This Week in Technology + Press Freedom: Jan. 19, 2020 – Reporters Committee for Freedom of the Press

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

Before we get to this weeks Top Story, we wanted to flag that the Reporters Committee and 57 media organizations sent aletterto Senate leadership, the Senate Sergeant at Arms, and the U.S. Capitol Police to opposerestrictionsfor journalists covering the upcoming Senate impeachment trial of President Donald J. Trump. Absent an articulable security rationale, [the Senate has] an obligation to preserve and promote the publics right to know, the letter said. The media coalition echoed concerns raised by the Senate Standing Committee of Correspondents in its ownletterdecrying the plans.Please share!

The Reporters Committee filed afriend-of-the-court brieflast week in the ongoing case concerning journalist Brian Karems White House hard pass, the credentials that facilitate reporters access to White House grounds.

Last August, the White House suddenly notified Karem of a 30-day suspension of his hard pass, citing the Playboy correspondents alleged failure to abide by basic norms of decorum and order, more than three weeks after Karem had analtercationwith former Trump aide Sebastian Gorka in the Rose Garden.

Karem immediately sought a preliminary injunction in federal court in the District of Columbia to get his credentials restored. The Reporters Committee filed afriend-of-the-court briefin support of Karem, emphasizing the well-established legal rule that the White House can deny hard passes only pursuant to basic due process that is, notice of the conduct that will result in denial of security credentials and an opportunity to challenge the denial. That rule set down in 1977 by the U.S. Court of Appeals for the District of Columbia Circuit inSherrill v. Knight requires the White House to articulate and publish an explicit and meaningful standard governing denial of press passes before doing so. The brief pointed out that the White House had not done so here and argued that whatever explicit standard is adopted must offer precision and guidance.

The district courtgrantedthe preliminary injunction, echoing many of the arguments presented by the Reporters Committee. The government appealed.

In its amicus brief on appeal, the Reporters Committee, joined by 44 press groups, again emphasized the importance of theSherrilldue process rule, and noted the medias critical role in holding the executive branch accountable, particularly in light of its ability to maintain greater secrecy over its actions than other branches. The brief also explained the importance of clear rules in this area, giving color to the district courts suggestion that a White House standard of decorum and order is too vague for journalists to be on fair notice about how to conform their behavior.

We jumped into the Karem case for many of the same reasonsthat theReporters Committee has engaged in issues involvingFirst Amendment retaliation against the press under the guise of executive branch regulatory actions.

In 2018, for instance, the Reporters Committee filed afriend-of-the-court briefin another case in the D.C. Circuit where the government appealed its unsuccessful challenge to the merger of AT&T and Time Warner (which owns CNN). The brief noted the presidents public and well-documented hostility toward CNN, and the importance of permitting limited discovery to determine the viability of a selective enforcement defense in cases where public criticism of an outlet suggests intent to retaliate against it.

The brief also highlighted examples of attempted press intimidation under administrations of both parties, including President Lyndon Johnsons demand for a literal letter of fealty from the publisher of the Houston Chronicle in exchange for authorizing a merger involving a bank owned by the publisher and President Richard Nixon using the threat of an antitrust lawsuit against the television networks in an attempt to sway coverage.

Ultimately, the issues at stake inKarem, the AT&T case, and the Johnson/Nixon episodes are similar. If the First Amendment means anything, its that the government cant use the levers of power to retaliate for coverage perceived as negative, be it a hard pass that permits a White House reporter to do his or her job, or economic regulations like antitrust that can hit a news organization where it may hurt most: the pocketbook.

Jordan Murov-Goodman

On Thursday, the New York Timesreportedthat federal prosecutors are investigating whether former FBI Director James Comey illegally provided classified information to reporters, marking the second time the Justice Department has focused on Comey for allegedly leaking information to the press. The first ended in a decision not to prosecute. Prosecutors in the U.S. attorneys office in the District of Columbia are now reportedly investigating whether the former director provided classified details about a Russian intelligence document to reporters for the Times and the Washington Post. Trump has previouslycalledComey a leaker on social media.

Last week, WikiLeaks founder Julian Assange brieflyappearedin person in a U.K. court proceeding in which his lawyers argued they were not being given enough time to meet with their client. Assanges five-day extradition hearing is scheduled for late February. He has beenchargedby U.S. officials for violating the Computer Fraud and Abuse Act and the Espionage Act.

Natalie Mayflower Sours Edwards, a former U.S. Treasury Department staffer accused of leaking confidential information to a reporter,pled guiltyin federal court last week to a count of conspiracy. Edwards waschargedwith makingunauthorized disclosures and with conspiracy to make unauthorized disclosuresof Suspicious Activity Reports, which document certain financial transactions that could indicate wrongdoing.

In the latest development in the debate over government encryption backdoors, Attorney General William Barr last week called onAppleto find a way to permit direct access to the encrypted phones of a Saudi aviation student who authorities saycarried out a terror attackat a Florida Navy base in December. The companyhas refusedto develop backdoors for law enforcement, arguing that there is no way to ensure that a built-in vulnerability for law enforcement wont be exploitable by bad actors. Some havenotedthat third-party vendors have developed cracks for iPhone encryption, which would not involve Apple being forced to build in a vulnerability for law enforcement access.

Lawmakers in the state of Washington have unveiled adata privacy billakin to the onerecently passedin California. This continues the trend of statestaking the leadin regulating the collection and use of consumer data.

Several members of Congress recentlyurgedthe Federal Communications Commission to require wireless carriers to do more to protect consumers from SIM swapping, a scheme in which bad actors dupe wireless carriers into transferring to their SIM cards the cell phone accounts of unsuspecting victims. Journalists should be especially concerned about being targets of SIM swapping, and can takestepssuch as enabling two-factor authentication to protect their accounts and data.

Claiming that a former government employee has stepped forward to divulge more details of the operation against her, former CBS news anchor Sharyl Attkisson isrenewing her attemptsto sue the government over alleged warrantless surveillance of her phones and computers nearly a decade ago. Her complaint claims that former Deputy Attorney General Rod Rosenstein directed a team of four agents toconduct home surveillanceon her and other U.S. citizens during his time as the United States Attorney for the District of Maryland. This operation, she says, occurred while she reported on various controversies during the Obama administration, such as the Benghazi embassy attack.

Thirteen press secretaries spanning the administrations of Presidents George H.W. and George W. Bush, Bill Clinton, and Barack Obamacalledon the Trump administration to resume regularly scheduled press briefings. They cited multiple benefits of the briefings, despite the ability of officials to communicate through social media, including keeping policy objectives on a timely schedule and avoiding the proliferation of misinformation by allowing the media to vet claims. The Trump administration has held fewer press conferences than past administrations, with current White House press secretary Stephanie Grishamrefusingto hold any since taking the position last July. Indeed, the last White House press briefing wasover 300 days ago, and counting.

The U.S. Court of Appeals for the Third Circuit recentlyruledin a First Amendment challenge against nondisclosure orders accompanying demands for data under the Stored Communications Act that such restraints on speech survive strict scrutiny. The court held that the governments interest in maintaining grand jury secrecy was compelling, that the use of nondisclosure orders was narrowly tailored, and that the nondisclosure orders were the least restrictive means to maintain grand jury secrecy thus meeting all three prongs of the constitutional test applied to such regulations. This case raises concerns similar to those of a recent case in which attorneys for the Reporters Committee filed anamicus briefin support of Microsoft.

Gif of the Week:Friendly reminder to enable two-factor paw-thentication on your devices.

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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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This Week in Technology + Press Freedom: Jan. 19, 2020 - Reporters Committee for Freedom of the Press