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This Week in Technology + Press Freedom: Dec. 15, 2019

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  1. Policy

Happy birthday to the First Amendment!

Today, we celebrate the anniversary of the ratification of the Bill of Rights. Ratified on Dec. 15, 1791, the Bill of Rights included the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” To learn more about First Amendment issues and test your press freedom knowledge, check out our Protect Press Freedom campaign.

In our final newsletter of 2019, 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.

House passes expansion to Intelligence Identities Protection Act

Last summer, the CIA began quietly pushing for an expansion of the Intelligence Identities Protection Act, one of the few laws that criminalizes the publication of truthful information about government activities. The IIPA, as originally passed in 1982, was significantly narrowed after six years of debate to protect the identities of undercover intelligence officers and U.S.-citizen agents whose overseas service or activities put them in “special danger” if their identities were disclosed.

The expansion removes the overseas service or activity requirement, which would criminalize the disclosure of the identity of these “covert agents” in perpetuity, whether or not they have ever served abroad and even after their retirement or death. (“Covert agent” is the defined term in the law, and turns on whether the person’s identity or relationship with the government is classified.)

Highlighting such concerns and explaining how the proposed expansion could “chill reporting in the public interest,” the Reporters Committee recently coordinated a letter on behalf of 38 media organizations, urging Congress to reject the expansion or support future amendments to the law. The Reporters Committee also joined a letter led by Open The Government and signed by 29 open government and press freedom organizations similarly in opposition.

On Wednesday, without any meaningful debate over the issue, the U.S. House of Representatives approved the proposed expansion of the IIPA as part of the annual National Defense Authorization Act, which included intelligence authorization language (authorization bills create the legal authority for government activities and permit Congress to appropriate funds). The vote was 377 to 48. A Senate vote is expected next week.

If the IIPA expansion is enacted, which most expect it will be, individuals who have not pledged to protect government secrets, including the press, could be investigated and prosecuted under the new law for identifying undercover intelligence officers, even when that information is newsworthy and disclosure would present little risk of harm.

The expansion would also criminalize the disclosure of the identities of U.S. citizen informants active in the United States. During the Church and Pike committee hearings into intelligence abuses in the 1970s, revelations that the intelligence agencies had used witting and unwitting agents in philanthropy, the media, religious institutions, and in other sensitive areas of civil society and business generated significant controversy and prompted Congress to carve these informants out of the 1982 law.

The legislative history of the IIPA makes clear that Congress intended the law to be limited to instances where the discloser specifically intends to “name names” as his or her primary mission, and where disclosure could lead to loss of life. The original legislation passed following six years of debate so it would not “chill or stifle public criticism of intelligence activities or public debate concerning intelligence policy.” The expansion could lead to such chill.

For more information on the IIPA, please see our special analysis, which highlights op-eds, news articles, and blog posts from the Reporters Committee and our coalition partners.

— Linda Moon & Melissa Wasser

Quick Hits

The U.S. District Court for the Eastern District of Virginia denied four motions to dismiss filed by Daniel Hale, a former Air Force service member accused of leaking classified documents about the “targeted killing” drone program. In one of the motions to dismiss, Hale argued that the Espionage Act charges against him were unconstitutionally overbroad and vague. The TPFP team has previously discussed the implications of Hale’s case and the amicus brief filed by the First Amendment Clinic at the University of Virginia School of Law representing the Reporters Committee.

A college student in California has filed a class-action lawsuit against the video-sharing app TikTok, alleging the company secretly “vacuumed up and transferred to servers in China vast quantities of private and personally-identifiable user data.” By doing so, the complaint alleges, the company violated the Computer Fraud and Abuse Act, as well as the California Comprehensive Computer Data Access and Fraud Act. TikTok, a popular app among the youths young people and some newsrooms, is owned by the Chinese firm ByteDance, and has faced scrutiny from U.S. lawmakers in recent weeks.

Speaking of the CFAA, the TPFP team is following the case of Sandvig v. Barr (previously Sandvig v. Sessions), a lawsuit challenging the constitutionality of the CFAA filed in 2016 and brought by the ACLU in the U.S. District Court for the District of Columbia. The plaintiffs are academic researchers and First Look Media, the publisher of the Intercept, who hope to investigate allegations of online discrimination by websites, but are concerned that their behavior could trigger liability under broad interpretations of the CFAA. As Andy Sellars at Boston University School of Law pointed out, the court recently ordered the parties to file memoranda by Dec. 13 clarifying their interpretations of the CFAA. The plaintiffs and the government filed their respective responses. The court’s order comes after summary judgment briefing and oral argument in the case.

Last week, The Washington Post published “The Afghanistan Papers” — a trove of documents that revealed how senior U.S. officials misled the American public about the war in Afghanistan. The Post obtained the documents as a result of a three-year public records legal battle with the Office of the Special Inspector General for Afghanistan Reconstruction. Many have drawn parallels between the Afghanistan Papers and the Pentagon Papers, which detailed government efforts to mislead the public about the Vietnam War and spurred the famous Supreme Court case. Daniel Ellsberg, who leaked the Pentagon Papers, said of both wars recently that “The presidents and the generals had a pretty realistic view of what they were up against, which they did not want to admit to the American people.”

Members of Congress on both sides of the aisle are reportedly in support of allowing the call detail records authority in foreign intelligence law to lapse. The program was set to expire this month, though Congress recently authorized a three-month extension. The Reporters Committee has previously detailed how indiscriminate, or “bulk,” collection of metadata can impact newsgathering and compromise reporter-source confidentiality.

In Amazon’s challenge over its bid for the government’s Joint Enterprise Defense Infrastructure project, the company unveiled its complaint against the Department of Defense. The company alleges that President Trump has wielded inappropriate influence over the selection process and “has made no secret of his personal dislike for Mr. Bezos, Amazon, and the Washington Post, or of his express desire to harm them.” Read TPFP’s previous analysis on the case.

In a speech delivered to state law enforcement officials in Washington, D.C., last week, Attorney General William Barr said that the Justice Department is taking a close look at Section 230 of the Communications Decency Act and the protection it affords technology companies. Barr said the DOJ is considering recommending possible changes to the law. The move comes in the wake of lawmakers’ increased scrutiny of tech companies.

Last Monday, political commentator and former digital video executive and opinion writer at The Hill John Solomon published an op-ed in the Wall Street Journal arguing for “guardrails” that would apply to Congressional call records demands. He argued for protections similar to those included in Justice Department guidelines for obtaining records from the press and the “sensitive investigations” policies in the FBI’s Domestic Investigations and Operations Guide. Solomon wrote the op-ed after phone records disclosed during the impeachment inquiry revealed that he spoke with President Trump’s personal attorney Rudy Giuliani and Giuliani associate Lev Parnas.

The piece implies that these executive branch protections apply when the Justice Department seeks records from non-media targets who may have been in contact with the media, which is not the case. Here, there is no indication that Congress sought records directly from Solomon’s account. So even were one to apply protections similar to those in the Justice Department guidelines and DIOG to Congressional subpoenas, those protections would not have affected a records demand from Giuliani or Parnas (unless they were covered under another category of “sensitive investigation” under the DIOG).

Crucially, reporters and news organizations should always be aware that records of their communications (and the communications themselves) may be collected “incidentally” when communicating with individuals under possible scrutiny by any government entity. Accordingly, reporters should take appropriate digital security precautions in these situations, including the use of encrypted communications. Reporters should also be cognizant that metadata can be difficult to obscure even when using secured communications applications or services. This possibility is particularly acute when communicating with non-U.S. persons overseas in areas of interest to U.S. foreign policy. Additionally, the Reporters Committee has and will continue to oppose any Congressional subpoena that seeks to compel the disclosure of anonymous sources (see, for instance, the Thomas Brandt case, number 26 in our updated leaks chart). That does not appear to be the fact pattern here.

Gif of the Week: Our quick hits on the CFAA have inspired this week’s gif of the week, from the holiday film “Die Hard” (by the way, the Netflix “The Movies That Made Us” episode on the John McTiernan classic is worthwhile). In the movie, Theo brings both his hacking skills and his “charming personality” to Hans Gruber’s team of heisters.

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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.