concerned about “mission creep” at the center and the potential for it to target certain populations for special scrutiny.

At a Nov. 6 Senate Judiciary Committee hearing, Trump administration officials called for permanent reauthorization of the current “business records” provision in foreign intelligence surveillance law, which was significantly expanded by the USA Patriot Act in 2001 and then amended in the 2015 USA Freedom Act. The latter passed following revelations that the provision was being used to collect telephone metadata in bulk. A bipartisan group of senators pushed back against a permanent renewal, expressing the most skepticism about reauthorizing the authority that would permit broad metadata collection, which survived, with some changes, in the Freedom Act. The NSA paused the program because it was plagued by compliance issues.

A federal court in Boston ruled on Nov. 12 that the search of electronic devices without reasonable suspicion of crime violates the Fourth Amendment. Lawyers for the American Civil Liberties Union and the Electronic Frontier Foundation brought the lawsuit on behalf of 10 U.S. citizens who traveled internationally and said U.S. border agents conducted illegal searches of their smartphones and laptops. The Reporters Committee, along with the Knight First Amendment Institute, filed a friend-of-the-court brief in support of the plaintiffs, detailing how suspicionless searches of electronic devices at the border chill newsgathering activity.

The U.S. Court of Appeals for the Ninth Circuit denied professional networking site LinkedIn’s petition for rehearing by the entire bench in a Computer Fraud and Abuse Act case against a company accused of “scraping” public information from LinkedIn profiles. This ruling leaves in place the Ninth Circuit’s prior affirmation of a lower court’s preliminary injunction prohibiting LinkedIn from blocking access to publicly available LinkedIn profiles. More broadly, as the Reporters Committee explained in September, the rationale behind this decision could be extended in other cases to find that scraping publicly available information, an important tool in data journalism, does not violate the CFAA.

Gif of the Week: Well, it’s classified.

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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.