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This Week in Technology + Press Freedom: March 1, 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.

Julian Assange’s defense team fights extradition to U.S., calls charges ‘political offenses’

The extradition hearing for Julian Assange started last week in the Woolwich Crown Court in London, with the Wikileaks founder’s defense team telling the court he should not be extradited because the charges constitute “political offenses.”

In April 2019, British police arrested Assange at the Ecuadorian Embassy in London, where he had been living for seven years. Hours later, U.S. officials released a previously sealed indictment charging Assange with conspiring to commit computer crimes. As TPFP Director Gabe Rottman wrote in a special analysis, “It’s a spare indictment, and other charges could be brought.”

Then, in May, a federal grand jury in the Eastern District of Virginia returned an updated indictment against Assange, adding 17 counts under the Espionage Act. Rottman noted that the new charges added “an unprecedented level of complexity to the First Amendment issues in the case.”

The U.S. government is now seeking Assange’s extradition in order to prosecute him on both the computer crime and espionage charges.

The U.S. and the U.K. have a treaty that prohibits extradition of a person if the charges are considered “political offenses.” Alternatively, the judge can consider whether the charges are “politically motivated.”

Edward Fitzgerald, Assange’s lawyer, told the court that the prosecution encompassed both. “The offenses with which Mr. Assange is charged, and for which his extradition is sought, are, on the face of the extradition request itself, political offenses,” he said. In opening arguments, Fitzgerald also called the prosecution “politically motivated,” citing the Obama administration’s decision not to bring charges on the same set of facts (though it did bring an unprecedented number of criminal cases against national security “leakers”).

James Lewis, an English barrister representing the U.S. government, responded: “These are ordinary criminal charges and any person, journalist or source who hacks or attempts to gain unauthorised access to a secure system or aids and abets others to do so is guilty of computer misuse,” he said. “Reporting or journalism is not an excuse for criminal activities or a licence to break ordinary criminal laws.”

Last week’s proceedings marked the opening of what will be a lengthy process. For now, the hearings are adjourned and will reconvene with evidentiary hearings in May. We will continue to monitor this case.

— Lyndsey Wajert

Quick Hits

Last week, Google announced that it would implement new restrictions on apps downloaded to Android devices by reviewing whether they actually need the ability to track users’ locations in the background. Apple has implemented similar changes. The ability of apps to track an individual’s location has raised concerns among privacy advocates.

As Techdirt noted last week, the Kentucky Court of Appeals earlier this month held that law enforcement officials need a warrant before obtaining the real-time cell site location information of a suspect. This marks an extension of the holding in Carpenter v. U.S., in which the U.S. Supreme Court held that historic cell site location information is protected under the Fourth Amendment. The Reporters Committee filed a friend-of-the-court brief in Carpenter.

Zack Whittaker, a security editor at TechCrunch, tweeted last week that the tech news website received an email from a company asking TechCrunch to delete two articles about an alleged “stalkerware” app that claims it can “‘access all the information’ on a target device, including its real-time location, text messages, browser history, access to its photos, videos and app activities, and recordings of phone calls.”

The U.S. Court of Appeals for the Ninth Circuit ruled last week that YouTube is a private forum that is not subject to judicial scrutiny under the First Amendment. Media company PragerU sued the platform in 2017, alleging that the website deprioritized a small number of its videos in some YouTube searches in violation of the First Amendment, which only applies to government action. Following the U.S. District Court’s dismissal of the lawsuit, the three-judge appellate panel unanimously upheld the dismissal.

An Iowa legislator is seeking to import Europe’s “right to be forgotten,” which allows internet users to request that content about them be deleted from search aggregators, like Google, or the original content producers themselves. Such laws, while accepted in Europe and other countries, would likely run up against the broad First Amendment protections for the publication of true, newsworthy information in the U.S. The Reporters Committee made similar arguments in a friend-of-the-court brief asking the highest court in the EU not to apply the “right to be forgotten” under European law worldwide.

Lawmakers in the House and Senate have introduced bills to reform the Foreign Intelligence Surveillance Act. The House bill, among other changes, would end the call detail records program that permitted the collection of vast quantities of call metadata. The timing of the bills coincides with the release of the government’s Privacy and Civil Liberties Oversight Board’s report last week, which found that the CDR program provided only two unique investigatory leads between 2015 and 2019, and two commissioners noted that the “large-scale CDR program surely sweeps in the CDRs of protestors, journalists, political activists, whistleblowers, and ordinary people.”

There have been two developments since TPFP’s Gabe Rottman published a special analysis last week about how the New York Police Department recently issued — and then withdrew — an unusual subpoena to a journalist for social media records in the course of investigating a department leak. First, Mayor Bill de Blasio called the decision to issue the subpoena a “mistake,” going on to emphasize that “[f]reedom of the press really matters.” Second, the NYPD reportedly issued a stricter social media policy to counter future leaks.

The Supreme Court on Tuesday handed down a decision in Hernandez v. Mesa, in which the Court further narrowed the reach of a doctrine that allows individuals to sue federal officials who violate constitutional rights. Look out for a TPFP analysis on how the decision could raise special concerns for First Amendment retaliation cases.

Vox put out a helpful explainer on what kinds of information law enforcement can get from your phone. In one disturbing, albeit important note, they point out that you lose your privacy rights when you die. So get those digital affairs in order!

Gif of the Week: Another week when the quick hits (and the “Friends” reunion announcement) may inspire you to do this with your phone.

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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.