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This Week in Technology + Press Freedom: May 31, 2020

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  1. Policy

On Sunday, the Reporters Committee addressed the recent attacks against journalists covering nationwide protests that erupted after a white Minneapolis police officer killed George Floyd, a Black man, on May 25.

“The numerous, targeted attacks that journalists reporting on protests across the country have faced from law enforcement over the last two nights are both reprehensible and clear violations of the First Amendment,” Reporters Committee Executive Director Bruce Brown said in a statement. “We strongly condemn these actions and will be contacting law enforcement in each jurisdiction to demand a full explanation and accountability for officers who knowingly targeted journalists.”

Journalists covering protests who have questions or are in need of legal assistance can contact the Reporters Committee’s hotline at 800-336-4243 or hotline@rcfp.org.

Here’s what else the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

German high court restricts foreign surveillance authorities

Germany’s high court has ruled that the statutes authorizing the country’s Federal Intelligence Service (known as the BND) to conduct telecommunications surveillance on foreigners violate the fundamental rights to privacy and press freedom enshrined in the German Constitution.

The suit was brought by a coalition of investigative reporters, news media organizations, and nonprofits, including Reporters Without Borders. They were concerned that the “mere possibility” of unrestricted, permanent mass surveillance could impede reporters’ ability to “build up trusting relationships with their sources.”

In a press release detailing its ruling, the Federal Constitutional Court explained that the surveillance measures at issue involve the BND’s ability to “access telecommunications transmission routes and networks to collect telecommunications data.” This data can then be searched with the use of identifiers (presumably names, email addresses, usernames and the like) or with content-related keywords.

Holding that Germany’s fundamental rights apply even to foreigners, the court ruled that there must be restrictions on the BND’s ability to collect data abroad, including setting forth the purposes of the surveillance with greater precision and clarity, in part to allow for meaningful independent oversight.

Most relevant to our readers, the court also held that the law must incorporate a higher threshold to justify a targeted communications search of individuals in professions that require confidentiality, such as lawyers or journalists. Similar to the National Security Agency’s minimization procedures for U.S. persons, if the BND realized that it had collected confidential communications after beginning to analyze data, it must conduct an “additional balancing” to determine whether the communications can be analyzed or used.

The powers called into question in the German case are similar to foreign intelligence authorities in the United States that permit warrantless surveillance of non-U.S. persons overseas. The Reporters Committee and many others have raised similar concerns about the effect of these foreign intelligence authorities on reporter-source confidentiality here.

— Jordan Murov-Goodman

Quick Hits

The Reporters Committee released a statement on Thursday raising serious concerns about President Donald Trump’s executive order seeking to limit legal protections for social media companies. The order came two days after Twitter, for the first time, added “fact-checking” warnings to two Trump tweets that the platform said could mislead voters with respect to mail-in ballots. Keep an eye out for a Reporters Committee special analysis examining Trump’s executive order.

House leadership pulled consideration of a bill to reform the Foreign Intelligence Surveillance Act after the White House indicated that the president intended to veto the bill if it passed.

A Washington state trial court dismissed a consumer protection lawsuit by the Washington League for Increased Transparency and Ethics, or WASHLITE, against Fox News for its early COVID-19 coverage. The court agreed with an amicus brief submitted by the Reporters Committee and the Internet & Television Association arguing that cable programmers should receive full First Amendment protection. The Erik Wemple Blog explained last weekend how the legal theories advanced by WASHLITE in the case could harm press rights for all.

In addition to paying out a substantial sum, the San Francisco Police Department will issue a bulletin to its officers reminding them of journalist protections in California’s shield law as part of a settlement with journalist Bryan Carmody. The settlement stems from a 2019 police raid of Carmody’s home in an effort to unearth a confidential source. The Reporters Committee supported Carmody in his efforts to have his phones, computers, journalist work product, and other newsgathering materials returned after the police seized them. Reporters Committee attorneys are also suing for records from the Justice Department and FBI related to the search and seizure.

Motherboard recently reported that several years ago, Israeli surveillance firm NSO Group appeared to be using web domain names meant to impersonate “Facebook’s security team and package tracking links from FedEx” to entice targets to click on the links that would install its hacking technology.

Following the visa changes for Chinese journalists working in the U.S., CNN reported that the State Department has begun asking U.S.-based employees of the Chinese state television network CGTN to fill out detailed questionnaires with personal information. The U.S. government has characterized CGTN as an extension of Beijing’s government, and now requires all employees, including American citizens, to comply with new rules.

A federal judge in Washington recently ruled that authorities need a warrant to power on a phone to take a picture of a lock screen, given that the act constitutes a “search” under the Fourth Amendment.

Following calls by some in China to impose rules limiting the collection of sensitive data, Chinese officials in the eastern city of Hangzhou reportedly plan to create a permanent version of a smartphone-based health-rating system developed to address COVID-19. The move has led to accusations that the city is expanding surveillance under the guise of promoting public health. Concerns about the sensitivity of data and the power of such developing technologies are shared globally, including in the United States.

Gif of the Week: A different kind of “tweeting.”


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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.