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This Week in Technology + Press Freedom: May 10, 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.

New York Times wins FOIA lawsuit seeking records concerning FCC public comments on ‘net neutrality’

A federal judge recently ruled in favor of The New York Times in a case involving the media outlet’s quest to obtain records related to “net neutrality” rulemaking at the Federal Communications Commission.

In June 2017, the Times submitted a Freedom of Information Act request to the FCC seeking server logs for public comments related to a proposed rule to repeal an Obama administration order requiring internet service providers to treat data on their networks equally.

Following the rulemaking, research indicated that some of the comments on the proposed rule may have been fraudulently submitted by automated “bots” or fake email accounts. This would be different from a common practice in which advocacy groups urge their members to submit comments on proposed rules and sometimes provide suggested language. The Times submitted its FOIA request in connection with its investigation of such reports of fraudulent comments, including the extent of Russia’s involvement.

The FCC denied the newspaper’s FOIA request, citing FOIA Exemptions 6 (records involving personal privacy) and 7(E) (records that would disclose techniques and procedures for law enforcement investigations or prosecutions), which prompted the Times to file a lawsuit.

In the course of litigation, the Times narrowed the scope of its request to the IP addresses associated with the comments on the docket, “User-Agent headers” (which contain information about the device a commenter used), as well as related timestamps. Both parties sought summary judgment, with the FCC relying on FOIA Exemption 6 only.

Denying the FCC’s motion for summary judgment and granting the newspaper’s motion, Judge Lorna G. Schofield conducted a balancing test to determine the applicability of Exemption 6 to the requested data. The court found that the FCC failed to sufficiently assert that the privacy interests at stake were substantial, noting that the comments were made on a public website and commenters provided other identifying information (such as names and addresses). The court also discussed how the public has a great interest in public disclosure of such information, given that “[t]he integrity of the notice-and-comment process is directly tied to the legitimacy of an agency’s rulemaking.”

— Lyndsey Wajert

Quick Hits

Apple and Google recently released additional resources for developers using the companies’ “application programming interface,” or API, to help public health agencies perform COVID-19 contact tracing. The companies also released new policies that developers must adhere to in order to get their apps approved for use, including requiring that the technology only be used for the purpose of responding to COVID-19, among other notable restrictions.

Facebook has begun the rollout of an Oversight Board that would review some of its content moderation decisions, promising to implement the board’s decisions unless doing so would “violate the law.” The panel of experts comprising the board — from backgrounds as varied as law, journalism, and human rights advocacy — is meant to provide a degree of independence to the decisions and ensure they conform with freedom of expression.

Citing a lack of transparency and potential future financial difficulties, the Internet Corporation of Assigned Names and Numbers, or ICANN, declined to approve the sale of the “.org” domain to a private equity group. (ICANN is responsible for the internet’s domain name system.) ICANN’s decision follows backlash after the announcement of the proposed sale, including a letter from California’s attorney general raising the same concerns ICANN noted: namely, that the sale could cause financial issues for the domain and, in turn, disruption of the websites hosted.

The Supreme Court held its first oral arguments via teleconference last week, marking the first time in the Court’s history that the public could remotely listen live to the proceedings. Despite frequent calls by groups such as the Reporters Committee for greater transparency in the nation’s highest court, the Court has historically been reticent to allow live audio coverage of arguments. But the COVID-19 outbreak led to the change in policy.

The Wall Street Journal reported last week that an army intelligence unit in Colombia used U.S. surveillance equipment intended for monitoring drug traffickers to spy on journalists and others. The U.S. had supplied the listening devices and other equipment in an effort to weaken armed gangs that smuggled cocaine into the U.S., but the unit compiled dossiers on more than 100 people, including journalists for Time magazine, The New York Times and the Journal.

? Smart read ?

Runa Sandvik, who works on digital security for journalists, recently published a piece with TechCrunch in which she describes how the EARN IT Act could make it significantly more difficult for journalists to protect their confidential sources.

Gif of the Week: We like to get technical around here, so we’re honoring last week’s celebrations of Star Wars Day.

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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.