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.
What the new ruling in Alasaad v. McAleenan means for journalists crossing the border
The Fourth Amendment bars unreasonable searches and seizures of people, property, and homes by typically requiring a warrant supported by probable cause to believe that a crime has been, is, or will be committed.
Border officials, however, have long asserted — and courts have recognized — the “border search exception,” which permits warrantless searches at the border. The basic theory is that you can search persons and possessions without a warrant because the government interest in enforcing customs and immigration laws makes such searches “reasonable” even without a warrant.
The advent of widely available, portable electronic devices — with the ability to store a life’s worth of private data — has made such searches all the more controversial as they grow increasingly invasive with technological advances.
In an important decision last week, a federal court in Boston ruled that federal agents cannot rely on this doctrine to conduct suspicionless searches of travelers’ electronic devices at the border and other U.S. ports of entry. We’ve received an important question: What does this mean for journalists traveling internationally who are worried about exposing confidential journalistic material or source contacts stored on their electronic devices?
The short answer is that journalists crossing the border should take comfort in the court’s ruling (and congratulations to the American Civil Liberties Union and Electronic Frontier Foundation for the win!), but they should continue to take the same digital security measures recommended by the Reporters Committee and Committee to Protect Journalists, among others.
This is partially because the ruling came from the district court, which means that the government has an opportunity to appeal the ruling to the appellate court and perhaps to the Supreme Court. Our caution also stems from incidents like the journalist tracking revealed by NBC 7 San Diego, which the Reporters Committee continues to investigate through Freedom of Information Act litigation. We’re not sure if border officials could adopt a position that reporting on border activities would actually confer reasonable suspicion that a journalist could have information related to border enforcement operations.
Additionally, plaintiffs in the lawsuit sought two types of relief — one requesting the court to “declare” that the government’s policies permitting searches absent probable cause are unconstitutional, and another asking the court to issue an injunction prohibiting border officials from conducting suspicionless searches. The district court partially granted the declaratory relief (the court found that the heightened standard of probable cause that plaintiffs sought was not warranted at the border), but it denied the injunctive relief without prejudice, meaning that plaintiffs are not barred from requesting this relief again in future proceedings.
While last week’s ruling is undeniably a step forward in ensuring Fourth Amendment protections at the border, caution should remain the order of the day, particularly for journalists. The best approach is to ensure you’re not carrying sensitive data when crossing international borders.
— Linda Moon
The whistleblower who exposed how the U.S. government kept tabs on reporters covering events on the southern border has identified himself as Special Agent Wesley Petonak, a nine-year veteran of the San Diego Homeland Security Investigations office. Petonak said he raised concerns with his superiors about the constitutionality of monitoring and stopping journalists, lawyers, and human rights activists, but they said it was standard practice. He eventually took photos of PowerPoint slides that alerted him to the dossier and shared the photos with NBC 7 San Diego. In response to learning about this surveillance, in May, the Reporters Committee joined a coalition of 103 organizations in sending a letter to the acting secretary of the U.S. Department of Homeland Security decrying the practice. The Reporters Committee and NBC 7 San Diego also filed a FOIA lawsuit against four government agencies for refusing to provide records about the “database or application” used to monitor and target journalists. This week, the American Civil Liberties Union also filed a lawsuit on behalf of five photojournalists who were targeted by the surveillance.
The city of Fullerton, California, filed its opposition to an appellate court’s decision to lift an injunction that would have prevented bloggers from publishing city documents. As a quick review of the case, the city had sent one of the bloggers a link to the city Dropbox account in response to a public records request that, the city claims, inadvertently provided access to a wide range of city documents. In its suit, the city alleged that the bloggers only had permission to access a small portion of these files. By allegedly accessing the other files, the city argues that they violated federal and state anti-hacking laws. The Electronic Frontier Foundation also filed a friend-of-the-court brief in support of the bloggers, echoing similar arguments advanced by Reporters Committee attorneys that the hacking laws target technical break-ins (e.g., hacking into a password-protected account), not, as is the case here, access to a publicly available Dropbox account.
Two updates on the “Section 215” reauthorization front: Congress passed, and the president signed, a continuing resolution to continue funding the government that included a 90-day extension to the expiration of the foreign intelligence surveillance law provision that allows the government to collect telephone metadata in bulk. Second, on the heels of hearings by the judiciary committees in both chambers of Congress, the Office of the Director of National Intelligence clarified that the Intelligence Community does not use Section 215 for warrantless collection of cellphone location information (determined by pinging cell towers or GPS data). Without fully ceding the authority to do so, the ODNI acknowledged that the Supreme Court’s decision in Carpenter v. United States, which mandated warrants for “cell-site location information” (a legal term of art) in domestic criminal investigations, makes the continued warrantless collection of such data a tenuous legal proposition.
Facebook revealed in its latest transparency report that the number of U.S. government demands for user data increased to 50,741 during the first half of this year, compared to 41,336 demands in the second half of last year. The company reported that it provided some account or user data to authorities in 88 percent of the cases, and that two-thirds of the U.S. authorities’ requests were accompanied by a “gag order.” The order prevents the company from revealing the request to the user. As we noted in a recent friend-of-the-court brief, the use of gag orders poses more serious problems for newsgathering as more information held by third-party providers moves to the cloud.
A new report from the Pew Research Center found that the majority of Americans — 72 percent — believe that all or most of what they do online and on their cellphone is being tracked by companies, while 47 percent think their activities are being tracked by the government. The report also stated that 31 percent of Americans believe all or most of their offline activities, such as where they go and who they talk to, are tracked by companies, while 24 percent think their offline activities are tracked by the government.
As we highlighted earlier this month, the Pentagon decided not to award a $10 billion cloud-computing contract to Amazon for the Joint Enterprise Defense Infrastructure, or JEDI, project. Amazon’s founder, Jeff Bezos, owns the Washington Post, and both he and the paper have been criticized by the President. Amazon said this week that it plans to officially challenge the government’s decision, contending that it was potentially influenced by improper political considerations.
The Justice Department reversed its position in a FOIA suit to obtain documents related to the investigation of former FBI Deputy Director Andrew McCabe, who was fired after an internal report found he had misled investigators about authorizing the release of information to the media. The government dropped its claim that the documents cannot be released on the basis of their relevance to an ongoing investigation, and the Justice Department filed a motion that would permit the plaintiffs in the case — Citizens for Responsibility and Ethics in Washington — to begin receiving the requested materials. This move suggests DOJ prosecutors may no longer be entertaining criminal charges against McCabe, though government attorneys declined to rule out that possibility.
A recent federal court ruling in a FOIA suit brought by the American Civil Liberties Union against the FBI will require the government to disclose whether it has records related to the use of social media surveillance tools on citizens and noncitizens alike. The ACLU brought the suit in light of public records indicating that the FBI was seeking contractors to help it develop ways of analyzing social media data.
Finally, last weekend and again this week, The New York Times and The Intercept shared details from hundreds of pages of secret Iranian intelligence cables. The New York Times also shared details from hundreds of pages of internal Chinese documents that were leaked anonymously. Look out for a more in-depth discussion of these leaks stories soon.
Bonus: The Freedom of the Press Foundation published this nifty guide about what to buy the security-conscious journalist in your life this holiday season.
Gif of the Week: There’s been a lot of talk about surveillance and privacy this week, and we couldn’t help but think of this classic film about “neighborly” surveillance.
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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.