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This Week in Technology + Press Freedom: Aug. 2, 2020

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  1. Policy

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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.

Webinar offers journalists tips for covering protests, pandemic safely and securely

On July 23, TPFP’s Linda Moon joined author and digital strategist Tim Schwartz for a presentation titled “Press Rights and Digital Safety During Pandemic and Protest.”

During the virtual discussion hosted by Alley, a digital consulting firm, Moon and Schwartz discussed source protection, the right to record police and protests, and collaborating with colleagues safely while working from home.

“All the legal protections for journalists and sources do not change because you’re working remotely or outside of your newsroom,” Moon said. “Everything that applied before still applies in the remote setting.”

The protections do vary, however, depending on where you are and who is interested in the materials you want to keep confidential. California and New York, for example, have strong shield laws, but there is no federal shield law that applies to federal law enforcement — just federal case law, which varies by jurisdiction, and the Justice Department’s internal media policy.

The pandemic and the Black Lives Matter protests have also raised questions about the legal right of reporters to travel and report during coronavirus lockdown orders and protest-related curfews, although most orders have included exemptions for newsgathering. Courts have not squarely addressed whether such orders are required to exempt journalists, but Moon said a lockdown order without a media exemption may violate the First Amendment.

Working from home highlights the risk that law enforcement can seize a journalist’s communication records from electronic service providers without the journalist knowing about it. That’s because gag orders can prevent the service providers from informing the reporter that their information has been shared.

Law enforcement tools and discovery or subpoenas in civil suits can be used to compel disclosure of sensitive information, and journalists have also been subject to malware attacks.

In the face of these challenges, Schwartz, author of “A Public Service: Whistleblowing, Disclosure and Anonymity,” said that information control is key to preserving source confidentiality.

For communicating securely with sources, Schwartz recommended using systems, like Signal or Wire, that have end-to-end encryption, limit logging, and have a track record of publicizing any requests they receive from law enforcement.

Finally, Schwartz encouraged people to think about the security of their phones when they are at a protest, including how it unlocks (it is easier to forcefully unlock a phone that uses facial recognition than one with a passcode) and whether to leave metadata on or use a burner.

The most important thing, though, is to think about security ahead of time and practice it.

“Make it a priority to talk about security with those you work with, whether it’s sources or those you collaborate with at work,” Schwartz said. “Make it a top-down and bottom-up priority.”

Register here to watch the entire webinar.

— Abe Kenmore

Quick Hits

On July 23, a Superior Court judge in King County, Washington, ruled that the Seattle Times and four local TV stations must comply with a Seattle Police Department subpoena for unpublished photos and video taken during a May 30 protest against police brutality. The news organizations argued that the subpoena would harm journalists by making them seem like an extension of law enforcement rather than neutral observers. Attorneys for the Reporters Committee filed a friend-of-the-court brief arguing the subpoena would violate the First Amendment and state law in addition to putting reporters at risk.

Twitter CEO Jack Dorsey apologized on July 23 for a security breach that allowed hackers, as part of a bitcoin scam, to access 130 accounts and tweet from 45 of them. The hackers also viewed private messages for 36 of the accounts. Dorsey said the company is cooperating with the FBI to investigate the incident, which allegedly occurred after the “manipulation” of several Twitter employees.

Seventeen internet freedom organizations, including the Electronic Frontier Foundation and Wikimedia, filed a friend-of-the-court brief in a case against Michael Pack, the newly appointed head of the U.S. Agency for Global Media, for exceeding his authority when he fired the directors of the Open Technology Fund. Their brief emphasizes the importance of OTF’s independence from the government to ensure it can fulfill its anti-censorship mission worldwide.

According to Department of Justice emails released in response to a Freedom of Information Act request, a DOJ official told Neil McCabe, a One America News Network reporter, that McCabe “should reach out to FBI” in response to McCabe’s email asking if the DOJ was “cool with” National Public Radio hosting an encrypted tip line. “How is it then, that federal government employees could be running their own private silo for information about crimes or national security risks?” McCabe asked in one email to the DOJ, mistakenly referring to NPR reporters as government employees.

A federal judge issued a temporary restraining order barring federal law enforcement in Portland from arresting and enforcing dispersal orders against journalists and legal observers. As Judge Michael Simon wrote, “Without journalists and legal observers, there is only the government’s side of the story to explain why a ‘riot’ was declared and the public streets were ‘closed’ and whether law enforcement acted properly in effectuating that order.”

Filipino journalist Maria Ressa, who has critically covered President Rodrigo Duterte’s war on drugs, moved to dismiss a second cyber libel complaint following her conviction for an initial cyber libel charge in June, both filed by the same business executive. The basis for the second complaint is a tweet Ressa posted, after being arrested for the first charge, linking to a 2002 news story about the executive that alleged he was involved in a murder. The Reporters Committee has previously detailed the problematic implications when governments invoke cybercrime laws like the one here to silence reporters and their sources.

In written testimony submitted ahead of a House Natural Resources Committee hearing, Major Adam DeMarco of the D.C. National Guard said that police sped up clearing efforts and used excessive force on protesters in Lafayette Square on June 1. Contradicting statements from Park Police and Attorney General William Barr, DeMarco said the plan was initially to clear out protesters after the 7 p.m. curfew, but was carried out earlier for President Trump’s photo op. The Reporters Committee sent a letter to the committee in connection with an earlier hearing, expressing concern about the Park Police’s attack against an Australian news crew.

? Smart read ?

Speaking of legal protections for journalists, this article argues that in cases implicating First Amendment concerns similar to those in “leak” prosecutions, those considerations have historically been a mitigating factor at sentencing.

Gif of the Week: Trying to explain some of this social media news to our older relatives.

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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, Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert, Policy Interns Abe Kenmore and Joey Oteng, and Legal Intern Sasha Peters.