This Week in Technology + Press Freedom: June 14, 2020
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.
Karem decision relevant for tech, press rights broadly
A federal appeals court ruled last week that the White House press secretary may not suspend Playboy correspondent Brian Karem’s press credentials as punishment for a verbal altercation between Karem and a former adviser to President Trump at an event in the White House Rose Garden last summer.
In a unanimous opinion, a three-judge panel from the Court of Appeals for the D.C. Circuit held that the decision to suspend Karem’s White House press pass for 30 days likely violated his Fifth Amendment right to due process. In doing so, the court adopted arguments advanced by the Reporters Committee as amicus that government officials must have reasonable and reasonably clear rules in place before denying or suspending press credentials.
While Karem’s case arose in the context of a due process challenge to the suspension of White House press credentials, the court’s logic could extend to First Amendment challenges regarding other laws implicating press rights.
In the technology space, the Computer Fraud and Abuse Act is especially vulnerable to challenge on the basis that it does not “give fair notice of conduct that is forbidden” to news organizations — which Judge David S. Tatel in Karem’s case held was a prerequisite for a law that impairs First Amendment rights.
The CFAA has been interpreted by the government and civil litigants to apply when the user of a computer or website violates the terms of service, which are often vague and subject to change at the whim of the system owner.
Similarly, the Espionage Act has been attacked repeatedly for vagueness in terms of how it applies to journalistic sources and activities. Read literally and in isolation, the Espionage Act could apply to the publication of government secrets by an individual who has sworn no oath to protect them. News organizations have been concerned for years that an aggressive prosecutor could try to prosecute a journalist for publishing classified information.
While that has not happened to date, the Justice Department came as close as it ever has in the Julian Assange superseding indictment, which alleges that the “pure publication” of secrets is enough to trigger Espionage Act liability.
Overly vague laws are of particular concern for journalists because they could lead to self-censorship and a chill on newsgathering and reporting. The Karem case is a helpful re-articulation of vagueness doctrine, and, unless successfully appealed to the Supreme Court, is likely to be cited in cases in a wide array of contexts applicable to the press.
— Gabe Rottman
Quick Hits
Reporters Committee Staff Attorney Sarah Matthews and Tracie Powell, a program officer with the Racial Equity in Journalism Fund at Borealis Philanthropy, recently spoke with members of the Institute for Nonprofit News to offer practical tips and guidance for reporters covering the protests against police violence and racial injustice. The discussion included how to navigate curfew rules and media exemptions, as well as advice on how journalists can approach their coverage with sensitivity.
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Prosecutors in the Southern District of New York filed a superseding indictment against Joshua Schulte, the former CIA employee accused of leaking hacking tools to WikiLeaks, after a jury deadlocked on most of the counts against him earlier this year.
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The Army, Navy, U.S. Special Operations Command and the U.S. Marshals Service have all purchased Crossbow devices, which appear to be advanced versions of Stingrays. Both are cellphone-tracking devices that collect data from phones by imitating cell towers, and their use by law enforcement has raised privacy concerns.
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Citing a report that a Customs and Border Protection drone was circling above the protests in Minneapolis on May 29, five members of the House sent a letter to the acting Secretary of Homeland Security, seeking details about the use of Department of Homeland Security resources to surveil protesters around the country.
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Location data issues came up in two contexts this week. In the first, the Wall Street Journal explained that a report from a digital accountability watchdog found that many COVID-19 contact-tracing apps are collecting user information for advertisements and potentially other purposes. Second, on behalf of two individuals, civil liberties groups filed a suit alleging that Los Angeles’s administrative plan to collect and retain historic and real-time scooter GPS location data is unconstitutional. Location data has the potential to reveal reporter-source relationships, among other sensitive information.
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On Monday, IBM CEO Arvind Krishna announced in a letter to Congress that the company will no longer offer facial recognition or analysis software. “IBM firmly opposes and will not condone uses of any technology … for mass surveillance, racial profiling, [or] violations of basic human rights and freedoms,” Krishna wrote in the letter. In the wake of IBM’s announcement, Amazon declared that it would halt police use of its facial recognition software for one year, and Microsoft President Brad Smith announced that Microsoft “will not sell facial recognition technology to police departments in the United States until we have a national law in place, grounded in human rights, that will govern this technology.”
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Reuters recently reported that officials at the U.S. State Department are expected to designate more Chinese state-controlled media outlets as foreign embassies, which would require the outlets to register their employees and property in the U.S. with the U.S. government.
? Smart read ?
Wendi C. Thomas, the founder, editor, and publisher of MLK50: Justice Through Journalism and a client of the Reporters Committee, recently published a piece describing her personal experience being surveilled by police officials, and the history of government surveillance of Black reporters and activists.
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Gif of the Week: A reminder to take some time for reflection and self-care.
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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.