In response to the COVID-19 pandemic, the Reporters Committee published a series of resources last week addressing limits to court access and open records law, as well as the effect of “shelter-in-place” orders and other emergency measures on newsgathering during the public health crisis. Reporters Committee attorneys will update these resources regularly.
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.
How a House bill would amend the Foreign Intelligence Surveillance Act
The U.S. Senate voted to extend for the second time provisions in the Foreign Intelligence Surveillance Act that expired on March 15. The Senate voted to extend the provisions without change for 77 days, rather than taking up a bill that passed the House of Representatives last week, which included limited reforms. Senate Majority Leader Mitch McConnell (R-Ky.) agreed to permit debate on the House bill at a later date.
The House bill would reauthorize the expiring provisions, but would end the authority for the call detail records program, under which the government can collect large amounts of electronic metadata without individualized suspicion of wrongdoing. The National Security Agency discontinued the program last year after finding compliance breaches.
One little-discussed addition in the House bill is the creation of a new “leak” offense. The bill would add a paragraph to a statute governing improper surveillance activities that would expressly criminalize the intentional disclosure of a FISA application, or classified information contained in an application, by government employees or contractors “to any person not entitled to receive classified information.”
In a nod to a recent Supreme Court ruling, the bill would require a FISA warrant for cell-site location and GPS information, as well as other types of information in which a person has a “reasonable expectation of privacy” and “a warrant would normally be required for law enforcement purposes.” Some civil liberties groups, however, believe the House bill does not go far enough and have called for additional privacy protections.
— Jordan Murov-Goodman
Technology companies and the government may be exploring whether location data from the companies could be used to fight COVID-19. Public health experts are reportedly interested in whether anonymized, aggregated data could be helpful in modeling the pandemic’s spread. Efforts in other countries to use non-anonymized location data for “contact tracing” have sparked debate. In Israel, for instance, Prime Minister Benjamin Netanyahu authorized the emergency use of a previously unknown cellphone metadata collection program to trace the movements of individuals who may have COVID-19 or been in contact with those infected.
A report by the Cause of Action Institute and Americans for Prosperity Foundation released last week discusses how the use of new messaging technologies in the workplace is impacting the way the federal government preserves communications for public records.
A document obtained through a public records request shows that the U.S. Cyber Command was concerned that the WikiLeaks publication of diplomatic cables in 2010 alerted adversaries — in this instance, China — that the U.S. had unearthed their hacking efforts, leading those adversaries to change their tactics to escape detection.
Motherboard, the tech publication of VICE, conducted an in-depth analysis on federal search warrants for data from iPhones and recently published a database of cases. The report is useful for understanding law enforcement efforts to access encrypted devices.
Efforts by the Chinese government to censor news reports about COVID-19 are being met with resistance from many in the Chinese media, with journalists “publishing hard-hitting exposés describing government cover-ups and failures in the health care system,” and using social media to call for press freedom. China on Tuesday revoked the press credentials of journalists from many U.S. outlets, possibly in response to the “personnel cap” the U.S. put in place for four state-run Chinese media outlets earlier this month.
The Washington Privacy Act, a state data privacy bill similar to the California Consumer Privacy Act, recently failed to pass in the Washington state legislature. However, lawmakers did pass SB 6280, a law that addresses public and private facial recognition technology.
🤓 Smart reads 📖
This Just Security piece offers an interesting legal analysis on the administration’s decision to classify certain discussions about COVID-19.
The Dart Center for Journalism and Trauma at Columbia University’s Journalism School has published a resource for journalists covering the COVID-19 pandemic, featuring guidance on how to practice self-care while reporting. This may be especially helpful for those reporting from the centers of the outbreak.
Gif of the Week: Everyone adjusting to working from home.
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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.