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This Week in Technology + Press Freedom: Aug. 9, 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.

Journalist Barton Gellman talks with RCFP about his new book, ‘Dark Mirror: Edward Snowden and the Surveillance State’

TPFP’s Linda Moon recently discussed leaks, government surveillance, and protecting sources during a conversation with Barton Gellman, an award-winning journalist and author of “Dark Mirror: Edward Snowden and the Surveillance State.”

Gellman, now a staff writer at The Atlantic and senior fellow at the Century Foundation in New York, led The Washington Post’s reporting on classified National Security Agency documents he received from former intelligence officer and contractor Edward Snowden. The documents revealed the remarkable power of the NSA’s surveillance programs, and Gellman’s stories on the documents prompted national discussions about privacy and national security.

Gellman and Moon discussed the obstacles Gellman faced in obtaining and publishing accurate information while keeping himself and his sources safe.

Once Gellman found a credible source in Snowden, he looked for a news organization that would back him and bear any potential legal risks. This led Gellman to go to the Post, his former employer. With the Post’s support, he was able to scour tens of thousands of documents received from Snowden and break stories one by one.

Gellman has a long history of championing free speech. As the editor of his high school newspaper, Gellman commissioned stories about teen pregnancy. The school’s principal fired him for the stories and burned the printed newspapers. Gellman and two friends sued her on First Amendment grounds.

Gellman eventually won a favorable settlement, but by then he was in college and unable to publish the stories. “That taught me something about the efficacy of litigation,” he said. “Sometimes you win in principle but not in practice. It’s not always the right answer, but sometimes it’s indispensable.”

As a client of Reporters Committee attorneys, Gellman is currently pursuing government records mentioning his name through Freedom of Information Act litigation. He made a series of FOIA requests for those records over six years ago, after seeing his name in Snowden’s documents. Gellman’s FOIA case is as relevant as ever: As discussed below, the U.S. Department of Homeland Security has recently been gathering intelligence on journalists.

Gellman said that although he is sometimes persuaded by government officials not to publish certain material, other times publication is in the public interest. “If we didn’t have reporters making decisions on the margins,” he said, “then you would never know there was a torture program after 9/11. You would never know about secret prisons. You wouldn’t know about unlawful domestic surveillance.”

Gellman added, “Over the history of this country, people have done bad things with this national security power. They’ve experimented on human beings. And I just can’t accept a set of rules that would say the government is entitled to keep that secret forever.”

Sign up for This Week in Technology and Press Freedom to access the full interview.

— Sasha Peters

Quick Hits

The Reporters Committee recently filed a friend-of-the-court brief in Lokhova v. Halper, a case in the U.S. Court of Appeals for the Fourth Circuit. The plaintiff claimed that hyperlinks to previous news stories, as well as third-party tweets linking to those stories, constituted “republication” and restarted the statute of limitations clock on her defamation claims against four news organizations. The lower court disagreed. The Reporters Committee’s brief, joined by 29 media organizations, highlights the legal and policy concerns that would arise if the appellate court held otherwise.

The Reporters Committee, along with the Knight First Amendment Institute at Columbia University, also filed a friend-of-the-court brief in Alasaad v. Wolf, a case in the U.S. Court of Appeals for the First Circuit. A federal district court in Boston previously found that suspicionless border searches of electronic devices violate the Fourth Amendment, but held that border officers need only reasonable suspicion, rather than probable cause, to conduct such searches going forward. The plaintiffs, a group of U.S. citizens and one lawful permanent resident who had their devices searched at border entry points, now challenge that determination. The Reporters Committee’s brief in support of the plaintiffs highlights the implications of electronic device searches for newsgathering and argues that warrantless searches at the border violate the First Amendment.

The U.S. Department of Homeland Security removed Brian Murphy from his post as acting undersecretary for intelligence and analysis after The Washington Post reported that Murphy’s office compiled intelligence reports on two journalists who published unclassified information about DHS’s activities in Portland, Oregon. In response to the Post’s reporting, the Reporters Committee issued a statement noting that federal law “prohibits the creation of ‘dossiers’ on journalists precisely because doing so can morph into investigations of journalists for news coverage that embarrasses the government, but that the public has a right to know.”

A day after reports surfaced that the materials for a mandatory media training course taken by all Department of Defense personnel referred to protesters and journalists as “adversaries,” Defense Secretary Mark Esper directed the Pentagon to update the language to refer to those trying to obtain information as “unauthorized recipients.” Several former government officials criticized the language choice, including former Pentagon Press Secretary George Little, who called the characterization “appalling and dangerous.”

After the Trump administration withheld congressionally approved funds from The Open Technology Fund, a U.S. internet freedom organization, OTF was forced to stop 49 of its 60 projects, likely impacting the ability of millions of people around the world to access the internet and uncensored news from Voice of America. Notably, OTF works to protect journalists and their sources from digital attacks, raising concerns that halting support of its tools could threaten secure operating systems in surveillance-heavy countries and endanger those who rely on the organization’s work.

The White House is once again facing a lawsuit demanding that Trump’s personal Twitter account unblock users who are critical of him. Two years ago, a federal judge found that his blocking practices violated the First Amendment, a ruling upheld by an appeals court. The new lawsuit alleges that while Trump unblocked some critics, he refused to unblock, among others, those who were blocked before he took office.

The security firm FireEye recently reported that a group of hackers have been breaking into legitimate Eastern European news sites to spread anti-NATO disinformation. The disinformation campaign involves hackers spreading the fake news articles on social media before they are taken down. According to FireEye, the hacking operation has been active since at least March 2017.

Former CIA Director John Brennan details in his new memoir how the White House specifically restricted his access to classified files after he left the agency, a permission often granted to former directors who are writing books because the manuscripts undergo governmental review for national security information. Brennan alleged that access restrictions were in retaliation for his criticism of the Trump administration.

? Smart read ?

The National Security Agency has posted a public advisory on how to avoid location data tracking on mobile devices. Ultimately, if you really don’t want to be tracked, NSA officials say, leave your phone at home.

Gif of the Week: This marks the last newsletter for our colleague Linda Moon, who will be wrapping up her fellowship with the TPFP team early this week. We miss you already, Linda, and best of luck on the next chapter!

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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, and Legal Intern Sasha Peters.

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