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This Week in Technology + Press Freedom: Oct. 4, 2019

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Expert analysis about how technology policy affects newsgathering and the First Amendment delivered to your inbox.

Welcome to the inaugural edition of a new weekly rundown of developments at the intersection of technology and press rights, prepared by staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press.

In this newsletter, we’ll drill down into one story that is flying below the radar, and then highlight the week’s important developments.

Here’s what we’re tracking this week.

The Justice Department is taking it to 11 in the Daniel Hale “targeted killing” leak case.

The Justice Department is prosecuting a former Air Force servicemember for allegedly leaking classified documents about the “targeted killing” drone program. The case against the airman, Daniel Hale, is the seventh leak prosecution under the Trump administration.

Defense lawyers filed a motion earlier in September asking the judge to dismiss the case because the Espionage Act, the World War I-era law that criminalizes the communication of government national defense secrets to unauthorized recipients, violates the First Amendment. The prosecution filed its response this week, staking out an aggressive position that the Espionage Act doesn’t implicate the First Amendment at all.

The Reporters Committee supported Hale’s constitutional challenge in a friend-of-the-court brief filed by the University of Virginia’s relaunched First Amendment Clinic. The amicus brief argued, in part, that the proliferation of media leak cases in just the last decade is directly relevant to whether the Espionage Act could be used arbitrarily or in cases where leaked information is newsworthy and in the public interest — both of which would chill newsgathering and violate the Constitution.

Here are a few highlights from Monday’s filing by the Justice Department:

First, the government’s brief cites Schenck and Abrams for the proposition that there is no First Amendment protection for the conduct covered by the Espionage Act (see page 26). The initiated will groan, and, for the uninitiated, Schenck is the notorious 1919 Supreme Court case where Justice Oliver Wendell Holmes wrote that you can’t “falsely yell fire in a crowded theater and cause a panic.” That phrase — the most overused “go to” in the First Amendment lexicon — was a metaphor for a piece of paper, an anti-war pamphlet, which Holmes said could be punished under the spying laws. It was not a good look, and Holmes went on to change his mind over summer break in 1919. He dissented in Abrams the following fall.

Second, the government at least suggests, if it doesn’t argue outright, that reporters could be prosecuted for receiving classified information (see, in particular, the Judge Ellis cite on page 25: “neither journalists nor anyone else has a First Amendment right to receive unauthorized disclosures of classified information. . . .”).

Third, the government pulls a slick move to try and sneak out of the most persuasive argument Hale raises: that the uptick in Espionage Act leak cases since the Morison case means the court should reconsider Morison (this is all on page 7). Notably, there was just one successful prosecution of a media leaker under the Espionage Act prior to 2009 — there have been 12 in the last ten years.

Prosecutors first give Hale’s argument the back of the hand: calling it a “supposed shift” from prosecuting spies to leakers. Then, they actually cite the cases from that “shift” (for instance, Sterling, Kim, and Kiriakou) to suggest that prosecuting leakers “isn’t as novel as the defense suggests” (see page 7). In other words, there was no shift to prosecuting leakers, but let’s cite the cases from the shift to prosecuting leakers to show that prosecuting leakers isn’t unusual — so, no shift. Confused? Us, too.

Finally, the prosecution expressly calls leakers as bad or worse than spies (page 7): “Moreover, the defense’s bifurcation of spies and leakers is dubious at best. . . . [Worldwide public] distribution may actually amplify the potential damage to the national security in that every country gains access to the compromised intelligence.”

Honest question — how does that cut for the press?

Even with just these opening salvos, the Hale case could end up being a case as big or bigger than Morison in the small world of leak law. And, unlike Morison, it comes in the context of this jump in the number of cases (and the severity of punishment), which has to be relevant to the First Amendment analysis.

— Gabe Rottman

Quick Hits

Win in Europe for online press rights. The European Union’s highest court confirms that take-down demands under the “right to be forgotten” do not apply outside member countries, agreeing with the Reporters Committee’s friend-of-the-court brief in the case, which was joined by an array of media groups. Special thanks to WilmerHale for representing amici there.

Ninth Circuit high fives hiQ. Hacking law nerds cool people around the country are still digesting the potentially groundbreaking decision by the United States Court of Appeals for the Ninth Circuit in LinkedIn v. hiQ, which held that using computer programs to “scrape” publicly available information online, something that data journalists do all the time, can’t violate the Computer Fraud and Abuse Act. Read more on how this affects newsgathering and the First Amendment.

More cloak for the cloak and dagger. Congress continues to work on conferencing the National Defense Authorization Act, which includes a provision that would expand the law that criminalizes the disclosure of the identities of spies and their handlers. The bottom line is that the revised law could apply to journalists, and could cover intelligence officers and agents who are safe in the United States and whose identities are newsworthy and relevant to stories in the public interest. Read our full rundown.

White House appeals loss in Rose Garden imbroglio. White House correspondent Brian Karem and former Trump aide Sebastian Gorka got into a shouting match in the Rose Garden in July. The White House didn’t have any rules in place about such conduct in this context (for reporters or guests), but they punished Karem by suspending his security credentials for 30 days. The Reporters Committee filed an amicus brief, and Karem won because of the lack of pre-existing rules. The White House is appealing. Read our analysis of the district court’s decision requiring the reinstatement of Karem’s credentials.

A right to be forgotten at the FBI. The Privacy Act, passed in part because of political spying by the FBI and intelligence agencies during the civil rights era and the Vietnam War, bars the collection of information about First Amendment activities unless pertinent to an ongoing investigation. The Ninth Circuit, in an under-the-radar opinion with potentially important ramifications for the press, ordered the FBI to expunge such records when no longer relevant to an ongoing case.

Gif of the Week

In honor of the CFAA win in hiQ, here’s a little bit of Wargames — the movie that led to the law.

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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.