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This Week in Technology + Press Freedom: April 19, 2020

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  1. Policy

Last week, the Reporters Committee for Freedom of the Press published a comprehensive survey of the laws of all 50 states and the five major U.S. territories for media-specific exemptions from government emergency management laws. The main takeaway: More than half of the states and territories have some press carve-out in their emergency laws.

The survey is one of many resources the Reporters Committee has produced for journalists and news organizations trying to navigate legal issues during the COVID-19 pandemic.

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.

White House attacks Voice of America

Voice of America is a multimedia news outlet funded by Congress and is the largest U.S. international broadcaster. It launched during World War II to broadcast via shortwave radio directly to Axis countries and beyond. (Shortwave radio can literally bounce off the atmosphere, allowing it to transmit over extraordinarily long distances.) In the years since, it’s become a popular and widely trusted source of news — particularly in countries with state-controlled media.

VOA is administered by an independent agency, the U.S. Agency for Global Media (previously called the Broadcasting Board of Governors), and there are legal firewalls to preserve its editorial independence.

VOA’s charter and a 1994 statute require that VOA reports be “accurate, objective, and comprehensive,” and that it present a “balanced and comprehensive projection of significant American thought and institutions.” The 2016 law that created the USAGM affirmed that the Secretary of State and the chief executive officer of the USAGM must respect the “professional independence and integrity” of VOA.

The White House attacked that independence last week. In its daily newsletter, “1600 Daily,” the White House wrote, “VOA too often speaks for America’s adversaries — not its citizens,” and criticized the outlet for reporting Chinese government statistics about the toll of COVID-19. (President Donald Trump also called the outlet a “disgrace” during his Wednesday COVID-19 press conference.)

In response to the newsletter, VOA Director Amanda Bennett said VOA had “thoroughly debunked” Chinese misinformation on COVID-19 and linked to a series of VOA reports on, among other things, China’s underestimate of the death toll in Wuhan.

The White House’s comments are notable for two reasons. First, as the Reporters Committee said on Twitter, “The White House attack on @VOANews is an assault on the independent news media at a time when people around the globe are relying more than ever on journalists to stay informed.” In other words, the broadside against VOA raises the same concerns as the White House’s derogatory comments about other news organizations.

Second, COVID-19 and the economic fallout from the pandemic are decimating local news. Similar to 2009many are already talking about direct government financial support, which can only work (as a practical and legal matter) if there are strong firewalls to prevent funding from either interfering with editorial independence or creating the appearance of interference.

In order to preserve the free flow of information, the government needs to lean into, not away from, protecting the editorial independence of news organizations, even if they accept government funding.

— Gabe Rottman

Quick Hits

Last week, the Reporters Committee, represented by the University of Virginia School of Law’s First Amendment Clinic, filed a friend-of-the-court brief in Soderberg v. Carrion, a case currently pending before the U.S. Court of Appeals for the Fourth Circuit. The case involves a challenge to Maryland’s “Broadcast Ban,” which prohibits journalists from broadcasting recordings of criminal proceedings that the state itself has made public. The brief argues the ban hinders reporting on the judicial system, thus depriving the public of newsworthy information.

Reality Winner, the former U.S. government contractor who pled guilty to leaking a classified intelligence report on Russian government interference, recently requested that a federal judge in Georgia allow her to serve the remainder of her prison sentence from home due to health concerns related to the COVID-19 pandemic.

In the wake of the recent announcement that Apple and Google would combine efforts to address COVID-19 and develop a type of contact-tracing app, lawmakers and privacy advocates have called on the companies to keep the data collected via the screening tools confidential and to refrain from using the data for commercial purposes in the future. Apple last week responded, saying it would include “strong privacy and security protections” and that the company will “never” sell the data it collects.

Following a court order to expand on FBI review procedures in light of the Justice Department’s Inspector General report on errors in the Carter Page foreign intelligence surveillance application, the DOJ division responsible for parts of the review process revealed that at least two applications in 2019 contained “material errors or omissions.” The government determined there was still probable cause to justify securing the surveillance orders.

Relatedly, the head of the DOJ’s National Security Division told the Wall Street Journal that the expiration in March of several provisions in the Foreign Intelligence Surveillance Act has precluded the Justice Department from seeking business records related to targets between “five and 10 times.” Privacy advocates, including those at the Brennan Center for Justice, indicated skepticism about the government’s claim, noting that the government has a tendency to paint “the most dire picture” whenever there may be a loss of authorities.

? Smart read ?

Professor Orin Kerr of the University of California, Berkeley School of Law predicts the Supreme Court may take up a case to resolve a circuit split on whether violations of a website’s terms of service might constitute a violation of federal hacking laws.

Gif of the Week: While many are relying on Zoom for their meeting needs, we keep getting a certain song stuck in our head from the late ’90s TV movie “Zenon: Girl of the 21st Century.”

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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.