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This Week in Technology + Press Freedom: March 8, 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.

Democratic legislators introduce Espionage Act reform bill

Last week, TPFP Director Gabe Rottman published a special analysis on the Espionage Act reform bill recently introduced by Sen. Ron Wyden (D-Or.) and Rep. Ro Khanna (D-Cal.). The legislation, only the second proposal to reform the law in more than a century, is welcome given the past decade’s concerning uptick in prosecutions of journalistic sources using this statute — and the growing fear that it could be used directly against the press.

The bill only includes modest changes to the law for journalistic sources, and could go further to better prevent chill on the newsgathering process. Nonetheless, the legislation would make two critical changes. First, it would limit who could face liability for the disclosure of government secrets to individuals who were authorized to access classified material and who had signed a non-disclosure agreement with the government.

Second, the bill would change the standards for charging individuals who are in contact with a “leaker” but who have never signed an agreement to protect government secrets. Under current law, these individuals could be charged under theories of conspiracy, accessory, or other similar “incomplete” crimes, just as if they were a person sworn to secrecy.

For journalists who receive and report on classified information, the bill would require the government to prove that the defendant “directly and materially” aided the crime and acted with “specific intent” to “harm the national security of the United States” or help a foreign power to the detriment of the U.S.

In short, the bill would reduce the potential liability for journalists and other recipients of leaked information, though, as other press advocates have pointed out, additional reform is needed to ensure that the disclosure of newsworthy information in the public interest is fully protected.

Read the full special analysis.

Quick Hits

Last week, the Reporters Committee signed on to comments from a media coalition to the Federal Aviation Administration urging the FAA to amend proposed regulations that would require journalists to ensure that newsgathering drones be outfitted to identify its owner and operator. The comments raised concerns about how the regulations could allow for tracking journalists in real time, potentially compromising journalistic independence, access, and safety.

Facial recognition software firm Clearview AI was in the news yet again last week. First, an anonymous source provided Buzzfeed a list of the company’s customers and free trial users, revealing that there are credentialed users at a range of organizations, including federal agencies like Immigration and Customs Enforcement, private retailers like Walmart, and foreign entities like the United Arab Emirates’ sovereign wealth fund. Alleging a violation of its policies, Apple also suspended the company from its developer app program.  Finally, a Vice reporter invoked California’s data privacy law to find out what pictures Clearview had of her, and found they came from a range of obscure websites going back 15 years.

The Federal Communications Commission recently informed certain wireless carriers that it plans to fine them for allegedly sharing their customers’ real-time location data in violation of federal law. Location tracking continues to be a concern for the protection of reporter-source confidentiality, as granular data can track reporter-source interactions even when they take other steps to keep contacts confidential.

Facebook filed a civil lawsuit under the Computer Fraud and Abuse Act against a company that allegedly paid app developers to allow it to harvest the data of customers who use the “login with Facebook” feature. Facebook alleges that the company, OneAudience, included an improper tracking feature in a software package for application developers.

Both Democrats and Republicans are split on reforms to the Foreign Intelligence Surveillance Act. Many progressive Democrats, joined by several conservative Republicans, insist that a bill to reauthorize expiring provisions of the USA Patriot Act include heightened civil liberties protections. For its part, the White House has indicated that it would support certain reforms in light of the inspector general report criticizing the FISA investigation of former Trump aide Carter Page. Attorney General William Barr appeared to break with the White House last week, telling Republican members of Congress he would support a “clean” reauthorization without any changes.

Congress introduced the EARN IT Act last week, which, if passed, would tie immunity under Section 230 of the Communications Decency Act to companies agreeing to break encryption to permit government access (often called “backdoors”). Privacy advocates have raised concerns about the bill.

Jury deliberations began last week in the trial of Joshua Schulte, a former CIA employee accused of leaking “Vault 7,” a set of CIA hacking tools published by WikiLeaks.

Brazilian prosecutors appealed a judge’s ruling last month dismissing criminal charges against The Intercept’s Glenn Greenwald. In January, Brazilian prosecutors charged Greenwald with cybercrimes.

As a recent Reporters Committee update noted, the city of San Francisco is expected to settle with freelance journalist Bryan Carmody over the police raid of his home and office last spring. Law enforcement sought the identity of Carmody’s confidential source, who allegedly provided information about the death of San Francisco’s elected public defender. The Reporters Committee filed a friend-of-the-court letter in the case and separately moved to unseal five search warrants, some of which also targeted Carmody’s phone records. Last fall, the Reporters Committee also filed a Freedom of Information Act lawsuit seeking records that may shed light on the FBI’s involvement in the raid.

Gif of the Week: When “springing forward” this weekend feels like a type of time travel.

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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.