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This Week in Technology + Press Freedom: May 3, 2020

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  1. Policy

For up-to-date resources related to the COVID-19 pandemic, please see our dedicated landing page, which features recommendations for journalists, legislators, and courts to ensure that the press and the public’s right of access to information is protected. The Reporters Committee most recently published a guide discussing how journalists can navigate the Health Insurance Portability and Accountability Act, or HIPAA, while reporting on the pandemic.

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.

Leak inquiry possibly part of Durham probe of Russia investigation

Last week, The New York Times reported that investigators for the Justice Department are conducting an inquiry into past leaks to the news media that former Trump administration officials “blame for prompting the chaos that dominated the early days of [Trump’s] presidency.”

John H. Durham, the U.S. attorney in Connecticut, is investigating the origins of an FBI investigation into Russian links to the 2016 Trump campaign. As part of that inquiry, Durham’s investigators have also reportedly asked witnesses about news articles published in early 2017, including a Washington Post column revealing that Trump’s first national security adviser, General Michael Flynn, spoke to the Russian ambassador before Trump’s inauguration.

It is unclear whether Durham took over an existing leak investigation, or whether Durham is investigating the leak or leaks as a criminal matter separate from the focus of the inquiry.

The Trump administration has continued the Obama administration’s practice of prosecuting the unauthorized disclosure of national defense information to the press as akin to spying under the Espionage Act.

In response to a FOIA request filed by Steven Aftergood at the Federation of American Scientists, the Justice Department also released statistics last year showing that leak referrals to the department (technically called “crimes reports”) significantly increased during the first two years of the Trump administration, from 18 in 2015 and 37 in 2016, to 120 in 2017 and 88 in 2018. Those numbers are also significantly higher than the average referrals for the years 2005 to 2015 (i.e., about 39), which shows a dramatically increased number of crimes reports even in comparison to the Bush administration’s second term.

— Lyndsey Wajert

Quick Hits

Apple and Google recently announced measures to address privacy concerns with a planned COVID-19 contact-tracing system. The companies said that they would disable the service after the outbreak had been sufficiently contained. A recent Washington Post-University of Maryland poll found, however, that a considerable number of Americans may not use the app, given lack of access to the necessary technology or privacy concerns.

Surveillance technology companies are ramping up efforts to sell their tools to governments looking to combat the pandemic through location tracking and contact tracing, Reuters reports. These efforts concern many privacy advocates, in part because some of these companies have been accused of facilitating the illegal surveillance of journalists.

Some privacy advocates and European leaders are raising concerns about a perceived lack of enforcement of the General Data Protection Regulation, Europe’s data privacy law, and have said that the COVID-19 outbreak is exacerbating the problem. The European Commission has delayed until June a release of a full review of the GDPR due to the virus.

A British judge decided last week that hearings in Julian Assange’s U.S. extradition case would be postponed due to the coronavirus lockdown, which would foreclose in-person arguments. On a hearing conference call last Monday, journalists struggled to hear the arguments by Assange’s lawyer.

Responding to concerns about COVID-19 misinformation proliferating on its platform, YouTube announced it will add a fact-checking feature for certain search queries. Videos will not be taken down, but instead users will see a series of fact-checked articles atop their search results in an effort to provide “fresh context.”

The Washington Post and American Civil Liberties Union asked the U.S. Court of Appeals for the Ninth Circuit to unseal a court opinion denying the government’s attempts to compel Facebook to break the encryption on its Messenger app in the course of a gang investigation. The California district court judge who originally sealed the opinion maintained that the facts of the investigation were too “intertwined” with the legal reasoning to permit disclosure. (The Reporters Committee filed an amicus brief in the case last year.)

? Smart read ?

Former Reporters Committee fellow Jennifer Henrichsen authored a report published last week by the Tow Center for Digital Journalism exploring how an increase in online harassment and threats against reporters, hacks of major corporations and government entities, and leak investigations may have impacted how journalists view information security.

Gif of the Week: All this talk of data reminds us of, well, Data. We hope you and your pets are staying entertained!

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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.

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