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This Week in Technology + Press Freedom: May 17, 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.

Senate votes on amendments to FISA reform bill

Last Wednesday, the Senate passed an amendment to the Foreign Intelligence Surveillance Act that would add important protections for the news media.

The amendment, sponsored by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.), would specifically expand the use of amicus curiae — court-appointed experts who represent the interests of individual privacy and civil liberties — in the Foreign Intelligence Surveillance Court. While current law requires the appointment of an amicus curiae only when the court is presented with “a novel or significant interpretation of the law,” the amendment would expand mandatory appointment to other scenarios, including the rare case that “presents or involves” an “investigative matter involving the activities of … the domestic news media.” (The court could decline to appoint an amicus if it issues a finding that such an appointment would not be appropriate.)

Before the Senate vote, the Reporters Committee sent a letter to the Senate in support of the Lee-Leahy amendment. The amendment passed with broad bipartisan support, 77 to 19. It will now be added to the broader intelligence bill — the USA FREEDOM Reauthorization Act — and introduced for a vote in the House of Representatives.

Another amendment, which the Reporters Committee also supported, failed by just one vote. Sponsored by Sens. Steve Daines (R-Mont.) and Ron Wyden (D-Ore.), it would have prohibited applications under the FISA “business records” provision that seek “internet website browsing information or internet search history information.”

Echoing the argument it made in United States v. Carpenter — the Supreme Court case that imposed a warrant requirement for more than a week of cell site location information — the Reporters Committee explained in its letter that web browsing information can likewise expose “sources and journalistic methods [and] can put sources’ jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.”

— Jordan Murov-Goodman

Quick Hits

The Reporters Committee, represented by the First Amendment Amicus Brief Clinic at the UCLA School of Law, recently filed a friend-of-the-court brief in a case involving a public records request by Georgetown law school’s Center on Privacy & Technology to the New York Police Department for records regarding the department’s use of facial recognition technology. The NYPD released some records but later said that certain records were mistakenly disclosed. Not only did the trial court order CPT to return some of the inadvertently disclosed records, it also prohibited the think tank from “referring to” or “referencing” the documents, which the appellate division affirmed. The Reporters Committee’s brief argues that CPT should be granted leave to appeal to the New York Court of Appeals because the order is an unconstitutional prior restraint.

TechCrunch reported last week that the workplace messenger app Slack has confirmed that it has started to remove metadata, including location information, from photos shared on the platform. The move could provide additional security for users such as journalists who might have to rely on the messaging service to correspond with sensitive sources.

Social media platforms continue to grapple with how to address the rapid spread of misinformation about COVID-19, with Facebook and Instagram removing a conspiracy-focused video called “Plandemic” from their platforms and rejecting ads that include it. YouTube has similarly removed uploads of the video for “violating Community Guidelines.” Twitter also announced last Monday that it will label and potentially remove misleading, disputed, or unverified tweets about COVID-19.

The Department of Homeland Security recently announced that Chinese journalists working for non-American news outlets and seeking to report from the U.S. would be limited to 90-day work visas, with the possibility of extensions. Previously, DHS granted open-ended, single-entry stays to such journalists. Some have noted the change is likely a result of mounting tension between the Trump administration and China, particularly around COVID-19, that has resulted in retaliation by both countries against journalists from the other country.

Surveillance software company NSO Group’s North American branch attempted to sell its phone-hacking technology to at least one U.S. police department, Vice’s Motherboard reported. An anonymous former employee explained to Motherboard that this technology was the same as that used by foreign governments, including Saudi Arabia in surveilling associates of murdered Washington Post Global Opinions contributing columnist Jamal Khashoggi.

Responding to public scrutiny and several lawsuits, facial recognition technology firm Clearview AI stated that it will terminate its contracts with private companies, instead selling its software solely to government and law enforcement customers. Lawyers representing plaintiffs in at least one lawsuit, as well as privacy advocates, say the company’s move does not go far enough, leaving in place a system that exposes nearly everyone “to continued privacy harms.”

? Smart reads ?

The Washington Post Magazine published an adapted excerpt from reporter Barton Gellman’s upcoming book about how he met National Security Agency whistleblower Edward Snowden and broke the news about the U.S. surveillance program.

The MIT Technology Review has developed a Covid Tracing Tracker database to increase public awareness of the privacy practices of different apps purporting to assist in contact tracing.

Gif of the Week: This week’s newsletter is just the surveillance-heavy newsletter.

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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.