With Judge Merrick Garland’s confirmation as attorney general this past Wednesday, incoming leadership at the Justice Department will confront a number of tricky cases and issues inherited from the Trump administration implicating technology and media law. Reporters Committee Executive Director Bruce Brown and TPFP Director Gabe Rottman published a comprehensive survey of these matters in Lawfare last week.
The first set of cases deals with the Trump administration’s bans of Chinese-owned social media apps WeChat and TikTok. The Biden Justice Department has sought to stay proceedings in these cases, potentially indicating a rethinking of the underlying executive orders. The cases challenge the Trump administration’s attempts to shutter the apps through emergency international economic powers on the government’s theory that “business-to-business” transactions can be prohibited without First Amendment scrutiny. The Justice Department’s position would logically extend to use of emergency economic powers to prevent a newspaper from purchasing basic business supplies, and, in so doing, interfere with its publication — so a possible rethinking of this litigation position would be a welcome development for the press.
The First Amendment challenge to then-President Trump’s blocking of Twitter followers is also in a state of limbo, thanks to a debate about what renders a case moot, or unhearable, by a court. This challenge is based on the theory that the former president used his Twitter account for official business, thus creating a “public forum” from which he, as a government official, can’t exclude anyone because of their viewpoints. The outgoing Trump administration asked the Supreme Court to moot the case and void the ruling by the U.S. Court of Appeals for the Second Circuit, which validated this First Amendment theory. The Knight First Amendment Institute at Columbia University, which brought the suit, agreed that the case is moot but asked that the Second Circuit’s decision stand.
The Biden administration also may push for changes to Section 230 of the Communications Decency Act. In January 2020, then-presidential-candidate Biden stated that Section 230 should be “revoked, immediately.” Section 230 shields online platforms from liability for content posted or hosted by third parties. The law has consequences for news outlets, which may host comment sections or citizen-journalism sections. Regardless of whether the Biden administration actually takes up this “revoke” position, momentum for Section 230 reform continues to grow and the Justice Department is likely to continue some work on the topic.
The Justice Department will also inherit long-standing policy debates about Fourth Amendment rights, including a push for law enforcement access to encrypted data pursuant to a warrant or other legal process. Both the Obama and Trump administrations supported these “backdoors,” and the Biden Justice Department will likely take a similar stance. Indeed, in testimony before the Senate Judiciary Committee earlier this month, FBI Director Christopher Wray explicitly called for “lawful access” to encrypted communications.
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 Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.