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This Week in Technology + Press Freedom: Feb. 16, 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.

A technology venture capitalist’s unusual demand to identify a journalist’s confidential source

Last week, the TPFP team’s Linda Moon appeared in a federal court in New York on behalf of the Reporters Committee and the U.K.-based Media Legal Defence Initiative in support of journalist Marcus Baram, who is fighting an extraordinary demand that he reveal a confidential source.

The case involves an exceedingly rare scenario: an application under a statute, which is normally used to seek cross-border discovery in commercial litigation, to force a reporter to disclose a confidential source’s identity.

During the hearing, Moon reiterated points made in a friend-of-the-court brief filed by the Reporters Committee and MLDI in December. The brief argued that the court should use its broad discretion under the discovery law, known as section 1782, to reject the application.

It cited the First Amendment, state shield laws, and the recognition of a reporter’s privilege in many federal courts to highlight the protection of confidential sources as an essential part of newsgathering.

The dispute arose when Baram published an article in Fast Company, a New York business and technology magazine, regarding the 2017 arrest in London of venture capitalist Shervin Pishevar, co-founder of Hyperloop One. Baram’s article referenced a City of London Police report, which he received from a confidential source.

Following an internal investigation, the City of London Police determined the report was forged. Pishevar is arguing that a source who provides false information loses confidentiality protections, and he wants the source’s identity for possible legal action in the United Kingdom.

Even with the forged report wrinkle, however, the law in this jurisdiction is clear: Confidentiality must be protected except in the most extraordinary cases. Courts have never considered the truthfulness of information provided by a source as a factor in denying the reporter’s privilege, and there is only one case where the U.S. Court of Appeals for the Second Circuit found that the privilege was overcome (in a terrorism investigation).

The Reporters Committee and MLDI also pointed out how unusual it is for a private individual based in the U.S. to use section 1782 to compel a U.S.-based journalist to disclose his confidential source. The Reporters Committee is not aware of even a single case where a court granted such a request under section 1782.

The magistrate judge presiding over the hearing indicated he was inclined to quickly resolve the case. We’ll keep you posted as we learn more.

Emma Lux and Linda Moon

Quick Hits

Privacy and Surveillance

The New York Post reported that the New York Police Department sought data from the Twitter account of one of its reporters, Police Bureau Chief Tina Moore. The subpoena to the social media company cited an obscure provision of the Patriot Act that amended the Cable Communications Policy Act. The NYPD reportedly withdrew the subpoena after the Post’s legal team contacted the department.

The Wall Street Journal recently reported that immigration officials have purchased access to a commercial database that contains the location data of millions of cellphones in America. Officials are reportedly using the data for investigations along the border. It is unclear whether journalists’ data is being collected or analyzed, but if it is, the story could have serious implications for reporters and sources.

As tech and media companies struggle to comply with the California Consumer Privacy Act, numerous start-ups are joining the mix to make it easier for users to manage their personal data. Meanwhile, the California attorney general has issued updated preliminary guidance on how the state government interprets the law. We’ll continue to monitor developments for any effects of the law on reporters or news organizations.

Several of the largest social media companies have sent cease-and-desist letters to a facial recognition firm, Clearview AI, which was the subject of a recent New York Times report detailing its mass accumulation of online pictures and relationship to law enforcement. Facebook, Twitter, YouTube, and Google have all reportedly demanded that Clearview stop scraping user accounts for pictures.

Legislative Developments

Sen. Josh Hawley (R-Mo.) called for the Federal Trade Commission to be integrated into the Justice Department as a way, he claims, to improve policing of the tech industry. Hawley’s plan would eliminate the five independent commissioners of the FTC in favor of a single director reporting to the attorney general.

This week, the Justice Department will hold a workshop in Washington, D.C., titled “Section 230 – Nurturing Innovation or Fostering Unaccountability.” The workshop features an array of practitioners, government officials, and academics who will discuss the applications and implications of the law.

National Security and Leaks

Last week, a federal judge considering Amazon’s challenge to the Pentagon’s handling of a $10 billion cloud computing contract ordered the government to stop working on the creation of the Joint Enterprise Defense Infrastructure program. Amazon has alleged that the denial of the contract stemmed from the president’s personal animus toward Amazon founder and Washington Post owner Jeff Bezos.

A federal district judge in Massachusetts will permit the limited release of documents related to two grand juries that were convened to investigate the leak of the Pentagon Papers, a history of the Vietnam War leaked to the press by military analyst Daniel Ellsberg. The documents were sought by Jill Lepore, a Harvard University professor and writer for the New Yorker.

Smart Reads

Orin S. Kerr, a professor of law at the UC Berkeley School of Law, writes that the current encryption debate has its roots in the 1807 treason trial of Aaron Burr. (Yes, that Aaron Burr, sir.)

Gif of the Week: We will now be reading all future stories about encryption while listening to the “Hamilton” soundtrack.

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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.