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This Week in Technology + Press Freedom: Feb. 23, 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 special analysis examining the NYPD’s demand for data from a reporter’s Twitter account

As we noted last week, The New York Post recently reported that the New York Police Department subpoenaed Twitter for data from the account of one of the Post’s reporters, Police Bureau Chief Tina Moore.

Notably, the subpoena to the social media company cited an obscure provision of the USA Patriot Act, a provision that actually amended the Cable Communications Policy Act. The NYPD reportedly withdrew the subpoena after the Post’s legal team contacted the department, but the department’s initial overreach is certainly troubling.

TPFP Director Gabe Rottman wrote a special analysis on the “bizarre” subpoena, providing more context on that obscure provision and exploring some possible explanations for why the NYPD may have cited the Patriot Act.

Read the special analysis.

Quick Hits

Privacy and Surveillance

Facial recognition software firm Clearview AI faces (pun possibly intended) yet another class-action lawsuit for violations of a biometrics law in Illinois. The same state privacy law was cited in a lawsuit Facebook recently settled for $550 million over the social media company’s face scanning of user photographs. Law enforcement or companies can track journalists or their sources using this technology, which is what appears to have happened to the New York Times reporter who broke the news on Clearview AI.

Newsgathering

On Tuesday, a federal court in New York rejected an attempt to compel a journalist to disclose a confidential source in contemplation of foreign proceedings. The order cited a friend-of-the-court brief filed by attorneys for the Reporters Committee and the Media Legal Defence Initiative in support of journalist Marcus Baram. As we noted last week, TPFP’s Linda Moon appeared in a hearing on behalf of RCFP and MLDI to emphasize the arguments in the brief.

The Texas Observer recently described how it has used drones in its reporting. It also highlighted how the use of drones for newsgathering in Texas could run afoul of state law, which broadly prohibits drone “surveillance,” regardless of where the drone is located. As the Observer points out, the National Press Photographers Association, the Texas Press Association and other groups are suing Texas officials, arguing that the law violates the First and Fourteenth Amendments.

Platform News

Sen. Ron Wyden (D-Or.) last week published a pointed op-ed in the Washington Post warning of the politicization of the debate around the now-controversial internet law he co-authored. Discussing attempts to amend or repeal Section 230 of the Communications Decency Act, Wyden wrote, “Whenever laws are passed to put the government in control of speech, the people who get hurt are the least powerful in society.” The piece was published ahead of a workshop on the law hosted by the Department of Justice last week.

On Wednesday, Reporters Committee attorneys filed a friend-of-the-court brief in La Liberte v. Reid, a defamation case in the U.S. Court of Appeals for the Second Circuit. The case revolves around several tweets from journalist Joy Reid, a host on MSNBC. The brief argues that the fee-shifting provision of the California anti-SLAPP law should apply in federal court, among other arguments.

Google is reportedly in talks to pay publishers to license their content for a “free” news service. Facebook and Apple last year both launched aggregated news services (Facebook News and Apple News+, respectively).

Legislative Developments

The Washington State Senate has passed a consumer privacy bill similar to the California Consumer Privacy Act that would grant residents more control over their digital data. Privacy advocates are lauding the bill as one of the stronger data-privacy regulations proposed in the United States.

National Security and Leaks

The extradition hearing of Wikileaks founder Julian Assange is set to begin tomorrow in the United Kingdom. Assange faces charges in the United States under the Computer Fraud and Abuse Act and the Espionage Act. Notably, three charges under the Espionage Act are based solely on the act of publishing classified information — making this the first time the Justice Department has ever secured a grand jury indictment on that legal theory.

Last week, former Defense Intelligence Agency analyst Henry Kyle Frese pled guilty in the U.S. District Court in Eastern Virginia to willful transmission of top secret national defense information. In October, the Justice Department announced charges against Frese, alleging he disclosed information to two journalists. Frese faces up to 10 years in prison. His case is the eighth involving a journalistic source under the current administration and the 18th since 2009.

Joshua Schulte, the former CIA employee accused of a 2017 leak of agency hacking tools to Wikileaks, has filed a classified motion for a mistrial, citing prosecutorial failure to provide evidence that could exonerate him.

Gif of the Week: This week’s newsletter features some important stories for journalists who use social media for their reporting, especially “The Twitter.”


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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.