Freedom of the Press

Dear Friend of Press Freedom,

If you enjoy reading this newsletter, please support our work. Our impact in 2024 was made possible by supporters like you. Help us continue protecting press freedom in the year ahead — consider a year-end donation today. If someone has forwarded you this newsletter, please subscribe here.

Congress took the lead on JFK declassification. That should happen more often

Today is the anniversary of the JFK assassination. Congress passed a landmark law over 30 years to release millions of pages of assassination records, even though it doesn’t normally get involved in declassification efforts.

This makes 1992’s Kennedy Assassination Records Collection Act a remarkable outlier in combating government secrecy. As of this writing, a few thousand records remain secret, based on arguments that are tenuous at best. But thanks to the law, millions of pages are now public, an overwhelming success.

Despite this, Congress hasn’t successfully ordered another targeted, high-level declassification review effort since. It should. Read more on our website.

Trump opposes the PRESS Act. We’re not stopping the fight

President-elect Donald Trump made headlines this week by calling for Republicans to “kill” the PRESS Act — the bipartisan journalists’ shield bill to protect journalist-source confidentiality.

We told The New York Times, CNN, and The Intercept why he should reconsider. Freedom of the Press Foundation (FPF) Executive Director Trevor Timm told the Times that “The PRESS Act protects conservative and independent journalists just as much as it does anyone in the mainstream press. … Democratic administrations abused their powers to spy on journalists many times. The bipartisan PRESS Act will stop government overreach and protect the First Amendment once and for all.”

We’re not alone. Veteran investigative journalist Catherine Herridge, herself embroiled in a fight to protect her sources, told Chris Cuomo on NewsNation that her reporting — including stories that exposed defects in the Russian collusion narrative during Trump’s first term — would not have been possible without confidential sources. She explained how citizen journalists, including those using social media platforms like X and Trump’s Truth Social, need journalist-source confidentiality more than anyone.

San Francisco should not aid tech exec’s censorship campaign

We told you last week about the multifaceted censorship campaign by tech executive Maury Blackman against journalist Jack Poulson, who reported on Blackman’s past domestic violence arrest.

This week, we’ve got an op-ed in the San Francisco Chronicle, co-written by Ginny LaRoe of California’s First Amendment Coalition, calling out San Francisco City Attorney David Chiu for his role. Chiu, at the request of lawyers for Blackman (whose companies, by the way, have received lucrative contracts from the city), sent a letter to Poulson telling him his reporting violated a California law against disseminating sealed arrest reports.

We told Chiu to go back to constitutional law class and stop carrying water for censorial bullies.

Both parties abuse spying powers

Are you a national security reporter who wants to know if the FBI has accessed your social media, email, or phone records? Too bad, that’s classified. The government can demand your information from a wide variety of third parties, and it can force those companies to keep the fact that it is investigating you a secret indefinitely.

Government gag orders to silence these third parties are especially concerning because the threshold for their use is low and they’ve often been abused — by Democratic and Republican administrations alike. Social platform X, owned by Elon Musk, has unsuccessfully waged separate lawsuits to curtail some of the government’s favorite surveillance tools. Whatever you think of Musk and his ties to Trump, people across the political spectrum should nonetheless wish X success in fighting secret surveillance. Read more on our website.

Time to confirm inspectors general

The more powerful the agency, the greater the need for strong internal oversight. But this can't happen without an inspector general. Yet the Treasury Department hasn't had one for nearly 2,000 days, and the National Security Agency has gone over 700 days without one.

FPF endorsed a letter organized by Citizens for Responsibility and Ethics in Washington urging Senate Majority Leader Chuck Schumer to prioritize filling the vacancies before time runs out. Read the letter here.

What we’re reading

A legal showdown over press freedom (The Free Press). Appellate judges conducted parts of a hearing over Catherine Herridge’s First Amendment right to protect sources behind closed doors. As we told The Free Press, it’s a serious problem when, “The future of the reporters’ privilege for Washington, D.C.-based whistleblowers and journalists, a pretty important group, ends up being heard in secret.”

US House passes bill to punish non-profits deemed to support ‘terrorism’ (The Guardian). The House passed a dangerous bill that would give the Trump administration wide discretion to declare nonprofit organizations terrorist supporters and strip them of their tax-exempt status. That includes nonprofit media outlets and organizations that serve as sources for reporters. Fewer representatives voted for the bill this time around than in the past, but shame on those who still did.

‘Unconstitutional scheme’: Alabama journalists, school officials sue over arrests (AL.com). Two Alabama journalists, among those arrested last year for nothing more than reporting news, have sued the Escambia County district attorney and others involved in the shocking charges. Good. We’ve long called for accountability for those behind this outrageous case.

Biden's legacy: Leaving FOIA in shambles (The Dissenter). No "systems" for greater transparency were established, and issues with FOIA were not properly dealt with in the Biden administration. As Trump returns to the White House, FOIA is just as fragile and in disrepair as it was when Joe Biden was elected in 2020.

Inside an American reporter’s Russian prison ordeal (The Washington Post). The imprisonment of Wall Street Journal reporter Evan Gershkovich rightfully got plenty of attention, but he wasn’t the only American journalist who spent time behind bars in Russia on sham charges. The Post has more on the case of Radio Free Europe/Radio Liberty’s Alsu Kurmasheva.

Publisher of raided Kansas newspaper delivers advice to journalists: ‘Make democracy great again’ (Missouri Independent). Congratulations to Marion County Record Publisher Eric Meyer on his induction into the Kansas Press Association Newspaper Hall of Fame. It would’ve been well deserved even if last year’s raid on the Record hadn’t made him an involuntary press freedom icon.

This article originally appeared in The Dissenter. The article’s author, The Dissenter Editor Kevin Gosztola, kindly allowed us to republish it. You can (and should) subscribe to The Dissenter here.

President Joe Biden’s administration promised a “recommitment to the highest standards of transparency,” and officials were well aware of the extent to which Donald Trump’s administration had engaged in censorship and undermined the Freedom of Information Act.

Despite promises, when it came to FOIA and the public’s right to know, the Biden administration was just as bad or slightly worse than the Trump administration during its last fiscal year in office. In fiscal year 2023, United States government agencies censored, withheld, or claimed that they could not find any records two-thirds of the time.

According to Matthew Connelly, author of “The Declassification Engine: What History Reveals About America’s Top Secrets,” the Biden administration did not give “policymaking in this area much more priority” than the Trump administration. “After his first year, advocacy groups were unable to find anyone in the White House who was even working on the issue.”

Attorney General Merrick Garland issued a memorandum on FOIA in 2022 that directed “all executive branch departments and agencies to apply a presumption of openness” when it comes to FOIA. It also made clear that the Department of Justice would not defend “nondisclosure decisions" when a department or agency failed to do so. Yet this was the empty pledge put forward by the DOJ for the past 15 years.

In 2009, Attorney General Eric Holder claimed the government would only defend a denial of a FOIA request in court if the agency reasonably foresaw that “disclosure would harm an interest protected by one of the statutory exemptions” or if disclosure was “prohibited by law.” Officials under President Barack Obama still fought the release of the DOJ’s Office of Legal Counsel legal opinions and other records.

Similarly, in October 2024, the Biden DOJ appealed a landmark decision that ordered the government to proactively disclose OLC legal opinions as required by FOIA’s “reading-room provision.”

The Knight First Amendment Institute had pursued transparency because, “Twenty years ago, legal contortions by OLC lawyers green-lighted torture and other gross human rights violations in Iraq, Guantánamo Bay, and secret CIA prisons.” Disclosure was necessary to discourage the OLC from acting as a “secretive legal shop with the power to bend or distort the law for the White House or federal agencies.”

As a result of the Biden DOJ’s resistance to openness, the second Trump administration will not have to worry about the public learning about any secret reinterpretations of the law that are pursued to bolster the imperial presidency.

Surveillance secrecy, censoring Guantánamo prisoners' art

The American Civil Liberties Union and The New York Times sued the Biden administration after it refused to disclose the “rules governing lethal strikes outside of recognized warzones.” Initially, not only did Biden officials ignore calls to release the rules, but according to Just Security, the administration would not even release a fact sheet for the government’s “drone-strike playbook” as Obama did.

Though the Senate Select Committee on Intelligence’s report on CIA torture confirmed that the agency had “operational control” over Camp VII at Guantánamo Bay, the Biden administration defended the CIA from having to confirm or deny whether it had further information about the agency’s role at Guantánamo.

As the ACLU outlined, declassified documents, as well as “documents and transcripts from the Guantánamo military commissions proceedings,” were publicly available. Fighting this FOIA request in court represented a naked attempt to protect the CIA from facing further scorn for heinous acts that the agency committed in the global “war on terrorism.”

The Pentagon ended a Trump policy that barred 41 prisoners at Guantánamo from taking their art if and when they were released. BuzzFeed reporter Jason Leopold fought for the disclosure of prisoner art, and in 2022, U.S. Southern Command finally released “photographed copies of the artwork.” But hundreds of paintings were censored.

“When prisoners' art could potentially disclose military secrets, we're well through the looking glass,” the Electronic Frontier Foundation and MuckRock News declared.

A panel established by Congress that is known as the Public Interest Declassification Board recommended disclosure of the full intelligence report on journalist Jamal Khashoggi and the Kingdom of Saudi Arabia’s involvement in his murder. However, Biden only released a redacted version of the report and the Biden DOJ fought a FOIA lawsuit to force greater transparency.

When the ACLU asked the U.S. Supreme Court to order the Foreign Intelligence Surveillance Court to release all legal opinions containing novel or significant interpretations of the law, the Biden DOJ defended the secret surveillance court. Officials insisted that the courts do not even have jurisdiction to consider whether citizens have a First Amendment right to access the surveillance court’s legal opinions.

The Supreme Court sided with the administration and refused to hear the ACLU's appeal. Justices Neil Gorsuch and Sonia Sotomayor dissented: “This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” and, “If these matters are not worthy of our time, what is?” (Article III in the U.S. Constitution established the judicial branch.)

Hiding JFK assassination records, 'virtual visitor logs'

In 2022, the Mary Ferrell Foundation sued Biden and the National Archives and Records Administration for failing to fulfill the requirements of the JFK Assassination Records Collection Act. The organization accused Biden of relying on flimsy claims of “anticipated harm” to keep thousands of records hidden because decades later the CIA and other executive branch agencies still oppose their disclosure.

The Biden DOJ defended the Homeland Security Department as NPR fought for thousands of pages of “confidential inspection reports” detailing conditions in Immigration and Customs Enforcement detention facilities. The reports described “barbaric practices, negligent medical care, racist abuse and filthy conditions.”

In 2022, the U.S. District Court for the District of Columbia found that DHS had inappropriately invoked FOIA exemptions to hide “purely factual information” and instructed DHS to reprocess NPR’s request for records.

Before Amos Hochstein played a key role in helping the Biden administration support Israel’s ethnic cleansing campaign in Gaza, he was a Biden energy official. Friends of the Earth, an environmental organization, sued the State Department in 2022 and 2023 to obtain files on Hochstein.

“Hochstein enjoyed a profitable run in the private sector that included consulting and speaking fees from fossil fuel interests and an executive position at LNG developer Tellurian,” Friends of the Earth recalled. “Since the Russian invasion of Ukraine, Hochstein has assumed a leading role in the newly established US-EU Energy Security Task Force, whose mandate includes increasing LNG exports to Europe.”

FOE sought to uncover whether Hochstein was more engaged in fossil fuel lobbying than diplomacy. Eventually, some records were released, but the State Department’s refusal to comply with FOIA meant that the organization had no idea how many documents the department had on Hochstein and how long it would be before they received all the records responsive to their request.

Trump received widespread condemnation for hiding visitor logs from the press and public. Biden resumed the disclosure of visitor logs after he assumed office, but his administration carved a loophole in its commitment to openness by excluding “virtual visitor logs."

Due to the COVID-19 pandemic, as Politico reported, virtual meetings were the “primary mode of interaction” for Biden during his first year in office. Lists of attendees were kept secret.

Open government groups urged Biden to “take action” on “disappearing messaging apps and mandate messaging apps capture communications used in official business.” Several Trump officials were known to have used Signal, which would make it difficult for agencies to abide by the Presidential Records Act and retain communication records. But the Biden administration did nothing meaningful to address this issue.

A 'tsunami' of secrets

After the Director of National Intelligence Avril Haines called attention to government secrecy in January 2023, a group of U.S. senators unveiled legislation that they claimed would significantly deal with government secrecy and reform the “classification process.” It proposed designating the Office of the Director of National Intelligence as the “executive agent for classification and declassification,” developing “technical solutions” for automatic declassification, and establishing an executive committee for the classification and declassification of records.

However, if adopted, this legislation almost certainly would have entrenched more decision-making power in the hands of the U.S. president and security agencies, who have consistently worked to thwart transparency on national security and military matters.

To further illustrate the absurdity of government secrecy, Haines sent a letter on overclassification to Democratic Sen. Ron Wyden and Republican Sen. Jerry Moran in January 2022. It had an attachment on “declassification efforts” at U.S. intelligence agencies.

The version of the attachment released to the public censored the amount of funds spent each year by the CIA, National Security Agency, Defense Intelligence Agency, National Geospatial-Intelligence Agency, and the Office of the Director of National Intelligence, which Haines oversaw.

Government officials, according to Connelly, spend around $18 billion a year to keep secrets. More specifically, the DOJ spends about $40 million a year on litigation to fight the release of records.

FOIA is plagued by systemic problems. Under Biden, the Project on Government Oversight called attention to the “uptick in submitted FOIA requests, combined with the chronic underfunding of agency FOIA offices,” which “means that agency backlogs and processing delays continue to increase."

“When agencies do respond to requests, FOIA exemptions meant to protect classified or otherwise legally sensitive information are often used to excessively withhold information that rightfully belongs to the public," POGO added.

The Information Security Oversight Office indicated in 2021 that agencies could "no longer keep (their) heads above the tsunami of digitally created classified records.”

Walter Shaub, who was the director of the Office of Government Ethics and worked as a fellow at POGO, warned after Trump’s first term, “We’ve been through four years of having to battle tooth and nail to get any documents, and we need (Biden) to set up new systems so the next administration will follow them.”

No "systems" for greater transparency were established, and issues with FOIA were not properly dealt with. As Trump returns to the White House, FOIA is just as fragile and in disrepair as it was when Biden was elected in 2020.

This article is the first in a series of articles on President Joe Biden's legacy when it comes to press freedom, whistleblowing, and government secrecy. The series will be published by The Dissenter from now until January 2025.

It’s the anniversary of JFK’s assassination, and the law that successfully released most assassination records is over 30 years old.

Congress doesn't normally get involved in declassification efforts, though.

It has largely ceded this authority to the president, who sets the rules for classification and declassification through executive order. (The major exception is classified information about nuclear materials and facilities, which is controlled by the Atomic Energy Act.)

This makes 1992’s Kennedy Assassination Records Collection Act a remarkable outlier in combating government secrecy.

As of this writing, a few thousand records remain secret, based on arguments that are tenuous at best. But millions of pages are now public thanks to the law, making it an overwhelming success.

Despite this, Congress hasn’t successfully ordered another targeted, high-level declassification review effort since.

It should. These projects promote the public’s right to know, improve congressional oversight, and save the government money (because keeping documents classified is expensive).

The JFK Act

Oliver Stone’s 1991 film, “JFK,” persuaded much of its audience that its assassination conspiracy theories were true. It was so effective — and so damaging to public opinion about the government — that it encouraged Congress to pass a law to prove what the government really knew about the president’s death.

The JFK Act created the Assassination Records Review Board to determine the merit of agency claims that certain records had to stay secret. The board began its work in 1994 as “a new and unusual legislative remedy to the problem of government secrecy.”

By the time the board issued its final report in 1998, it was able to convince agencies to release tens of thousands of records.

It also agreed with agencies that 35,000 documents needed ongoing protection. The act further required those records to be released in full by October 2017 — 25 years after the passage of the law — unless the president agreed with agencies that releasing certain records would cause so much harm that it would outweigh public interest in release.

The CIA and FBI successfully convinced both President Donald Trump and President Joe Biden that 3,500 records must remain secret — seven years after the 2017 deadline.

But as much as 99% of the assassination records — nearly 5 million pages — have been declassified and are available.

That makes the JFK Act a success. Compare this to the number of documents that have been declassified on other high-interest topics, from UFOs to government surveillance, and the act’s success is all the more striking.

Other high-level declassification efforts

Congress has attempted, so far unsuccessfully, to replicate the JFK Act.

Senate Majority Leader Chuck Schumer tried to introduce a UFO transparency bill last year, citing the JFK Act in his attempt. He said that “the measure would create a board just like with the JFK assassination records to work through the declassification of the many government records on UAPs … This model has been a terrific success for decades and should be used with UAPs.”

Senate Republicans killed the bill.

In 2017, Sen. Jay Moran tried to introduce a provision to the National Defense Authorization Act that would have required the declassification of documents concerning military members’ exposure to toxic material. It stated that information could only remain classified if it would “materially and immediately threaten the security of the United States.” This is a stricter withholding standard than is even found in the executive order on classification.

It was adopted by the Senate but did not ultimately become law.

There have also been several unsuccessful attempts by Congress to declassify information on what the U.S. knew about human rights abuses in Latin America. They failed as well.

But just because some powerful lawmakers are addicted to secrecy, it doesn’t mean the legislative branch should give up.

Congress must keep trying

Congress should not be discouraged by past failures. The work is too important — and there have been examples of other kinds of successful high-level declassification projects in recent years to learn from.

The best example is 2019’s Argentina Declassification Project, which forced the CIA, FBI, and others to declassify 47,000 records on what they knew about human rights abuses in South America. This presidential initiative began under President Barack Obama and was completed by Trump.

Congress should learn from these success stories and bring the JFK Act model into the 21st century. Such a model could be used to declassify what the government knows about the dangers of climate change, nuclear weapons, federal spying abuses, and much more.

Elon Musk has repeatedly called in recent weeks for abolishing classification altogether. He’s got the president-elect’s ear, so anything is possible. But until then, and in the absence of government-wide classification reform, this targeted approach is one of our best bets for transparency.

Are you a national security reporter who wants to know if the FBI has accessed your social media, email, or phone records? Too bad, that’s classified.

The government can demand your information from a wide variety of third parties, and it can force those companies to keep the fact that it is investigating you a secret indefinitely.

Government gag orders to silence these third parties are especially concerning because the threshold for their use is low and they’ve often been abused — by Democratic and Republican administrations alike.

This ongoing, unconstitutional shroud denies us the ability to fight back in court or conduct any meaningful oversight of the government’s secrecy claims.

Social platform X, owned by President-elect Donald Trump confidant Elon Musk, has unsuccessfully waged separate lawsuits to curtail two of the government’s favorite surveillance tools: 1) the FBI’s national security letters, and 2) gag orders issued under the Stored Communications Act.

Musk’s influence within Trump’s administration, and the ways he may materially benefit from it, should come under serious scrutiny, as should his conduct since taking over X (and everything else he does that impacts Americans’ lives). But people across the political spectrum should nonetheless wish X success in its efforts to weaken the government’s ability to spy on citizens and then hide the fact that it does so.

National security letters regularly abused

This January, the Supreme Court declined to hear an appeal in X's case challenging unnecessary secrecy around the FBI’s national security letters, sent by the bureau during national security investigations.

The letters typically seek customers’ financial records or phone and electronic communications from a wide array of businesses. NSLs are regularly abused and issued without judicial oversight or time limits on their gag orders.

When the Obama administration tightened its rules around when the government could spy on journalists, it let the FBI bypass those rules completely by using NSLs. This left reporters few legal protections when the government investigates leaks of national security information — even if the leaks are in the public interest, which they often are.

X initially filed its NSL suit in 2014 (when it was known as Twitter and not yet owned by Musk), after the government prevented Twitter from publishing the exact number of NSLs it received in its Information Requests reports.

The FBI argued that the information would damage national security if released, so redacted the report Twitter submitted to it for review.

Twitter argued the redactions violated its right to free speech before the speech had even occurred (a “prior restraint,” which the Supreme Court considers the most serious of First Amendment violations).

Vague and unsubstantiated claims about harm to national security don’t trump First Amendment rights. But the 9th U.S. Circuit Court of Appeals held in the case that gag orders related to national security aren't as constitutionally problematic as other prior restraints.

We believe that's wrong. But even if the constitutional bar were lower, the government should still have had to show that individual company statistics would cause some actual harm to national security, beyond that from what's already public (the Office of the Director of National Intelligence already reports the total number of NSLs issued across all companies).

The court’s failure to take up this issue leaves national security reporters in limbo and the public in the dark.

Gag orders issued under the Stored Communications Act

In October, the Supreme Court denied another X petition, this time over gag orders issued under the Stored Communications Act. The SCA can prevent companies from telling users the government has issued a warrant for their data even years after the gag orders expire.

The X suit concerned the Justice Department’s demand for records from Trump’s X account, and the accompanying gag order that prevented X from notifying Trump about the warrant.

X argued “that the consequences of this authority were broad, potentially allowing the government to violate attorney-client or journalist-source privileges.”

The government said, as it does in most cases concerning information even tangentially related to law enforcement, that notifying the recipient of the warrant would compromise its investigative capabilities. That’s another vague and overused claim.

The irony in the X suit is that during Trump’s first term, his administration used the same SCA provisions to secretly seize journalists’ phone and email records, including for reporters at The Washington Post, CNN, and The New York Times.

When SCOTUS denied X’s petition, it left journalists and other investigative targets at risk, and failed to resolve divisions between lower courts on the role of service providers “in protecting potentially privileged materials seized by the government.”

The government shouldn’t have a blank check to demand user data from social media or telecommunications companies. And people should know if their records are being seized as part of an investigation against them, so they have the opportunity to fight back.

If Musk uses his access to the Trump administration to blunt these tools, we should support it.

Dear Friend of Press Freedom,

If you enjoy reading this newsletter, please support our work. Our impact in 2024 was made possible by supporters like you. Help us continue protecting press freedom in the year ahead — consider a year-end donation today. If someone has forwarded you this newsletter, please subscribe here.

Now or never for the PRESS Act

Congress has two months to pass the most important press freedom legislation in modern history and safeguard journalist-source confidentiality. The bill got a push from an unexpected place this week — John Oliver’s satirical TV news show. Wired, TechCrunch, and The Verge also covered it.

Next week, the need for the PRESS Act will be further underscored by an appellate hearing in the case of veteran investigative journalist Catherine Herridge. She is challenging a ruling that holds her in contempt of court for refusing to burn her sources. That ruling never would’ve happened if the PRESS Act was on the books. Alarmingly, this important First Amendment hearing may be held in secret.

Read more from us about the Herridge hearing and its significance. And tell your senator to support the PRESS Act, using your choice of email tools from Defending Rights & Dissent, the ACLU, or the Electronic Frontier Foundation, or a call tool from Fight for the Future.

Save nonprofit news

A valiant effort from press freedom and civil liberties advocates helped prevent passage in the House of Representatives of a bill to allow the treasury secretary to arbitrarily revoke the tax-exempt status of nonprofits — including nonprofit media outlets.

But the House is trying again next week, and if it doesn’t succeed it will likely keep trying for the next four years. Use the ACLU’s convenient online form to tell your representative to oppose this awful mess of a bill. Let’s not hand Trump administration officials a loaded weapon they’re sure to aim squarely at critics of Israel and other dissidents.

Anatomy of a censorship campaign

Tech executive Maury Blackman’s tactics against journalist Jack Poulson are a prime example of how the wealthy and powerful try to stifle the press, and how the First Amendment is often the only thing standing in their way. That and the Streisand Effect.

We wrote about Blackman’s use of frivolous copyright takedown demands, complaints to hosting providers, and efforts to have the San Francisco City Attorney’s Office try to silence Poulson, who had reported on Blackman’s domestic violence arrest on his Substack blog. When all that failed, Blackman filed a $25 million lawsuit — a clear SLAPP, or strategic lawsuit against public participation.

Here’s how that’s going for him: Poulson’s story is still online and a great legal team has stepped up to defend his interests. But the reporting Blackman wants silenced is no longer just on Substack – now it’s in the San Francisco Chronicle and Daily Mail. Oops.

Crunch time to Trump-proof the press

Throughout this year’s presidential election campaign, we’ve warned Democrats that if they’re really as worried as they claim to be about authoritarianism in a second Trump term, they need to pass some bills to mitigate that risk. Or at least stop handing authoritarians legislative gifts.

They didn’t listen. Now they’ve got two months left to do some damage control. We wrote an op-ed for the Daily Beast about what can still be done. Read it here, and watch our executive director Trevor Timm talk on the Thom Hartmann Program about what Trump 2.0 means for press freedom.

What we’re reading

The WIRED guide to protecting yourself from government surveillance (Wired). Anti-surveillance technology “is the last recourse of a lot of people in vulnerable positions,” said Freedom of the Press Foundation (FPF) Director of Digital Security Harlo Holmes, calling for increased efforts to “make sure that people have the best tools in their hands and their pockets to maintain their privacy.”

Matt Gaetz investigation report could be made public—here's how (Newsweek). It’s absurd that there’s even a chance that a taxpayer-funded report that might implicate the attorney general nominee for trafficking teenagers might not be made public.

DOT asks judge to dismiss Streetsblog’s lawsuit over agency’s public info stall (Streetsblog NYC). New York’s Department of Transportation “consistently violates the state's Freedom of Information Law by delaying for six months nearly all of the requests for public information from journalists — and must be ordered to end the practice.”

Many ‘undercover’ officers in lawsuit over LAPD photos are just regular cops, city says (Los Angeles Times). Unreal. Los Angeles wasted its time and the people’s money litigating and settling SLAPP suits claiming a journalist endangered undercover officers by identifying them. Now the same city has the nerve to tell a judge those same cops aren't really undercover and then ask to unmask them.

Freedom of Press Foundation supporting Indian Time reporter arrested while covering protest (Indian Time). Indian Time covers the letter we led urging prosecutors in northern New York to drop charges against journalist Isaac White, who was arrested for disobeying illegal dispersal orders while covering a land claim protest. We’re happy to report that the charges against White have been dropped.

Throughout this year’s presidential election campaign, we’ve warned Democrats that if they’re really as worried as they claim to be about authoritarianism in a second Trump term, they need to pass some bills to mitigate that risk. Or at least stop handing authoritarians legislative weapons.

They didn’t listen. Now they’ve got two months left to do some damage control. We wrote an opinion piece for the Daily Beast about what can still be done.

First, Democrats need to prioritize passing the PRESS Act. The bill to protect journalist-source confidentiality has broad bipartisan support because surveillance of journalists is far from just a Trump issue.

They also need to grow a spine when it comes to (among other things) pushing for press freedom in the Israel-Gaza war; increasing transparency; safeguarding encryption; cracking down on strategic lawsuits against public participation, or SLAPPs; fixing a dangerous surveillance law many of them voted for earlier this year; taking Trump up on his offer to drop the TikTok ban; and fighting back against efforts to weaponize anti-terrorism laws against the press.

Read the op-ed.

Maury Blackman’s tactics against journalist Jack Poulson are a prime example of how the wealthy and powerful try to silence reporting, and how the First Amendment is often the only thing standing in their way.

Arrest report reported

Poulson is the executive director of the nonprofit Tech Inquiry and author of All-Source Intelligence, a Substack newsletter that focuses on links between technology companies and the defense and intelligence agencies. Blackman is the former CEO of Premise Data, a company that Poulson had written about repeatedly. He’s not the only one writing about the company and its ties to the national security state — The Wall Street Journal reported in 2021 that it pays app users to “unwittingly provid[e] basic intelligence to the U.S. military.”

Blackman’s censorship campaign started when Poulson published an article in 2023 about the executive’s 2021 arrest on suspicion of domestic violence and then linked to the disturbing arrest report. Blackman was never charged, and the victim recanted her statements in the report. A California court had sealed the arrest report in 2022. Poulson says he obtained it from a confidential source.

Since publication, Blackman or his apparent representatives have used a variety of methods to try to get the article and arrest report taken down. These tactics — from the misuse of copyright law to threats of penalties explicitly prohibited by the First Amendment and the abuse of the legal system — show how determined and well-resourced people can attack reporting they dislike.

It also shows what journalists can do to prepare.

Abusive DMCA takedown request

Shortly after the article was published, Poulson reported that someone claiming to represent Blackman emailed him to ask for the article to be taken down, and even suggested they would pay to have it removed.

When Poulson refused, a person using a very similar name sent a takedown request under the Digital Millennium Copyright Act to the cloud service provider that was hosting an external copy of the arrest report. Poulson successfully refuted the request, but also decided to host the report on Substack himself.

There’s nothing remotely copyright-infringing about the arrest report. It’s a government record, so it can’t be copyrighted in California. According to Poulson, the DMCA notice also used a fake phone number and address, and a fake digital signature claiming to be from Poulson himself.

But although though the DMCA notice-and-takedown scheme — which was intended to protect both copyright and free expression online — appears to have worked in this case, it’s undoubtedly become a target for abuse. Shady reputation management firms, among others, know that while news outlets may be willing to invest in a First Amendment battle, disinterested internet providers often are not.

Journalists must understand that the DMCA can be used as a weapon against their reporting, and respond to takedown notices with information refuting claims of copyright infringement.

Complaint made to other hosting providers

Blackman also complained about Poulson’s reporting to Substack and Amazon Web Services, in an attempt to have them remove the arrest report and other information under those sites’ internal policies.

Substack appears to have complied, at least in part. Poulson’s article about Blackman includes an editor’s note from June 2024 noting that Substack had “temporarily unpublished” the article twice, until Poulson removed the address where Blackman was arrested. Substack did not, apparently, require Poulson to remove the arrest report or details from it, as Blackman had demanded.

This further shows how journalists’ ability to publish their work can be subject to the whims of tech companies when they publish online through third-party services. Reporters should scrutinize the platforms where they publish to ensure they’ll stick up for First Amendment rights, even in the face of threats. (And, to Substack’s credit, it appears mostly to have done so.)

Blackman involves city attorney

In the fall of 2024, the San Francisco City Attorney’s Office began writing to Poulson and Substack, at the behest of Blackman and his lawyers, demanding removal of the arrest report. The letters claim that the posting of the arrest report violates a California law that imposes a civil penalty for the publication of sealed arrest reports.

For some reason, the letters don’t mention all of the Supreme Court cases that say that journalists have a strong First Amendment right to publish lawfully obtained, truthful information on matters of public concern, and that state laws that say otherwise are unconstitutional.

The city attorney’s first letter to Substack also doesn’t mention Section 230 of the Communications Decency Act, which would clearly immunize Substack for liability based on Poulson’s posts. Substack, however, apparently pointed out the law to the city attorney in its response.

The government bolstering powerful tech executives’ efforts to silence critics is, unfortunately, becoming more and more commonplace. Everyone who cares about free speech must push back on officials who do other’s censorious bidding. And a city attorney, who presumably learned about prior restraints in law school, should certainly know better.

Attempts to unmask Poulson’s source

While all this was going on, Blackman was simultaneously trying to unmask Poulson’s source for the arrest report.

While Blackman was still CEO of Premise Data, the company filed a lawsuit against some former employees. According to discovery demands in that lawsuit, Premise Data demanded records of some people’s communications about the arrest report with Poulson or with the San Francisco Police Department. Premise Data’s lawyers also investigated who had filed public records requests for the arrest report.

It’s not clear if the discovery demands yielded information about Poulson’s source. But reporters working with confidential sources should keep in mind that sources can be unmasked in a variety of ways and always try to practice good digital security.

Executive files frivolous anonymous lawsuit

Apparently unsatisfied with these previous efforts, last month Blackman reportedly filed a lawsuit against Poulson, Tech Inquiry, AWS, and Substack, claiming $25 million in damages based on the publication of the arrest report.

Although he used a pseudonym to file the lawsuit, it’s been widely reported that Blackman is the plaintiff, and the allegations in the case match the facts described by Poulson in his newsletter (plus, Blackman admitted in court filings that the San Francisco Chronicle accurately identified him).

The lawsuit is frivolous for the same reasons as the city attorney’s letter. But, unfortunately, Blackman may not need to win his lawsuit for it to have a chilling effect on journalism. Strategic lawsuits against public participation, or SLAPPs, punish journalists and others by making them spend time and money defending themselves — and they send a message to any other journalists out there who might be considering challenging the wealthy and powerful.

Fortunately, numerous states, including California, have anti-SLAPP laws that allow SLAPP victims to have cases dismissed against them early and to recoup their costs. Reporters should familiarize themselves with their state’s law and, if they live in a state without anti-SLAPP protection, urge lawmakers to pass one.

Blackman seeks emergency takedown order

Not only has Blackman filed a frivolous lawsuit but he’s also seeking an emergency order that would require the immediate takedown of Poulson’s article reporting on his arrest.

On Nov. 12, Blackman filed a motion for a temporary restraining order as part of his ongoing lawsuit against Poulson and the other defendants. At a Nov. 13 hearing, a judge put that motion on pause, ruling that Blackman first had to seek the court’s permission to litigate under a pseudonym. That should be tough — the cat’s already out of the bag, because Blackman’s lawyers created a public record of his identity by emailing city officials about Poulson’s article. But we’re told Blackman’s attorney said he plans to revive the censorship motion after dealing with the pseudonym issue.

Such an order would be an unconstitutional prior restraint — but emergency motions like Blackman’s are often used to get judges to censor journalists without having time to do their research first.

Journalists must be ready to respond quickly when a litigant seeks an order from a court requiring a takedown or prior restraint. Freelance journalists, especially, may want to think in advance about whether they will be able to find legal counsel if they’re ever in this position.

Thankfully, Poulson and Tech Inquiry are represented by counsel from the Electronic Frontier Foundation and law professor Susan Seager.

Poulson’s fellow journalists should not be intimidated to show their solidarity and report on this disturbing censorship campaign. Blackman admitted in his declaration that since he sued Poulson, “the sealed report and its contents … have been spread and are spreading far more broadly than before.” It sounds like he’s already learning about the Streisand Effect — let’s make sure the next SLAPP-happy tech bro knows about it too.

Editor’s Note: This article has been updated to reflect the outcome of the Nov. 13 hearing and to correct an inaccurate description of the response by the cloud service provider to the DMCA request targeting the arrest report.

How to limit Trump’s power to destroy the press

Donald Trump, an anti-press extremist obsessed with punishing journalists and news outlets that criticize him, will be the next president. Before Inauguration Day, President Joe Biden and Congress must limit as much as possible Trump’s power to destroy freedom of the press.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern wrote this week about the risks Trump’s second term poses to journalists and sources. Among them: increased surveillance, jailing journalists, and siccing federal agencies on reporters and news outlets.

Immediately after Trump’s reelection, FPF Executive Director Trevor Timm highlighted three priorities for protecting press freedom:

• Pass the PRESS Act (contact your senator today)
• Fix Section 702 of the Foreign Intelligence Surveillance Act
• Oppose Israel’s use of U.S. weapons to kill journalists, and the abuse of anti-terrorism laws to target dissent

Read Timm’s full statement here.

FPF fought back against Trump’s attacks on press freedom in his first term, and we’re ready to do it again in his second. Join us by donating to our work today.

Journalists: Beef up your digital security

Now more than ever, journalists need to have strong digital security practices.

Starting this week until Inauguration Day, FPF’s Digital Security Training team joins forces with the Knight Election Hub and other press freedom organizations to provide safety support for U.S.-based journalists and news outlets covering the U.S. election and its aftermath. To learn more or to apply for support if you’re from an eligible newsroom, check out Knight Election Hub’s Urgent Care.

Encrypted services, in particular, should be a part of every reporter’s toolkit. We recently hosted a conversation with journalists Julia Angwin and Lorenzo Franceschi-Bicchierai, along with

FPF’s Harlo Holmes, to talk about how and why they use encryption. Read their tips for how you can use encryption, too, or listen to the whole conversation.

If you are looking to learn more about encryption and how to implement it into your workflow, FPF also offers a toolkit for media-makers.

Time to check government secrecy

Trump’s election not only threatens press freedom. It also puts us in uncharted territory when it comes to corrosive government secrecy. FPF’s Daniel Ellsberg Chair on Government Secrecy, Lauren Harper, wrote about what can be done to help preserve transparency before Trump takes office.

We must assume that federal agencies will delete vast swaths of public data and information, as they did during Trump’s first term. Journalists and others should immediately download and save records from websites of agencies that will likely be targets for the second Trump administration.

For Biden’s part, he must amend the executive order on classified national security information to specifically state that violations of law may not be classified at all. And members of Congress must begin preparing for Trump-controlled agencies to ignore their requests for information and obstruct legitimate oversight.

Harper also is heeding what needs to be done to ensure the Freedom of Information Act meets the public’s needs in 2024 and beyond. In honor of the 50th anniversary of the 1974 amendments to FOIA, she led an Oct. 31 discussion on social platform X with experts Thomas Susman, one of the key authors of the amendments, and Ryan Mulvey, staff at FOIA Advisor. FOIA is even more important with an anti-transparency administration coming in.

Journalism isn’t consumer fraud or electioneering

Trump’s election may also embolden other public officials and politicians to attack the press, including by using the legal system.

We wrote this week (prior to the election) that Trump’s lawsuit against CBS for its “60 Minutes” interview of Kamala Harris furthers a trend of conservatives using consumer protection law to weaponize meritless libel lawsuits to SLAPP the press.

The greatest risk of Trump’s lawsuit isn’t to CBS. It’s to the future news outlets that will face an onslaught of frivolous consumer fraud investigations, whether initiated by Trump, state attorneys general, or future copycats. Strong anti-SLAPP laws at the state and federal level, and their vigorous enforcement by courts, can help deter these legal attacks on the free press.

We also wrote about Trump and his allies’ dangerous new theory that reporting they see as biased against them is illegal election interference. Examples include his efforts to weaponize the Federal Communications Commission — supported by FCC appointees from his first term — and his absurd complaint to the Federal Elections Commission that The Washington Post’s coverage constitutes an in-kind contribution to Vice President Kamala Harris’ campaign.

What we’re reading

Trump wins, the press loses (Columbia Journalism Review). U.S. Press Freedom Tracker Managing Editor Kirstin McCudden gave context to the threats journalists face in Trump’s second term by looking back at his first. 2020, in particular, was “a year of unprecedented attacks,” the vast majority of which occurred at protests over the murder of George Floyd by police.

Top Kari Lake campaign adviser jokes about sending journalists to ‘the gulag’ — then doubles down (Independent). The Senate race in Arizona hasn’t been called yet, so it’s too soon to tell whether voters rejected Republican candidate Kari Lake, whose senior adviser made these disgusting comments and later “referred to the media as the ‘enemy of the people.’”

Why the next president should pay heed to the Republic of Z (Politico). How do you know secrecy in the U.S. has jumped the shark? The State Department doesn't even want to release records on a fake country it made up to help train diplomats.

US says Iranian-American held in Iran as tensions high following Israeli attack on country (The Associated Press). After weeks of rumors, government sources confirmed that Iranian-American journalist Reza Valizadeh has been detained in Iran for months. It’s anyone’s guess whether Trump will care about detained journalists overseas, even when the authoritarians detaining them aren’t the ones he likes. The Biden administration needs to get to the bottom of this situation before it’s too late.

Come see us in London

We’re co-hosting Source! the London Logan Symposium with The Centre for Investigative Journalism Nov. 14-15. Hear from journalists from all over the world about press freedom issues and the challenges they face in protecting themselves and their sources. Register to attend here.

The scope of the public’s right to know should be decided in public. Who would argue with that?

But on Nov. 18, 2024, the federal appellate court for the D.C. Circuit may hold a secret hearing about whether investigative journalist Catherine Herridge can be fined $800 per day for refusing to comply with a judicial order to divulge her sources. 

If the court rules against Herridge, every potential government whistleblower in the nation’s capital will think twice before talking to journalists in confidence. That means that in the second Trump administration, we’ll all know less about government waste, corruption, and malfeasance.

In other words, the stakes are high, and we’re entitled to know the full basis for the appellate court’s decision, whatever it may be. 

Herridge’s reporting that led to that contempt finding pertained to a decade-old FBI investigation of a scientist and university president’s alleged ties to the Chinese military. The scientist, Yanping Chen, sued the FBI and other federal agencies for allegedly violating her rights under the federal Privacy Act. 

The court sealed documents relating to the FBI investigation at the center of the lawsuit, even though the documents in question are not classified and can’t jeopardize the investigation, which is over. It’s unclear whether the public’s interest in the case, and the First Amendment, were factors in the decision to seal the records.

In any event, Chen argued that the secrecy surrounding the documents necessitates the closure of hearings (or portions of hearings) that relate to those documents. Herridge filed her own motion opposing secret hearings, arguing that “It would be incongruous if the press were barred from an oral argument that will set the bounds of press protections under the First Amendment.”

But the appellate court on Oct. 28 effectively kicked the can down the road, granting, for now, Chen’s request to bifurcate the hearing into open and closed sessions, while reserving its right to reconsider at a later date (likely on the spot during the hearing, without adequate time for Herridge or any interested news outlets to prepare thorough objections).

That means journalists covering the hearing could be left holding their notebooks in an empty courtroom while the lawyers and judges retreat behind closed doors to hash out the future of the reporter’s privilege, in the jurisdiction where it’s arguably most needed. 

That is, unless the appellate judges see the light (or, more accurately, let the public see it) between now and the 18th. 

PRESS Act would solve this problem

Of course, Congress could moot all of this by passing the PRESS Act, the federal shield bill that would protect journalist-source confidentiality. 

Herridge is a major proponent of the bipartisan legislation, and her case underscores the holes in the arguments against it (which, we should note, are only advanced by a small minority of lawmakers — the bill has twice passed the House unanimously and has Senate sponsors from both parties). 

For one, Republicans who perceive the bill as a gift to the “liberal media” should rethink that assumption. Herridge’s investigative work is highly respected across partisan lines (Sen. Ted Cruz even filed a brief in support of her appeal) and the reporting at issue in the case comes from her tenure at Fox News. She’s not the first Fox reporter whose sources have been targeted.

That said, Fox News isn’t who needs the PRESS Act most — that would be independent journalists and small upstart outlets without armies of lawyers, many of which produce right-leaning content that counters the mainstream narratives conservatives disfavor. 

And Herridge’s case turns the unsubstantiated notion that a reporter’s privilege would undermine national security on its head. The government, for better or worse, has ample means to identify leakers without subpoenaing journalists, and the PRESS Act contains national security exceptions that should nullify any concerns about wild hypotheticals, like a journalist withholding information that could stop an imminent terrorist attack. 

While those national security fears are rooted in fantasy, here’s the reality: The absence of the PRESS Act may allow someone suspected of being in cahoots with China to pry into the U.S. intelligence community’s dealings with journalists (that’s assuming Chen’s Privacy Act theory that the government disclosed the investigation to Herridge is correct — we have no idea). 

By the way, if you’re an elected official concerned about Chinese surveillance, that seems like a significantly bigger problem than whether China can theoretically track where American teenagers perform their TikTok dances. And it’s a problem that can be solved by strengthening, not weakening, the First Amendment. 

It’s time to pass the PRESS Act so no future investigative journalists need to risk crippling fines or imprisonment to protect their sources. But until then, court proceedings that decide these critical issues for our democracy need to be conducted with full transparency. 

The last time Donald Trump won the presidency, we were alarmed by the prospect that he’d file frivolous defamation suits and insult journalists from the White House podium. Those fears almost seem quaint now — the lawsuits and verbal attacks haven’t ended, but there is so much more at stake in Trump’s second term.

Since his first term ended, Trump has repeatedly called for journalists to be imprisoned and raped for not revealing their sources. Just days ago, he publicly fantasized about a mass shooting of journalists at one of his rallies. He wants to sic federal agencies from the Federal Election Commission to the Federal Communications Commission to the Department of Justice on his perceived enemies, including reporters he doesn’t like.

In his second term, Trump will make good on these anti-press threats to try to destroy any news outlet, journalist, or whistleblower who criticizes or opposes him.

Trump will almost certainly repeal protections against federal surveillance of journalists, which were prompted by his spying on them last time around (to be fair, so did his predecessor). He may even take advantage of the opening created by the case he started and the Biden administration finished — the prosecution of WikiLeaks founder Julian Assange — to prosecute journalists directly for publishing classified information.

Republicans are already seeking to abuse anti-terrorism laws against media outlets that criticize Israel; it’s hard to imagine Trump reining them in. He’s certainly not going to lift a finger to protect Palestinian journalists from getting killed while reporting on the war. Who knows how he’ll respond if Russia or other authoritarian regimes he wants to be buddies with imprison more American journalists?

Just like his last term, Trump is likely to try to censor social media outlets and interfere with the editorial discretion of publishers. His campaign against free speech online will be even worse this time around, especially if he gives the world’s biggest free speech hypocrite, Elon Musk, a prominent role in his administration.

At the local level, Trump’s anti-press rhetoric has already emboldened everyone from governors to county-level politicians to retaliate against the media. With their leader back in the White House, Trump wannabes nationwide will feel even more empowered to harass the press — and they’ve spent Trump’s years in exile priming their base to tolerate it.

Suffice it to say, we’ve got some hard work ahead of us at Freedom of the Press Foundation (FPF). But we’ve been here before. During the first Trump term, we fought him every step of the way, from launching the U.S. Press Freedom Tracker, the first comprehensive database of press freedom violations in the United States, to expanding the availability of SecureDrop to enable whistleblowers to communicate securely with journalists. And we’re now better equipped than ever to hold Trump accountable.

We’ve got an expanded advocacy team to draw the attention of both the public and policymakers to press freedom issues, whether at the local or national level. We operate a coalition that fosters strong partnerships between press rights groups across the political spectrum. Our new Daniel Ellsberg Chair on Government Secrecy furthers our late co-founder’s legacy by leading the fight to fix the country’s overclassification problem — something that Trump, strangely enough, actually has reason to support.

When the law isn’t enough, our digital security team steps in to educate reporters about how they can protect themselves and their sources, and our open source software tools like SecureDrop and Dangerzone help whistleblowers and journalists collaborate, and expose malfeasance, safely and confidentially.

Whatever press freedom violations we can’t prevent, we document. The Tracker is relied on by journalists and rights organizations everywhere to spot concerning trends and measure the state of press freedom in the United States. Just look at its work in 2020, the last year we had a President Trump, documenting hundreds of attacks on press rights during the civil unrest that swept the nation that year.

We’re going to need your help as the demand for our work likely grows, in both foreseeable and unforeseeable ways. If you agree that a strong Fourth Estate is essential to preserve democracy and check abuses of power, from Trump or whoever’s next, please donate today.

FOR IMMEDIATE RELEASE:

Washington, D.C., Nov. 6, 2024—Donald Trump, an anti-press extremist obsessed with punishing journalists and news outlets who criticize him, has won the presidency of the United States.

The following statement can be attributed to Trevor Timm, executive director of Freedom of the Press Foundation (FPF):

Trump has spent the last year on the campaign trail calling for more leak investigations, imprisoning journalists, and censoring news outlets he doesn’t like. Lawmakers and President Biden must act before it’s too late.

The Senate should immediately pass, and President Biden should sign, the bipartisan PRESS Act to stop Trump from spying on journalists, as he repeatedly did in his first term, and from throwing them in jail for refusing to reveal their sources, as he has threatened in the most disgusting terms.

Congress must make good on promises to fix dangerous and sloppily drafted mass surveillance legislation passed earlier this year that gives the U.S. government extraordinary power to spy on its own citizens.

And lawmakers must take a vocal stand against abusing anti-terrorism laws to punish free speech. It’s imperative the White House reverses its spineless position on Israel's unprecedented attacks on press freedom and pressure its ally to stop using U.S. weapons to kill journalists.

For more information on how the second Trump administration will increase government secrecy and attack journalists, how Trump tried to destroy press freedom in his first term, and the latest updates as they happen, visit FPF’s website and the U.S. Press Freedom Tracker.

Please contact us if you would like further comment.

The election of President Donald Trump to a second term, particularly now that the Supreme Court has granted the president broad immunity for “official acts,” puts us in uncharted territory.

In terms of corrosive government secrecy, however, there are a few things that President Joe Biden, journalists and the public, and members of Congress can act on right away.

What Biden must do

Biden should work quickly to amend the executive order on classified national security information, which currently dates to the Obama administration.

The order states that “in no case shall information be classified … in order to conceal violations of law.”

The wording is misleading.

The order does not actually preclude agencies from classifying — and therefore hiding — information that documents violation of law. As government secrecy expert Steve Aftergood pointed out four years ago, it only bars agencies from classifying records with the specific intent of concealing the violation.

Agencies can still classify records showing they broke the law, and their ability to do so is backed by the courts, thanks to a 2008 ruling against the ACLU by District Judge Royce C. Lamberth in the U.S. Court of Appeals for the D.C. Circuit.

The most effective and expedient way for Biden to meaningfully strengthen the executive order would be to specifically state that violations of law may not be classified at all. This change may prove to be a particularly important change in the wake of the SCOTUS immunity ruling.

Of course, it is possible that Trump could immediately rescind the order, but given its importance and convoluted subject matter, it would be unlikely his national security team would do so without having a replacement ready.

Trump also demonstrated no interest in replacing the Obama-era order during his first term. This doesn't mean he won't show more of an interest during his second term, but neither is it a given that he will, or that if he does, he would do it quickly.

In the interim, we must strengthen the tools that we have and Biden should close this loophole immediately.

What journalists and the public can do

Datasets disappeared from federal agency websites at an alarming speed at the beginning of Trump's first term. Within the first few months of his presidency alone, a staggering 39,245 datasets were removed from data.gov, which is intended to provide public access to important datasets created by the government.

The disappearance of TOXMAP is a distressing example of what may come. It was the National Library of Medicine’s mapping tool that served “as an integrated system of toxicology and environmental health information,” and that was dismantled during the first Trump administration as part of a “larger pattern of decreasing transparency of environmental data during the Trump era.”

Another warning comes from Mick Mulvaney, who, while serving as the acting director of the Consumer Financial Protection Bureau, tried to take down the bureau’s consumer complaint database. Luckily, he was ultimately unsuccessful and the database is still online — for now.

Public records were also taken down, including the White House visitor logs and press briefings from regulatory agency websites, like the Occupational Safety and Health Administration.

Journalists and the public must assume Trump will do the same in his second term, and should immediately download and save records on websites of agencies that will likely be targets for the administration. These agencies include the Environmental Protection Agency, the Food and Drug Administration, the National Oceanic and Atmospheric Administration, the Census Bureau, and the Centers for Disease Control and Prevention.

In addition to existing datasets, documents that should be proactively preserved include policy guidance, press briefings, final opinions, datasets, organizational charts, and any available information on the agency’s major information systems. For example, NOAA’s Institutional Repository is a major information system containing important NOAA records dating back to 1970.

Assume information systems like this will go offline and proactively preserve them.

What members of Congress can do

The first Trump administration banned agencies from responding to congressional requests for information when those requests did not come from full committees or subcommittees. This stalled legitimate oversight being conducted by the minority.

There’s no reason to think agencies will behave differently during a second Trump administration.

Members of Congress should use some of the remainder of the term to educate themselves and their staff on:

• the rights of individual members to request information directly from agencies, even if that request does not come from the committee chair
• how to counter agencies’ objections to providing information

Congress must also immediately pass, and Biden must sign, the PRESS Act. As Trevor Timm, executive director of Freedom of the Press Foundation (FPF), clearly states: “Trump has spent the last year on the campaign trail calling for more leak investigations, imprisoning journalists, and censoring news outlets he doesn’t like. Lawmakers and President Biden must act before it’s too late.”

Journalism is supposed to interfere with elections. Donald Trump once agreed. He was outraged when the media didn’t jump on the Hunter Biden laptop story that some think could have swung the 2020 election, and overjoyed that headlines about the FBI’s investigation into Hillary Clinton’s emails might have swung the 2016 one.

But now, he’s taken a break from fantasizing about mass shootings of journalists to theorize that reporting he perceives as unfair constitutes illegal “election interference.” He’s filed complaints against CBS News, claiming “60 Minutes” cleaned up a “word salad” answer by Vice President Kamala Harris to a question about the Israel-Gaza war. He’s also filed a complaint with the Federal Election Commission, characterizing the Washington Post’s coverage as an in-kind contribution to the Harris campaign.

Both cases are frivolous, but the CBS one is particularly concerning because two of Trump’s appointees to the Federal Communications Commission — Brendan Carr and Nathan Simington — are normalizing it (for the record, while news broadcasters are not barred from election interference, FCC commissioners are). This heightens fears over how a second Trump FCC could abuse its power.

Editorial judgment is for editors

We didn’t need “60 Minutes” to tell us that Harris’ position on the war — saddened by civilian casualties but noncommittal on doing anything about them — is incoherent, as is President Joe Biden’s (Trump’s position is clearer: He’ll proudly bankroll war crimes, minus the platitudes). It’s also true that CBS’ refusal to post a transcript or full video of the Harris interview online is odd — why not be transparent?

But, under the First Amendment, none of that is the FCC’s business — if CBS viewers don’t like the network’s coverage, they can change the channel, and if politicians think it’s unfair, they can take their case to the public.

It was the Reagan administration, not “woke” liberals, that repealed the unconstitutional “Fairness Doctrine.” That doctrine is even more ill-suited for today’s media landscape — with all of the outlets from which people get political news these days, the case for policing the public airwaves due to “scarcity” is even less compelling than it was decades ago.

Absent the Fairness Doctrine, Trump and his allies are citing the FCC’s “news distortion policy.” But as the agency’s own description of that policy acknowledges, “The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press,” including “a broadcaster's selection and presentation of news or commentary.”

The FCC has stated it will only intervene when there is strong evidence of “intentional falsification.” Carr himself gave the example of splicing different answers to change a “yes” to a “no.” Editing a rambling answer can hardly be called “intentional falsification.” In both versions, Harris claimed the Biden administration has, or will, do something or other to rein Israel in and end the war, without specifying what. Her substantive position (or lack thereof) came through loud and clear.

That being said, it’s not hard to imagine the distortion policy, and other exploitable ambiguities in the commission’s authority, being weaponized by a politicized FCC (same for the FEC, for that matter, although thankfully no FEC commissioner has credited the absurd notion that favorable coverage is a campaign contribution).

If so, the backstop will be the same courts that lately often carry Trump’s water. That’s not particularly comforting. On the bright side, one of the right’s proudest recent judicial achievements -– the abolishment of the “Chevron deference,” which required courts to defer to administrative agencies — could, ironically, make it easier for judges to check an out-of-control Trump FCC.

All censorship is local

Calls for the FCC to overstep have not only come from the MAGA universe. In 2020, the FCC rejected a petition to apply its “hoax” rule against networks that aired Trump’s false statements about COVID-19. The commission said it “will not second-guess broadcasters. … We leave to the press its time-honored and constitutionally protected role in testing the claims made by our political leaders.”

And a former Democratic FCC commissioner joined efforts to revoke a broadcast license of a local Fox affiliate to punish Fox News for broadcasting Trump’s lies about the 2020 election. Trump has called for revocation of broadcast licenses associated with every major network, drawing condemnation from FCC Chair Jessica Rosenworcel. Trump’s supporters already cite his opponents’ revocation demands to legitimize his own.

And the impact of Trump’s unconstitutional antics has trickled down to the local level. Florida Gov. Ron DeSantis threatened to prosecute broadcasters for airing abortion rights ads. A political candidate in Ohio sued a newspaper for allegedly being less critical of his opponent than him. Expect more of that if supposed experts like Carr and Simington keep bolstering Trump’s nonsense.

Regardless of the election outcome, lawmakers and the FCC should do everything in their power to safeguard the agency from politicization and remove any wiggle room that could be abused, whether it’s the distortion rule, the hoax rule, or any others. This should have happened long ago — it’s not as if there weren’t enough warning signs. But better late than never.

Donald Trump’s $10 billion lawsuit against CBS over a “60 Minutes” interview of Vice President Kamala Harris has been called “ridiculous junk”, “a frivolous election stunt” and “difficult to take seriously.” That’s all true, but here’s something else it could be called: trendy.

Trump — whose “claim” against CBS is based on the Texas Deceptive Trade Practices Act — is just the latest in a long line of conservatives attempting to shut down free speech using consumer and business protection laws. With Trump’s lawsuit, what started as a campaign against social media companies has now morphed into a direct assault on the free press. 

Conservative AGs ‘protect’ consumers from online free speech 

Every state and the federal government has consumer protection laws, intended to prohibit things like misleading ads or bait-and-switch sales tactics. Legal theories providing remedies for wrongful interference with commercial relationships are also meant to target unfair business dealings. 

Ironically — given that they often oppose consumer protection laws when used for their intended purpose — conservatives have now seized on them to attack editorial decisions with which they disagree and to chip away at the First Amendment. 

The patron saint of the conservative movement to transform consumer and business protection law into an anti-speech cudgel is Texas Attorney General Ken Paxton, who’s brought numerous investigations or lawsuits against his political enemies under the Texas DTPA. Several of these actions specifically target speech that Paxton dislikes.

For instance, Paxton has frequently used the DTPA to target social media companies for their own speech and content moderation decisions, which the Supreme Court has now said are exercises of editorial judgment protected by the First Amendment.

Paxton sued Yelp (unsuccessfully) under the DTPA because he disagreed with its decision to label crisis pregnancy centers to accurately note that they “typically provide limited medical services and may not have licensed medical professionals onsite.” He also launched DTPA investigations into several tech companies after they blocked Trump’s social media accounts or the conservative app Parler.  

But Paxton hasn’t limited his crusade to “protect” consumers from free speech to just social media. He also opened a DTPA investigation into Media Matters, a nonprofit journalism watchdog, after it published a research report showing that social platform and conservative darling X had placed ads for major brands next to antisemitic posts. 

On the very same day, Elon Musk sued Media Matters over the same report, alleging a variety of claims based on protections for business dealings. Weeks later, Missouri Attorney General Andrew Bailey launched his own investigation into Media Matters, under that state’s consumer protection laws. 

Consumer protection laws being used directly against news media

When Media Matters began to face the onslaught of investigations and lawsuits under consumer protection laws for its exercise of free speech, its president warned that mainstream news outlets would be next. So did we. 

Now, here we are. Trump, having learned from the tactics used by Paxton, Musk, and Bailey, is using consumer protection law to sue CBS for allegedly “misleading” the public by editing its interview with Harris.

The “60 Minutes” interview with Harris has nothing to do with commercial speech, which is the whole point of consumer protection laws. Its decisions about how to edit an interview and what to broadcast are clearly protected by the First Amendment. That’s why the First Amendment experts are right when they say Trump’s lawsuit is frivolous and ridiculous.

But winning clearly isn’t the point. Even if Trump loses, he will still have generated headlines about “60 Minutes” “misleading” the public. Trump — a well-known libel bully —will also have learned a new way to punish his critics by forcing them to spend money to defend themselves against his frivolous consumer protection claims. 

The greatest risk of Trump’s lawsuit isn’t to CBS. It’s to the future news outlets that will face an onslaught of frivolous investigations or lawsuits for supposedly violating consumer protection laws by Trump or other politicians who adopt this tactic going forward.

After all, CBS may be able to afford to defend itself against Trump, but most cash-strapped local news outlets couldn’t, especially if state attorneys general pile on with their own investigations or lawsuits. Trump and other conservatives know that, and they’re counting on the costs of these kinds of investigations and lawsuits to force news outlets to lay off staff or even stop publishing. 

Plus, even if Trump and others lose these kinds of cases in the short term, they may find more success in the future.  What begins as a fringe legal theory sometimes moves into the mainstream, especially if plaintiffs forum shop to find sympathetic judges. 

We can’t let that happen. Courts should reject any attempt to use consumer protection laws as a First Amendment loophole. State lawmakers must watch this trend closely and be ready to change consumer protection laws to explicitly protect journalism and free speech if necessary. 

News outlets’ editorial decisions aren’t above criticism. People calling on networks to release full transcripts of interviews online have a fair point — but not a legal claim. Politicians can take advantage of their own free speech rights, rather than weakening those of others, by taking their case to the public, not the courts. 

Tech journalist Lorenzo Franceschi-Bicchierai received an anonymous tip in 2017 through SecureDrop, a whistleblower submission system and project of Freedom of the Press Foundation (FPF).

The source revealed via the encrypted platform that they had hacked a software provider called “Retina-X” and proved the company was “storing very sensitive information in a very insecure way.” The findings helped Franceschi-Bicchierai, now a senior writer at TechCrunch, to break the tech reporting website Motherboard’s “first big investigation on stalkerware,” he said.

He credits SecureDrop’s encrypted anonymous file sharing, saying that without it, “perhaps we would have never gotten that story.”

He shared this anecdote at FPF’s Global Encryption Day discussion on social platform X, held on Oct. 22, 2024, to raise awareness about encryption and explain why it should be a part of every journalist’s toolkit.

Encryption, in a nutshell, is a method of protecting data like computer files or messages in such a way that they cannot be “modified or viewed unless someone has the key to open them,” Harlo Holmes, director of digital security at FPF, explained during the X Space. End-to-end encryption takes things a step further by ensuring that only the devices that are part of a conversation can decrypt and see the information.

While not every tip leads to a revelation, encryption makes the job of gathering information and protecting sources much easier for journalists. For those who haven’t adopted encrypted practices, the time to start is now, panelists agreed.

“Encryption used to be so hard,” said Julia Angwin, The Markup and Proof News founder and New York Times contributing opinion writer. “In 2012, you had to have your public key. And there were these key exchange places where you would look up other people’s keys.”

Now, with the advent of messaging apps like Signal and WhatsApp, she said, “It’s gotten so easy.”

But not all encrypted platforms are created equal, according to Holmes. Platforms like SecureDrop and OnionShare offer more protection, though they can be a heavier lift for smaller newsrooms or independent journalists to get and maintain.

Conversely, WhatsApp and Facebook Messenger — which both offer end-to-end encryption — are easier to use but log more metadata that can be leveraged through a subpoena or by law enforcement if a journalist’s device is seized.

“This is why it’s really important for potential sources to find a journalist that they trust not only to tell their story but also that they trust to be as mindful about their communication with them as possible.”

“This is why it’s really important for potential sources to find a journalist that they trust not only to tell their story but also that they trust to be as mindful about their communication with them as possible,” Holmes said.

Communication, however, is only one way encryption can be used. It can also be a powerful tool for securing information on hard drives or phones to protect sensitive documents from unwanted intrusion.

One real-world example is at a border crossing, Angwin said, where the Fourth Amendment — which protects against unreasonable searches and seizures — doesn’t apply to the same degree as elsewhere.

“The best advice is to not bring your devices, but that is not really realistic,” she said. “A couple different things that I have tried is encrypting the hard drive and having it with a passcode. … Also, Signal has a little thing where you can delete (the app) off your phone really quickly if you need to. There’s kind of like an emergency button.”

“The best thing you can do is store as little as you can,” added Franceschi-Bicchierai. But nearly all journalism requires the storage of data somewhere, which is why compartmentalizing where your data is stored, and what on what platforms, can be crucial to protecting yourself and your sources.

“It’s best to spread the risk,” Angwin said.

There will always be risks, however, as threats to encryption develop outside the control of journalists. Holmes warned in particular about “backdoors,” which are created within platforms to bypass their security protocols.

One of the worst backdoor examples surrounds the use of a pen register, a legally obtainable way to trace outgoing communications from phones or computers. The process that ensures compliance within these platforms, however, has been used by hackers to surveil people thanks to backdoors baked into the systems.

Governments can also establish backdoors legislatively, under the guise of “moderation,” to access information that should remain confidential — which Angwin likens to George Orwell’s “1984.”

“Nobody wants to live in a world where every single piece of content that you share with your family, just a text message, is scanned by some third party trying to determine if you’re doing something bad,” she said. “It is sort of shocking to me that it continues to gain interest across the world and that there are people fighting these proposals in every country right now.”

But for all the fearmongering from law enforcement and governments around the world, “The good news is that encryption is here to stay and it is normalized,” Franceschi-Bicchierai said. “Life has become easier for journalists and sources.”

If you are looking to learn more about encryption and how to implement it into your workflow, FPF offers a toolkit for media-makers. We also conduct digital security training and offer related resources to journalists around the world.

Dear Friend of Press Freedom,

Here are some of the most important stories we’re following from the U.S. and around the world. If you enjoy reading this newsletter, please forward it to friends and family. If someone has forwarded you this newsletter, please subscribe here.

Government secrecy and the presidential election

How secretive would a second Trump or a Harris administration be? And how much could either presidential candidate rein in the government’s sprawling secrecy system if they wanted to?

The answers to these important questions will impact every American, because excessive secrecy undercuts the promise of a free press, effective oversight, and the public’s ability to self-govern.

Lauren Harper, Daniel Ellsberg Chair on Government Secrecy at Freedom of the Press Foundation (FPF), analyzed past stances of Donald Trump and Kamala Harris on key transparency issues, including access to presidential records, agency compliance with congressional oversight requests, and press freedom issues, to get a sense of what may come. She also highlighted key secrecy issues that will need to be addressed regardless of who wins the election. Read her three-part series on our newly redesigned website.

Drop charges against Indian Time journalist

Journalist Isaac White, who writes for Indian Time in northern New York, was arrested in May while reporting on a land claim demonstration. He’s not accused of doing anything other than his job, but prosecutors are pursuing criminal charges against him, along with several protesters, for allegedly not following orders to disperse.

Here’s the problem: The U.S. Department of Justice has repeatedly said — most recently this month — that under the First Amendment, police dispersing protesters can’t also disperse journalists covering the protests, because how police respond to protests is news.

We led a letter, signed by over 20 rights organizations, to St. Lawrence County District Attorney Gary Pasqua alerting him to the DOJ’s position and urging him to do the right (and the constitutional) thing and drop the case. Read it here.

US must stop enabling Israel’s attacks on the press

“I am sorry, I have to leave (the conversation). Several of my colleagues are injured in Jabalia, and I have to cover the events.” That’s the direct message FPF Deputy Director of Audience Ahmed Zidan received via X from Palestinian journalist Mohammed Mhawish during a live discussion last month about Israel’s multipronged war on press freedom.

The Israel-Gaza war is the deadliest for journalists in the past four decades or more. Well over 100 journalists and media workers have been killed by Israel since October 2023. Beyond the numbers, there are stories of unimaginable human suffering: devastation, displacement, permanent disability, and loss of loved ones, friends, and colleagues. For those lucky enough to survive, the psychological trauma lingers.

Read Zidan’s article reflecting on the conversation and calling, once again, for the U.S. to stop funding and arming a military that refuses to stop killing journalists.

Keeping your data safe when reporting from the field

The 2024 U.S. presidential election has already been a magnet for protests, and covering any kind of protest is high risk for journalists. The U.S. Press Freedom Tracker covered demonstrations in advance of the presidential debate in September and during the Democratic National Convention in August, at which journalists were arrested and, in some cases, had their equipment confiscated or damaged.

David Huerta, Martin Shelton, and Davis Erin Anderson of the Digital Security Team at FPF sat down with FPF Senior Adviser Caitlin Vogus to discuss journalists’ constitutional rights in the event of device seizure, and what they can do now to plan ahead for reporting from the field. You can read the conversation here.

What we’re reading

Tech exec sues S.F. journalist for $25M for publishing his sealed arrest report (San Francisco Chronicle). What’s even worse than the lawsuit is that the San Francisco City Attorney’s Office sent the journalist a letter demanding he take down the government record. As we told the Chronicle, “Journalists are entitled to publish documents that they lawfully obtained, specifically government documents.”

NBC asks judge to exempt Trump immunity hearings from camera ban (Bloomberg Law). The entire country should be able to watch hearings on Trump’s claimed immunity, not just those who can fit into a Washington courtroom. It’s ridiculous that the media even has to ask permission for cameras in a case this important.

How the U.S. military lost a $250 million war game in minutes (The Washington Post). The Post’s Nate Jones shouldn't have had to wait 11 years for the Department of Defense to release a report showing that, in 2002, the U.S. military took less than 10 minutes to lose a $250 million war game that was "in many ways ... a rehearsal" for the Iraq War.

America’s top archivist puts a rosy spin on U.S. history — pruning the thorny parts (The Wall Street Journal). This is disappointing if true. The U.S. National Archives needs a vocal advocate for preservation of records, not someone who wants to censor history to keep partisan fights at bay and the agency under the radar.

Palestinian-owned cafe where I spoke was attacked (The Dissenter). Days after hosting a discussion on press freedom organized by Defending Rights & Dissent, in which FPF was honored to participate, Chicago’s Nabala cafe was attacked for the second time in weeks. Fortunately, the community came through to fund the needed repairs. Read more about the conversation here.

Come see us in Washington or London

The Double Exposure Festival & Symposium, Nov. 7-10 in Washington, D.C., will have panels, workshops, and master classes focused on investigative storytelling. Don’t miss our Director of Advocacy Seth Stern, who will discuss dangerous government efforts to limit who is a journalist — such as by excluding documentary filmmakers. Purchase your tickets or passes here.

Or come see us in London, where we’re co-hosting Source! the London Logan Symposium with The Centre for Investigative Journalism Nov. 14-15. Hear from journalists from all over the world about press freedom issues and the challenges they face in protecting themselves and their sources. Register to attend here.

America’s classification system dates to the Cold War. And today, the government’s sprawling bureaucracy perpetuates a culture of excessive secrecy that has flourished under both Democratic and Republican administrations.

The following are the systemic problems that will need fixing regardless of who wins the election:

Rampant overclassification

As Freedom of the Press Foundation (FPF) has noted, the government classifies too many secrets, and most shouldn’t be secret in the first place.

We don’t know how many documents are classified, and we also don’t know how expensive it is to keep them secret. Educated guesses say between 75% and 90% of information is classified when it shouldn’t be, and to the tune of $18 billion a year (although this is a conservative estimate, relying heavily on costs associated with the government’s 4 million active security clearances).

A large part of the problem is that classification decisions are subjective.

Different agencies make different classification decisions about the same documents. Sometimes the same agency can’t settle on a classification decision. The State Department once released four different versions of the same document, with different redactions each time. In another example, the same reviewer made different determinations about the same document mere days apart.

If we do not clearly and narrowly define what information may be classified, we will see an increasingly unmanageable number of unwarranted classification decisions.

Espionage Act reform

The ambiguous, outdated language of the Espionage Act (it was passed soon after World War I started) must be reformed to prevent the targeting of journalists and their sources.

Recent amendments proposed by Rep. Rashida Tlaib show how the law can be reformed to allow the prosecution of true espionage cases while protecting the rights of journalists and the public, which benefits from the national security-related reporting.

Secret law

The Department of Justice’s Office of Legal Counsel has authored an unknown number of secret legal opinions, which have profound implications across the executive branch — on everything from immigration to the limits of presidential authority.

Members of Congress and the public have asked for these opinions to be made public to no avail.

OLC should publish a list of all its classified legal opinions. If it refuses, Congress should reconsider how much it appropriates to the DOJ.

Secret Intelligence Community budget

Intelligence agencies do not have to disclose their individual or program-level budgets, so agencies like the CIA can hide how much they spend on constitutionally questionable programs.

The only public intelligence budget is an aggregate budget for the 17 agencies that comprise the intelligence community — and it totals nearly $100 billion. This, combined with the practice of secretly transferring appropriations from nonintelligence agencies to intelligence agencies, gives intelligence agencies a blank check without any serious oversight.

Every member of the intelligence community should be required to disclose its total budget. Claims that damage to national security would result are false; some of these figures were leaked by Edward Snowden in 2013, with no resulting damage.

FOIA improvements

FOIA backlogs grow every year, regardless of congressional scrutiny and presidential instructions to reduce the backlogs.

This is partly caused by an exponential growth in the number of electronic records that agencies still primarily review manually.

Agencies need to post more records proactively, and they must be allocated the funds to develop artificial intelligence and other technologies that will help release information. This needs to be done with public input to ensure that AI programs are not simply being trained how to most efficiently deny information.

More and better resources will help, as would ensuring that FOIA offices have a dedicated budget. But money alone won’t ensure transparency.

The DOJ should conduct a litigation review of all pending FOIA cases to ensure each reflects the department's most updated guidance. This would demonstrate to agencies that the DOJ won't blindly defend bad agency FOIA positions in court.

This, combined with disciplinary actions against officials who regularly and inappropriately withhold information, would help address knee-jerk secrecy in FOIA offices and beyond.

Fund the National Archives

The National Archives and Records Administration is responsible for running the National Declassification Center, overseeing the government’s compliance with classification rules, and ensuring agencies are appropriately preserving records.

It is also woefully underfunded. Its budget needs to be doubled, with a special focus on ensuring NARA has the resources to appropriately preserve a wide variety of electronic records.

Systematic declassification programs

Systemic reform takes time, but this shouldn’t prevent the government from immediately being more transparent about the most existential threats we face.

The government should build upon past success of targeted, declassification projects from across the government (including a recent effort that reviewed 47,000 pages on human rights violations in Argentina) and establish new declassification projects on climate change and nuclear weapons.

This multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.

The first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?

How secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.

It’s likely Democratic presidential candidate Kamala Harris would be less secretive than her Republican rival, former President Donald Trump, but that is an almost nonexistent threshold.

While a Harris administration would likely be more transparent than a second Trump administration, maintaining transparency norms like publishing the White House visitor logs and releasing her tax returns, there are areas for concern, especially for whistleblowers.

Harris has not spoken explicitly about secrecy issues as vice president, but her time on the Senate Intelligence Committee provides insights on ways she could shape secrecy in the United States:

Espionage Act

Harris’ current position on persecuting journalists under the Espionage Act is not known.

In 2019, Harris didn’t clearly state if she thought it was constitutional to charge Julian Assange under the act. Instead she hedged, saying that if elected president, “The Justice Department should make independent decisions about prosecutions based on facts and the law. I would restore an independent DOJ and would not dictate or direct prosecutions.”

The silence on necessary reforms is remarkable considering that as vice president-elect (but still a senator), Harris herself could have been punished under the Espionage Act if she revealed classified information to President Joe Biden after he won the 2020 presidential election but before he received his security clearance. (The lack of reform is doubly remarkable considering that Biden may have broken the law for mishandling information the government purported to be classified.)

Press freedoms

As vice president, Harris has made few, if any, specific remarks on press freedoms beyond a social media post on World Press Freedom Day in 2021. She sat for limited interviews during her presidential campaign and hasn’t voiced her stance on the PRESS Act, a federal shield law protecting journalists and their confidential sources.

In 2019, as senator, Harris joined Sens. Elizabeth Warren and Richard Blumenthal, and then-Sen. Tom Udall in demanding the Department of Homeland Security stop Customs and Border Protection’s unconstitutional surveillance of journalists along the Southwest U.S. border.

In 2018, she condemned the shooting at the Capital Gazette in Annapolis, Maryland, stating, “Journalists play such a critical role in our democracy and too often face risk at home and abroad.”

Whistleblower protections

Several Senate Intelligence Committee hearings point to her support for whistleblower protections, including their right to share complaints with Congress. She also pressed agencies like the CIA to ensure they do not retaliate against whistleblowers.

However, during a 2018 Senate hearing, she alluded to the “damage” caused by “insider threats” at the National Security Agency, a clear reference to Edward Snowden, an important whistleblower regardless of his status under the Whistleblower Protection Act.

This demonstrates a concerning potential preference for whistleblowers only if they work within the government’s system, even though Harris knows it is a system rife with abuse.

Executive orders

Neither Biden nor Trump authored a new executive order on classified national security information, leaving the executive order signed by President Barack Obama, EO 13526, intact.

It’s possible a Harris administration would revive efforts to author a new EO. If it does, the Harris administration should both consult rights organizations and look at a recent Senate bill on classification that includes good ideas on how to reduce overclassification.

Surveillance and Section 702

The Biden administration expanded government surveillance under Section 702 of the Foreign Intelligence Surveillance Act, a program that “incidentally” collects millions of Americans’ data, including that of journalists.

Harris was vocally in favor of surveillance reform and skeptical of the FBI’s authority to conduct warrantless searches under FISA when she served in the Senate. She also questioned what legal basis the intelligence community has for refusing to provide an estimate of the number of Americans who have been caught up in Section 702 surveillance. But she hasn’t commented on the campaign trail on intelligence agencies’ continuing failure to provide such an estimate.

Congressional oversight

Harris was stymied by agencies’ refusal to provide information to Congress under the Trump administration, going so far as to submit a Freedom of Information Act request to the Justice Department for information on Ukraine. She’s gone on the record stating executive privilege should not prevent “public scrutiny and oversight” of agency deliberations, noting Congress’ constitutional authority to access agency information.

Intelligence community secrecy and classification reform

One of Harris’ most memorable moments in the Senate came during Gina Haspel’s confirmation hearing to lead the CIA. Harris, who voted no on Haspel’s nomination, asked Haspel if she would recuse herself from declassification decisions about her own record, citing an obvious conflict of interest over her torture records. Harris suggested that the director of national intelligence would be the more appropriate declassification authority if a conflict of interest arose.

Harris did not attend a 2019 hearing on potential reforms to the declassification process, so her stance on specific reforms to the outdated classification system is not known.

This multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.

The first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?

Secrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?

Former President Donald Trump’s first term flouted transparency norms, preservation laws, and attempts at congressional oversight.

Here are some important areas where a second Trump administration could continue this trend:

Press protections

Trump has said journalists should go to jail for protecting their sources, made vulgar suggestions about what would happen to them there, belittled journalists — female journalists in particular — and threatened to strip the networks he doesn’t like of their broadcasting licenses.

His administration also pursued eight Espionage Act cases, as many as President Obama but in half the time.

A second Trump administration could be more aggressive, overturning press protections, and further empowering counterintelligence agencies to persecute journalists. This makes it imperative that the Senate pass the PRESS Act and protect journalists’ freedoms and source confidentiality.

Executive orders

Trump did not author an executive order on classified national security information, and the current order outlining what can be classified and how classified information is handled, 13526, dates to the Obama administration.

But the legal battles surrounding Trump’s mishandling of classified information may encourage him to draft an EO that would grant him more expansive authority on classification issues during a second term.

While it’s unlikely a new EO would establish a president's ability to declassify documents just by “thinking about it,” as Trump claimed he did, one area where a new EO could try to carve out more presidential authority is nuclear weapons. Nuclear information is declassified differently than other government information, and the rules are mandated by the Atomic Energy Act. A new EO claiming more authority over nuclear information could face legal challenges, but it’s not outside the realm of possibility.

Presidential records

Whether ripping up records, not preserving calls with foreign leaders, using disappearing messaging apps, or refusing to transfer ownership of presidential records to the government at the end of his administration as required by law, Trump showed a consistent disregard for the Presidential Records Act.

None of the legal actions against Trump since he left office have attempted to enforce compliance with the PRA. A second Trump administration may exploit the ongoing lack of enforcement by more recklessly destroying presidential records.

Agency records

Federal agencies are required to preserve their records in accordance with the Federal Records Act and to provide public access to those records under the Freedom of Information Act.

During his first term, Trump undermined these complimentary laws by appointing agency heads who discouraged federal officials from creating records in the first place or from communicating with the public and Congress, who ordered agencies to stop posting press releases, and who explicitly sought ways to avoid compliance with FOIA.

There are no indications a second Trump term would be more compliant with either the FRA or FOIA.

Agency secrecy

In 2020, the Trump administration approved Customs and Border Protection’s request to be labeled a “security agency.” This designation makes it even more difficult for the public to access CBP’s records. If more agencies apply for this designation under a second Trump administration, there’s little reason to believe they would be denied.

At the same time, Trump could renew efforts to undermine the FBI and the intelligence community. Some of the accusations made by Trump against law enforcement and intelligence agencies may be baseless, but other complaints may touch on legitimate problems. The most effective way for agencies to defend themselves from baseless attacks would be to show their work and be more transparent.

Congressional requests and inspectors general

The Trump administration often failed to comply with congressional oversight requests, especially if those requests did not come from a committee chair. A second Trump administration could continue this trend, preventing lawmakers from accessing information they are constitutionally entitled to. If so, congressional committees may be forced to sue federal agencies for information, although individual members would face significant legal challenges when filing suit.

The first Trump administration also failed to staff key oversight and civil liberties boards and undermined the effectiveness of inspectors general across the government by either replacing them (IGs are nonpartisan and usually have open-ended appointments), firing them, or leaving those positions vacant. A second term may see a similar attack on agency oversight mechanisms.

Transparency norms

Trump didn’t follow transparency norms like publishing his tax returns, providing access to the White House visitor logs, or hosting regular press briefings during his first term, and there is no reason to think he would change during his second.

There is already too much room for excessive executive secrecy, and the Supreme Court’s ruling granting presidents broad immunity for their “official acts” all but ensures a second Trump administration would be more secretive than the first — with little, if any, fear of accountability.

This multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.

How secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.

Secrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?

How secretive would a second Trump or a Harris administration be? And how much could either presidential candidate rein in the government’s sprawling secrecy system if they wanted to?

The answers to these important questions will impact every American, because excessive secrecy undercuts the promise of a free press, effective oversight, and the public’s ability to self govern.

I’ve analyzed past stances of Donald Trump and Kamala Harris on key transparency issues, including access to presidential records, agency compliance with congressional oversight requests, and press freedom issues, to get a sense of what may come.

I’ve also surveyed the ways successive presidents have failed to rein in needless secrecy. From agencies routinely ignoring presidential instructions to be more transparent, to convincing multiple administrations that their records (and their budgets) are too sensitive to see the light of day, I’ve highlighted the key secrecy issues that will need to be addressed regardless of who wins the election.

The first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?

How secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.

Secrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?