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This Week in Technology + Press Freedom: May 24, 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.

Court ruling in defamation lawsuit threatens national security newsgathering

The Reporters Committee recently published a special analysis discussing a difficult legal case that could have serious repercussions for newsgathering, especially for national security reporters.

The case originated with a now-retracted story published by Fox News about Seth Rich, a data director at the Democratic National Committee who was murdered in 2016 in Washington, D.C.

The May 2017 story quoted a retired D.C. homicide detective and Fox News contributor who was investigating the case for the Rich family. The detective was quoted as saying that his inquiry showed “some degree of email exchange” between Rich and WikiLeaks. The reporter wrote that she had corroborated that detail through an unnamed “federal investigator.” However, many officials disputed the former detective’s statement, and, within 24 hours, the former detective said he had no evidence of an exchange. Fox retracted the article.

Seth Rich’s family sued Fox, a case that the U.S. Court of Appeals for the Second Circuit allowed to proceed last September. Meanwhile, Seth Rich’s older brother, Aaron Rich, filed a defamation lawsuit against three others for statements purporting to connect Aaron to the debunked WikiLeaks conspiracy theory. A discrete but serious First Amendment issue has come up in that case.

The plaintiff served a third-party subpoena to depose the Fox reporter who wrote the May 2017 story, seeking, among other things, testimony on the decision to retract the article.

Fox News and the reporter filed a motion for a protective order barring the deposition, arguing, in part, that the discussions concerning the retraction are part of the editorial process, which are protected by the First Amendment and New York’s newsgathering privilege. In April, a federal judge denied the motion, stating that discussions around the retraction of a story “do not involve ‘newsgathering.’”

As TPFP Director Gabe Rottman explains in his special analysis, the district court’s holding in this case is “deeply troubling and could, if widely adopted, lead to serious consequences” for all media outlets, not just the entities involved here. The court’s ruling is especially concerning for national security reporters. Indeed, such reporters may occasionally have to rely on incomplete information due to the secrecy surrounding their stories, and with such high stakes, outlets tend to be under even more pressure to expediently address inaccuracies with corrections or retractions.

“[C]onstitutional or statutory protections that allow news outlets to self-correct without fear that doing so will lead to legal liability or, in this case, scrutiny into the decision-making processes, are important for an independent press,” Rottman notes.

Read more of the special analysis here.

— Lyndsey Wajert

Quick Hits

The USA FREEDOM Reauthorization Act is back to the House after the Senate passed an amendment to the bill we detailed in last week’s newsletter. The House is expected to take up the bill on May 27, and will also reportedly vote on a second amendment that would bar the warrantless search of a target’s internet and web-browsing history, which failed in the Senate by just one vote.

A U.S. prosecutor told a federal judge last week that the Justice Department intends to retry ex-CIA employee Joshua Schulte after a jury in New York federal court deadlocked on espionage-related charges. The jury found Schulte, who is accused of leaking agency hacking tools to WikiLeaks in 2017, guilty of lying to the FBI and contempt of court.

According to emails obtained by the Tampa Bay Times, officials in Florida directed a top state Department of Health data manager to remove a column of data from public view that showed Floridians reported symptoms of COVID-19 before cases were officially announced. The following day, the data manager was removed from her role, but not before warning via a “COVID data users” listserv that her replacements could be less transparent with data about the disease.

The Reporters Committee joined The Internet and Television Association in filing a friend-of-the-court brief last week in Washington League for Increased Transparency and Ethics v. Fox News, a case in which the nonprofit group asserts that Fox violated state consumer protection laws during its early coverage of COVID-19. The brief discusses a discrete issue raised in the case that could have serious implications for all forms of content (including, by extension, blog posts online): Whether content providers enjoy First Amendment protection when they distribute their programming over a cable television system.

The FBI is reportedly investigating a computer programmer in Arkansas who discovered that he could access sensitive information on a state unemployment site by changing the web address, and, after trying to alert the state to the vulnerability, notified the press. As the Reporters Committee has repeatedly explained, accessing publicly available information online (which, based on the reporting, this was) is not “hacking,” and not a crime.

🤓 Smart read 📖

A smart read, or listen, for this week is an interview NPR conducted with Neil Johnson, a physics professor at The George Washington University, in which he discusses his study on the spread of scientific misinformation about COVID-19 on social media.

Gif of the Week: For Memorial 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.