This is the season for look-aheads: What kind of policy and personnel choices should we expect to see from the executive branch following Joe Biden’s inauguration in January? Here at the Reporters Committee, we’re beginning to take stock of what a new administration might mean for technology, press rights and the First Amendment. What follows is a brief, inexhaustive list of what the Technology and Press Freedom Project will be watching.
For starters, as Josh Gerstein recently reported for Politico, a Biden Justice Department will need to decide whether to go forward with a number of controversial prosecutions that implicate First Amendment rights. Top of mind for many in the media will be the ongoing effort to extradite WikiLeaks founder Julian Assange. The Obama administration had previously concluded that charging Assange with espionage for his role in publishing leaked government documents would chill reporting (and violate the Constitution). The Trump administration, though, has charged ahead, and a decision in the extradition proceeding is expected in early January. Similarly, the new administration will confront the question whether to pursue a number of charges arising out of the summer’s protests against systemic racism and police brutality.
Then there’s the Department of Homeland Security. The agency is working to finalize a number of rules that raise First Amendment and press-rights concerns — from biometric surveillance at the border to a crackdown on the availability of visas for representatives of foreign media outlets. (In October, the Reporters Committee and a media coalition submitted comments opposing the visa rule.) If the Trump administration fails to publish those rules before Biden takes office, his appointees could withdraw them without much in the way of fuss or formality; if DHS manages to finalize them, on the other hand, withdrawal will require a new, laborious round of notice and comment. DHS recently told Voice of America that it plans to have the visa rule in effect before the end of the year.
Then, of course, there’s the Trump administration’s internet agenda, much of which has been implemented by executive order. Several courts have now concluded that the president’s orders banning WeChat and TikTok exceeded his powers (whether because they violate the Constitution or the statutes setting out his delegated sanctions authority). Will President Biden withdraw them?
The change of administration will also bring a change in leadership at the Federal Communications Commission, which could portend an early end to the rulemaking the agency launched for Section 230 of the Communications Decency Act. Finally, the U.S. Supreme Court has yet to take action on the government’s petition in Knight First Amendment Institute v. Trump, where the president is asking the Court to reverse a lower court’s conclusion that blocking his critics on Twitter violates the First Amendment.
This is, of course, a partial and preliminary list. We’ll be keeping an eye out for further developments.
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 Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.