This Week in Technology + Press Freedom: Nov. 17, 2019 – 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.

As we flaggedlast week, the Justice Departmentsent a letterto publishers of A Warning,a book set to be released Nov. 19 by an anonymous senior official in the Trump administration who is believed to be the same person who published an anonymous 2018op-edin the New York Times. Inthe letter, Joseph H. Hunt, assistant attorney general of the Justice Departments Civil Division, warns that the books publication may violate the officials legal obligations, including one or more nondisclosure agreementsthat the official may have signed if the author is indeed a current or former senior official in the Trump administration.

Hunt states that the nondisclosure agreements are routinely required with respect to information obtained in the course of ones official responsibilities or as a condition for access to classified information.The letter goes on to say that the agreements typically require that any written work potentially containing protected information be submitted for pre-publication review.

Hunt appears to be referring to both pre-publication reviewrequirements in agreements officials sign to access classified information and nondisclosure agreements that the administration hasreportedly requiredofficials to sign that are not limited to classified information. The Knight First Amendment Institute at Columbia Universityhas challengedthe former types of agreements,providing a helpful chartdetailing which agencies typically require pre-publication review, and what that process looks like. Regarding the latter agreements, there are questions as to whether they would be enforceable.

For the traditional national security pre-publication review agreements, Hunt cites a case calledSnepp v. United States, which upheld the application of constructive trusts,allowing the government to collect proceeds from book sales when the author failed to submit the book for advance review.

The case centered on a former CIA employee who published a book in 1977 called Decent Interval,which included his critical observations on the governments involvement in Vietnam. In the lawsuit, the government asserted that the books author, Frank Snepp, had signed a secrecy agreementobligating him to submit any manuscript he wrote to the government for pre-publication review. Snepp refused to do so before publishing the book with Random House, and the government sued him for breach of contract in the U.S. District Court for the Eastern District of Virginia. The government sought to obtain the rights in and profits from the book.

On appeal of the district courts decision in favor of the government, Reporters Committee attorneys argued in briefs filed with theU.S. Court of Appeals for the Fourth Circuitand the U.S. Supreme Court that requiring employees to agree to pre-publication review as part of their employment contracts violated the First Amendment. [I]f this so-called contractand the remedies sought to enforce it are upheld this Court will have fashioned a civil Official Secrets Actdoctrine which may be imposed by contracton any government employee and will result in the most severe censorship of government information,the Fourth Circuit brief noted.

Even though the government conceded that Snepps account did not reveal classified or non-public information obtained during his employment, the appeals court ultimately upheld the lower courts ruling against Snepp. The Supreme Court alsoheldin favor of the government, saying, Undisputed evidence in this case shows that a CIA agents violation of his obligation to submit writings about the Agency for prepublication review impairs the CIAs ability to perform its statutory duties.

This case then paved the way for the government to file similar lawsuits against other former employees. In September, the DOJ filed alawsuitagainst former National Security Agency contractor Edward Snowden seeking to recoup profits from his book, Permanent Record,based on his failure to submit the manuscript for pre-publication review.

According to ABC News, the publishers of A Warninghave so farrefusedto provide any information to the Justice Department. The New York Times reports that the publishers havepledged and taken stepsto maintain the authors anonymity.

Of course, this is more a national security issue than a straight technology story, but, increasingly, issues involving anonymous speech are wrapped up in technology as so much of our communications go digital. Given the potential implications for anonymous journalistic sources, the TPFP team will continue to follow these types of matters.

Lyndsey Wajert

We have anupdatefrom the city of Fullerton, Californias hackingcase against local bloggers for allegedly accessing the contents of a Dropbox account the city shared with various records requesters, including one of the defendants: A California court of appeals issued a temporary stay of a lower courts gag orderpreventing the continuing publication of the citys documents.Last week, the Reporters Committee filed anamicus briefin support of the bloggers, highlighting the citys misuse of hacking laws and the potential harm it could pose to newsgathering.

Major tech platforms aredividedon how to moderate content from users speculating about the identity of the whistleblower whose complaint set off the impeachment inquiry. While Facebook and YouTube are removing references to the alleged CIA officers name and photo, Twitter has stated it would permit certain references. Twitters spokesperson said, Per our private information policy, any tweets that include personally identifiable information about any individual, including the alleged whistleblower, would be in violation of the Twitter Rules.TheTwitter policypermits sharing information that is publicly available elsewhere, in a non-abusive manner.(Some publications and activists have named the suspected whistleblower.) Separately, Rep. Eric Swalwell (D-Calif.)warnedvia Twitter that he will introduce legislation that could impose criminal liability on individuals who out a whistleblower.

The Justice Departmentchargedtwo formerTwitter employeeswith acting as unregistered foreign agents for Saudi Arabia, accusing them of accessing information on dissidents who used the platform. One of the former employees has been accused of accessing the personal information of thousands of users, including the account of a prominent dissident who was close to Jamal Khashoggi. The United Nations Special Rapporteur for extrajudicial, summary, or arbitrary killingsfound in Junethat Khashoggi, a Washington Post Global Opinions contributing columnist and former broadcaster in Saudi Arabia, was the victim of a premeditated extrajudicial execution, for which the state of Saudi Arabia is responsible.

The Trump administration ismoving forwardwith plans to set up a new National Vetting Center that would permit immigration agencies to access classified information consolidated from sources including the National Security Agencys electronic communications surveillance programs and human intelligence collected by the CIA. Critics have been concerned about mission creepat the center and the potential for it to target certain populations for special scrutiny.

At a Nov. 6 Senate Judiciary Committeehearing, Trump administration officials called for permanent reauthorization of the current business recordsprovision in foreign intelligence surveillance law, which was significantly expanded by the USA Patriot Act in 2001 and then amended in the 2015 USA Freedom Act. The latter passed following revelations that the provision was being used to collect telephone metadata in bulk. A bipartisan group of senators pushed back against a permanent renewal, expressing the most skepticism about reauthorizing the authority that would permit broad metadata collection, which survived, with some changes, in the Freedom Act. The NSA paused the program because it wasplaguedby compliance issues.

A federal court in Bostonruledon Nov. 12 that the search of electronic devices without reasonable suspicion of crimeviolates the Fourth Amendment. Lawyers for the American Civil Liberties Union and the Electronic Frontier Foundation brought the lawsuit on behalf of 10 U.S. citizens who traveled internationally and said U.S. border agents conducted illegal searches of their smartphones and laptops. The Reporters Committee, along with the Knight First Amendment Institute, filed a friend-of-the-courtbriefin support of the plaintiffs, detailing how suspicionless searches of electronic devices at the border chill newsgathering activity.

The U.S. Court of Appeals for the Ninth Circuitdeniedprofessional networking site LinkedIns petition for rehearing by the entire bench in a Computer Fraud and Abuse Act case against a company accused of scrapingpublic information from LinkedIn profiles. This ruling leaves in place the Ninth Circuits prior affirmation of a lower courts preliminary injunction prohibiting LinkedIn from blocking access to publicly available LinkedIn profiles. More broadly, as the Reporters Committeeexplainedin September, the rationale behind this decision could be extended in other cases to find that scraping publicly available information, an important tool in data journalism, does not violate the CFAA.

Gif of the Week: Well, its classified.

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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: Nov. 17, 2019 - Reporters Committee for Freedom of the Press