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. Buckle up, we’re leading off with a big developing story…
The leak crackdown continues:
On Oct. 9, the Justice Department announced Espionage Act charges against Henry Kyle Frese, a Defense Intelligence Agency counter-terrorism analyst, for allegedly disclosing national defense information to two journalists. This is the eighth case against a journalistic source under the current administration and the 18th since 2009.
The Wall Street Journal reported that the two journalists were “identifiable” as a national security reporter at CNBC and a more senior national security reporter for NBC. The two co-bylined an article on July 1, 2019, that appears to be referenced in the wiretap affidavit for Frese’s phone, which the Justice Department says includes topics “similar” to an earlier article by the CNBC reporter (see paragraph 24). The article deals with Chinese military tests and buildup in the South China Sea. More detail on the indictment can be found here.
In addition to the eight cases pending under the Trump administration (Winner, Albury, Schulte, Wolfe, Edwards, Fry, Hale, and Frese), the Frese case also comes on the heels of the superseding indictment against WikiLeaks founder Julian Assange. The Assange indictment contains three charges under the Espionage Act based solely on the act of publishing classified information online — the first time the Justice Department has ever secured a grand jury indictment on that legal theory.
If one counts Assange and the case of James Hitselberger — a Navy contract linguist who sent classified information to a public archive — there have been 20 national security “leak” cases since 2009, versus a handful in the 230 years prior.
Frese is charged with two counts under the “insider” provision in the Espionage Act, 18 U.S.C. § 793(d) (covering individuals with lawful access to national defense information who communicate, deliver, or transmit such information to an unauthorized person). Each count is punishable by up to 10 years in prison. His case is pending in the United States District Court for the Eastern District of Virginia, the same court where former airman Daniel Hale is seeking to dismiss his indictment under the First Amendment.
A couple of things jump out in the Frese indictment and affidavit.
One, the FBI sought and a judge signed off on a wiretap, which picked up conversations between the defendant and one of the journalists. As far as we know, this is the first telephonic wiretap in an unauthorized disclosure case. (We know there have been email search warrants, but not real-time interception.) There are no indications of a wiretap in the materials the Reporters Committee has successfully moved to unseal in other leak cases.
Wiretaps are particularly sensitive law enforcement tools and require applicants to jump through a few more hoops than a garden variety search warrant. Among other things, wiretaps come with “minimization” requirements limiting what investigators can capture and how they can retain it, and investigators either need to try other tools before using one or need to explain why they can’t. As the case develops, the use of a wiretap may be something to watch (as well as the two electronic communications warrants to AT&T and Twitter).
There is no indication in the affidavit or indictment that either reporter’s records or communications were seized in the investigation.
The second thing to note are comments by Assistant Attorney General John Demers touting the leak crackdown. Demers said, “This is one of six unauthorized disclosure cases the department has charged in just over two years, and we will continue in our efforts to punish and deter this behavior.” (Those six cases are likely the Espionage Act cases and the Wolfe false statement plea and exclude the Edwards and Fry prosecutions, both under bank secrecy laws.)
Zachary Terwilliger, the U.S. attorney for the Eastern District of Virginia, expressly said these prosecutions are meant to send a message to “leakers,” which necessarily translates into an impediment to newsgathering as sources dry up.
This prosecution and Demers’ promise to continue to pursue these cases are directly relevant to Hale’s constitutional challenge to the Espionage Act, as the Reporters Committee argued in an amicus brief in the Hale case last month. In 1987, two Fourth Circuit judges signed on to an opinion affirming the constitutionality of the Espionage Act in part because they felt that the threat to newsgathering by a proliferation of leak cases was too speculative (because at that point there was only one, the one before them). The Frese case is just one more example that the fear of wide-ranging leak prosecutions is now quite concrete.
— Gabe Rottman
Journalist stopped at the border: Yet another journalist appears to have been targeted by customs officials on the basis of his profession. Defense One news editor Ben Watson recounted how, upon his return to Dulles International Airport in northern Virginia from a trip to Denmark, a customs officer refused to return Watson’s passport after learning Watson worked in the media. “You write propaganda, right?” the officer asked. Standing his ground, Watson replied “No.” The CBP officer asked him the same question three more times, at which point Watson finally relented to get his passport back. The incident follows on the heels of several similar accounts by members of the news media who experienced harassment at U.S. customs. As in some of the earlier incidents, CBP declared it “unacceptable” to target journalists. On Thursday, the U.S. Department of Homeland Security said DHS’s Office for Civil Rights and Civil Liberties will open an investigation into the incident.
Shallow solution for deepfakes: Late last week, California passed a law that would, within about two months of an election, prohibit a person from “distributing with actual malice materially deceptive audio or visual media” of a candidate for public office “with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.” AB 730 is intended to address “deepfakes,” which are increasingly realistic digitally-manipulated pieces of media that have raised concerns about privacy, election meddling, and national security. Notably, the law provides a satire/parody exception, as well as one for the news media. However, certain groups, including the ACLU and Electronic Frontier Foundation, have warned that the law may be ineffective and could sweep up protected First Amendment activity.
Too much tinkering, not enough tailoring at FBI: In a recently unsealed October 2018 ruling, a judge for the Foreign Intelligence Surveillance Court rebuked the FBI for overstepping its authority by conducting numerous broad queries of bulk intelligence data, including data collected under FISA Section 702 authority, that swept in U.S. person communications. Database searches are required to be reasonably designed to retrieve foreign-intelligence information or evidence of a crime; some of the actions the court found to have violated that requirement are:
- Conducting queries on over 70,000 “communications facilities ‘associated with’ persons with access to FBI facilities and systems”; and
- Conducting over 6,800 queries using social security numbers, and another search against “FISA-acquired” metadata involving the identifiers of 57,000 individuals.
A broad swath of privacy and due process advocates opposed reauthorization of Section 702 last year because of concerns about these types of searches, and the Reporters Committee has noted the concern that the FBI could conduct warrantless searches on information collected pursuant to Section 702 that would potentially ensnare a journalist’s communications.
Signal squashes a bug: Vice reported that a researcher at Google’s Project Zero published details about a bug in the popular message encryption app Signal. The bug, which affected Android devices, reportedly enabled a hacker to listen in on an unsuspecting target without the recipient accepting a phone call on the app. The company behind Signal said the issue was fixed as soon as it learned of the bug. Signal is generally considered to be a secure communications app, and is widely recommended for use by journalists (but remember to delete messages stored locally on your device).
European court says broad, worldwide takedown orders ok: Two weeks ago, the Court of Justice of the European Union, the EU’s highest court, ruled that the “right to be forgotten” in the EU does not permit search engine takedowns outside EU member countries. A week later, in a case involving Facebook, the same court allowed a takedown order to apply outside EU borders. What seems to be an about face actually turns on a key distinction. The earlier case, involving Google search links, involved EU law; the later case, involving Facebook posts that had been found defamatory under Austrian law, involved the individual member state’s law. There’s a lot more to unpack and we will supplement with additional analysis of the potential impact on U.S. press.
FBI involvement in raid raises grave concerns: The Reporters Committee requested the release of federal records that would explain why the FBI participated in the raid of San Francisco Journalist Bryan Carmody and whether the agency followed internal guidelines governing investigations that may affect members of the news media. RCFP attorneys filed a complaint in federal court after the FBI failed to respond to the request in a timely manner and subsequently claimed the records were exempt from public release. Read our analysis describing the events and latest legal proceedings.
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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.