Freedom of the Press

An aerial view of downtown Phoenix features the Arizona State Capitol and the House and Senate buildings on either side.

A misguided Arizona bill would make it illegal to take photos or video of the police in certain circumstances, running directly against long-established constitutional protections for such recordings. Freedom of the Press Foundation has joined a coalition of two dozen media and press freedom groups opposing the proposal in a letter embedded below.

The house version of the bill, HB 2319, passed through the legislature's Appropriations Committee on Tuesday and through the full House on Thursday, despite its straightforward First Amendment problems. The House vote came down on party lines, with the body's Republican majority giving approval.

The original proposal would have rendered illegal recordings of police made without permission within 15 feet of an officer; as passed in the House, the limit is eight feet. Either limit is likely unconstitutional, as we explain in the letter:

We are extremely concerned that this language violates not only the free speech and press clauses of the First Amendment, but also runs counter to the “clearly established right” to photograph and record police officers performing their official duties in a public place, cited by all the odd-numbered U.S. Circuit Courts of Appeal including the Ninth Circuit. ... It is clear from well-established jurisprudence regarding this matter that officers performing their official duties in a public place do not have any reasonable expectation of privacy when it comes to being recorded and therefore taking enforcement action against someone who “fails to comply with a verbal warning of a violation of this section” is both impermissible and unconstitutional.

Nevertheless, the proposal now proceeds to the state Senate. We urge the lawmakers in that body to treat the Constitution and its press freedom guarantees with more respect than their colleagues in the House.

The case Sarah Palin lost against The New York Times this week was the first libel claim to even go to trial against the paper in nearly two decades. One might imagine these trials could be a lot more common: after all, the Times publishes constantly and there is no shortage of public figures who love to air complaints about critical reporting.

Some of those complaints even make it into legal claims. The Times was sued for libel in the United States 10 times between 2011 and 2017, for example, though none of those cases went to trial. That actual “close calls” are so rare reflects a critically important precedent in American law — one established by the Times itself.

That precedent, New York Times v. Sullivan, is a cornerstone of American press freedom, a unanimous 1964 Supreme Court decision that recognized the censorious possibility of libel litigation and adopted an appropriately high standard. Thanks to Sullivan, public figures need to show that publishers acted with “actual malice” to win a libel case. In legal terms, the actual malice standard means that the publishers must know the information they’re publishing is false, or act with reckless disregard of whether it’s true or false.

This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.

In Sullivan, Montgomery police had sued the Times over an ad placed by Martin Luther King Jr. supporters that described how civil rights activists had been treated during protests in Alabama. The Supreme Court recognized, however, that the same silencing tactics could be used in all sorts of cases. As one justice wrote: “This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.”

In Palin’s case, the Times and its supporters have always conceded that there was a factual error in the editorial in question, and ran a correction the day after its initial publication. Five years into the former governor’s litigation over the issue, the judge announced he would rule for the paper as a matter of law, and the jury ruled for the paper based on the specific facts. Palin, the 2008 Republican nominee for vice president, is very clearly a public figure, and her legal team simply could not show that the newspaper or its editors acted with actual malice towards her.

That high bar has been a critical press freedom protection for decades, and its value may be clearer now than ever. But it has come under unprecedented threat. Politicians — up to the former president of the United States — unhappy with the scrutiny of an independent press, have called for libel laws to be “opened up.” Two Supreme Court justices have suggested the Sullivan standard be revisited.

We’ve also witnessed litigants, bankrolled by billionaires, bringing ruinous suits against media outlets — such as the Florida case that bankrupted Gawker Media in 2016. In the Palin case, the Times likely paid a small fortune in legal fees, despite winning, and is likely to face more costs if Palin appeals. As the most financial stable newspaper in the country, it can afford it; there are countless media outlets that could not.

The intimidation effect of suing even when the Sullivan standard makes winning unlikely is common enough that there’s a name for these kinds of legal claims: a strategic lawsuit against public participation, usually abbreviated SLAPP. In some states, there are anti-SLAPP laws on the books to allow defendants to claim legal fees in cases they win — but these are limited in scope and only apply in those states. Passing a strong federal anti-SLAPP would be a major step forward for press freedom.

Until then, the Sullivan precedent is largely what stands between us and deep-pocketed plaintiffs from replaying the Gawker playbook against other news outlets. Palin’s attempted attack on the precedent should be understood as an effort to bring that grim future closer to reality.

We’re not the only ones to make that observation. Charles Harder, the attorney who led the Peter Thiel-funded team that brought down Gawker, was reportedly in attendance at the trial, taking very detailed notes.

There’s a lot going on in the world, so you’ll be forgiven if you missed the disturbing news last week that the CIA is amassing a significant amount of private data on Americans through a secret surveillance program that the agency is running outside any oversight from either Congress or the courts.

In a letter released Feb. 10, Sens. Ron Wyden and Martin Heinrich revealed only the vaguest of contours of the program while demanding the director of national intelligence declassify the details, so that Americans can find out what the CIA has been doing under their name. Many of the specifics, including what types of data the CIA has been collecting on Americans, remain hidden behind a wall of secrecy.

Just two weeks after the director of national intelligence admitted the U.S. classification system is so broken that it hinders our democracy, we learn of yet another mass surveillance program affecting Americans’ rights that has been totally hidden from public view.

The New York Times’s Charlie Savage has an excellent rundown of the scandal. These paragraphs get to the crux of the matter:

In 2015, Congress banned bulk collection of telecommunications metadata under the Patriot Act and limited other types of bulk collection by the F.B.I. under laws governing domestic activities like the Foreign Intelligence Surveillance Act, or FISA.

Yet “the C.I.A. has secretly conducted its own bulk program” under Executive Order 12333, the senators wrote.

“It has done so entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional or even executive branch oversight that comes with FISA collection,” the letter continued. “This basic fact has been kept from the public and from Congress."

Digging deeper, these pieces each explore other important facets of the burgeoning scandal:

• Longtime national security reporter Spencer Ackerman, who was one of the Guardian’s lead reporters during the Snowden disclosures, wrote about how “the CIA has been stealing your data for years.”
• Elizabeth Goitein at Brennan Center, who knows more about surveillance law than just about anyone, wrote a really informative article about “how the CIA is acting outside the law to spy on Americans.”
• Our friends at EFF analyzed many of the aspects of the program we don’t know about, and how outrageous it is that the U.S. government continues to use its classification program to hide potentially illegal programs from any public scrutiny.

We'll have more on this story as it develops.

For journalists covering the immediate aftermath of George Floyd’s death in 2020, there was no more dangerous place to be than Minneapolis. According to our U.S. Press Freedom Tracker, in the span of one week, authorities in the city committed more assaults and more arrests of journalists than in the entirety of 2019.

On Wednesday, the Minnesota State Patrol was finally held accountable for their actions. The ACLU of Minnesota, which represented a class action group of journalists who were attacked and arrested during that time, has come to a historic agreement that was just approved by a judge. The settlement should be a model for other jurisdictions around the country who saw police flagrantly violate the rights of journalists in 2020.

In addition to more than $800,000 in financial compensation for the journalists involved, law enforcement working with MSP and the MSP — under court order — will now be explicitly prohibited from:

• Arresting, threatening to arrest, and/or using physical force or chemical agents against journalists.
• Ordering journalists to stop photographing, recording or observing a protest.
• Making journalists disperse.
• Seizing or intentionally damaging equipment such as photo, audio or video gear.

One of the plaintiffs, Ed Ou, our friend and award-winning photojournalist who was seriously injured by state troopers, said on Twitter after the decision was announced:

“For me, this lawsuit and settlement is bittersweet - because it is… sad that we even needed to do this in the first place. We should have already been protected by the First Amendment, and able to operate without fear of being attacked by security forces for our work. But this is a start, and sends a signal to security forces that they cannot act with impunity, and there are consequences for their actions.

I am grateful to everyone who supported us, and proud to stand with journalists who continue to bear witness and bring truth to light.”

As we have cataloged in the U.S. Press Freedom Tracker, more than 140 journalists were arrested around the country in 2020, a nearly 1500% increase on the year prior. More than 600 were assaulted in the same year. In the vast majority of those cases, the perpetrator was law enforcement.

While the issue of press freedom has been elevated to a national level over the past few years, this case is a reminder that it is state and local jurisdictions that have the most power to protect or curtail journalists’ rights. If police departments are not held accountable for arresting reporters exercising their First Amendment rights, or they are not punished for assaulting or shooting projectiles at reporters while they do their jobs, then these actions will only continue.

Tracker senior reporter Stephanie Sugars recently documented that there are currently dozens of lawsuits in progress around the country, brought by journalists who were arrested or assaulted by police officers while covering Black Lives Matters protests in 2020 and 2021.

We hope this settlement will become a model around the country for other journalists seeking accountability, and judges in those cases should take note.

A state appeals court has stayed a prior restraint order in a high-profile case between The New York Times and Project Veritas. For three months, the paper had faced an unconstitutional censorship order unprecedented in modern publishing history. The last time it had been subjected to such a broad gag order was the Pentagon Papers case over fifty years ago.

According to the new ruling, the Times is free to publish documents that had previously been restricted, and will not be forced to turn over or destroy any copies it is holding.

From Freedom of the Press Foundation directory of advocacy Parker Higgins:

It's a relief to finally see this outrageous prior restraint suspended, but frankly it never should have happened in the first place. It violates the fundamental press freedom guarantees in the First Amendment, and the potential precedent would allow plaintiffs to silence coverage and squelch all sorts of reporting. We look forward to the underlying order being thrown out entirely.

Project Veritas, the plaintiff in this case, is currently also the subject of a separate case closely watched by press freedom advocates. That case involves an FBI raid of the homes of several people involved with the conservative group.

Last week, Director of National Intelligence Avril Haines said out loud what everyone inside the U.S. intelligence community already knows, but rarely will admit in public: the U.S. secrecy system is horribly broken.

"It is my view that deficiencies in the current classification system undermine our national security, as well as critical democratic objectives, by impeding our ability to share information in a timely manner, be that sharing with our intelligence partners, our oversight bodies, or, when appropriate, with the general public,” Haines wrote in response to an inquiry from Sens. Ron Wyden and Jerry Moran.

Normally, we have to wait for those involved in deploying the classified stamp to leave the government before they admit the obvious. As such, no administration has ever made a meaningful attempt to fix it.

Or perhaps the lack of reform stems from the fact that many of the same government officials who will privately admit the system is broken are also the ones who wield it as both a shield from accountability and a weapon of impunity. Haines is certainly right that overclassification hinders democracy. But the problem is worse than that. Secrecy is killing innocent people — or at least letting those doing the killing get away with it.

Two incidents last week at the White House and State Department are stark reminders on how the secrecy system can be manipulated in ways that can stifle accountability and even lead to war.

On Thursday, White House spokesperson Jen Psaki drew well-deserved criticism for implying that an NPR reporter — who was asking skeptical questions about civilian casualties during a Pentagon operation on ISIS — may be more trusting of the terrorist organization than the U.S. government.

That sentiment would be appalling under any circumstances, however it’s particularly galling now, given that just a few months ago — the last time the Biden administration was touting that it killed a terrorist — the victims turned out to be an innocent aid worker and his family. The details of the “righteous” strike were initially classified, and only through dogged investigative reporting by The New York Times was the Pentagon forced to release more information and fess up what really happened.

As we wrote at the time, if such truthful information came from a government official, instead of interviews from Afghani witnesses, that official would be subject to prosecution. Since the Pentagon “investigated” itself, no one was punished for the strike, which killed almost a dozen innocent people, including many children.

The Times followed up its investigation into the tragic Afghanistan drone strike by looking into another battlefield, this one almost wholly hidden from public view: Syria. There, the newspaper focused on a notoriously aggressive U.S. military unit that allegedly had a habit of breaking rules and piling up collateral damage. In one particularly horrific instance, the unit reportedly killed dozens of women and children, and then used the classification system to cover it up.

The same day as the White House incident, veteran Associated Press reporter Matt Lee was grilling State Department spokesman Ned Price after Price alleged Russia was planning a false flag operation on the border with Ukraine, citing classified information of nebulous origins. Lee repeatedly asked for actual evidence of such an extreme claim. After Price responded by insinuating Lee believed the Russian government more than his own, they had this exchange.

Price: "You have been doing this for quite a while —"

Lee: "I have. That's right. And I remember WMDs in Iraq, and I remember that Kabul was not going to fall. I remember a lot of things."

Lee’s retort was a humorous but powerful reminder that many of this country’s major wars, not only Iraq, but Vietnam and others, have started based on lies that were protected via the classification system.

Haines, in her letter, claims that the issue of government secrecy is of “great importance” to President Biden. It’s clear the system needs to be dismantled and rebuilt from top to bottom. But maybe they can start with de-classifying the declassification reforms put into last year’s intelligence spending bill. Yes, you read that right – even modest secrecy reform passed by Congress is still secret. Baby steps.

Sen. Richard Blumenthal, along with Sen. Lindsey Graham, has re-introduced the dangerous EARN IT Act.

After public backlash led to a major defeat in 2020, lawmakers are now attempting to rush the anti-privacy legislation through the Senate.

The EARN IT Act, a fundamentally anti-encryption bill targeting the cornerstone of Internet law, is on the fast track for a Senate vote after an earlier version collapsed amid widespread backlash from pro-privacy organizations. Two years ago we described the bill as a "threat to press freedom," an assessment that applies just as accurately to the current legislation.

EFF has published a tool to allow U.S. residents to contact their senators and urge them to oppose this dangerous bill. Fight for the Future has also rolled out an easy way to contact lawmakers about the bill.

The reintroduced version is in some ways worse than the draft that attracted such vehement pushback two years ago, but could be rushed through to a vote before meaningful opposition can reassemble. Expert analysis suggests it would be worse than useless at its stated goals: Though nominally aimed at reducing the spread of child sexual abuse material online, it could exacerbate that problem.

At the same time, it would wreak havoc on critical components of online infrastructure, such as strong encryption and established legal safe harbors.

Bills that complicate the deployment of strong encryption are bad for journalists, who must rely on broad privacy protections to communicate with sources and to conduct investigative research. It's no guarantee that even specialized privacy-focused platforms would be able to overcome the hurdles put in place by a law like EARN IT: two years ago, the non-profit behind Signal messenger said it would not be able to operate in the United States in such a legal environment.

The bill, if passed, would constrain existing legal safe harbors, incentivizing platforms to overzealously restrict the kinds of content that users can post and share. This kind of chilling effect followed an earlier law, SESTA/FOSTA, on which EARN IT is modeled. In the wake of SESTA/FOSTA's passage in 2018, multiple platforms did immediately shut down rather than face the legal jeopardy of continuing to operate.

A government study on the topic and a comprehensive law review article have confirmed the suspicion that the environment is now worse for investigators to find sex trafficking offenders and victims. Although the role of journalistic investigations and law enforcement investigations are very different, dynamics that restrict one can certainly impact the other.

For these reasons and more, in just the week since its reintroduction EARN IT has received vociferous opposition across the political spectrum from ACLU to Americans for Prosperity. Freedom of the Press Foundation strongly opposes the proposal, and we will be following as its backers attempt to rush it through the process.

The Iowa state senate chamber, where lawmakers have recently restricted journalist access.

In a growing number of state legislatures across the country, journalists are facing new rules and proposed legislation that breaks with traditions of public access to legislators. These moves are a troubling development in the increasingly rocky relationship between government officials and the press that covers them, and should be rolled back and opposed wherever possible.

Two recent shifts were highlighted in this month's U.S. Press Freedom Tracker newsletter. In the Iowa and Kansas senates — both controlled by Republicans — legislators announced that journalists would no longer be allowed on the floor, and instead moved to a public gallery. In each case, lawmakers cited practical concerns and downplayed the First Amendment implications, but the effect has been to diminish the ability for journalists to effectively cover legislative action.

In Kansas, the Republican former president of the Senate Steve Morris objected to the move in an op-ed in the Kansas Reflector. "Placing restrictions on journalists in the Senate chamber suggests there is something to hide, or that leadership is taking unwarranted and unnecessary retaliation against reporters."

And last week, the Committee to Protect Journalists — a partner of the U.S. Press Freedom Tracker — spoke with a number of journalists about the effect of the change. Erin Murphy, the Des Moines bureau chief for the Cedar Rapids Gazette, said of the move, "When we work from the press benches on the Senate and House floors, we have direct access to those lawmakers throughout a legislative session. All these things that help inform our reporting and help our work so much better become infinitely more challenging when we’re in the upstairs gallery literally removed from those folks."

Sherman Smith, a reporter for the Kansas Reflector, told CPJ he took issue with the official explanation for the change. "I don’t know if they were trying to antagonize reporters, or if they just didn’t care about reporters. But we do know that the explanation that there are more of us now than ever before just isn’t true and the idea that it doesn’t matter because we can watch the video stream or the view from the balcony above just speaks to a fundamental misunderstanding of how we do our job."

Both journalists expressed concern that the shift would create a precedent that could be applied elsewhere — a fear that was vindicated this week as a Republican lawmaker in Utah introduced a resolution that would create similar restrictions in the Beehive State.

Following the script, Utah officials cite logistical challenges, but their explanations for restricting access hardly hold water. If there are practical concerns to allowing the journalists to effectively conduct their work on the floor of the state legislature, lawmakers should address those concerns. Hiding behind excuses like a shortage of chairs or undersized committee rooms is a bad look for the lawmakers claiming them, produces bad results for journalists just trying to do their jobs, and ultimately spells bad news for an informed public in these states.

It seems like every other day there’s a new shocking story about the shadowy company NSO Group and its notorious hacking tool, Pegasus — which has been used by authoritarian governments to spy on the phones of activists, politicians, and dozens of journalists around the world.

Every new story is a stark reminder to support not only the journalists reporting the facts, but also the brave whistleblowers who bring them to light.

This week, the Guardian and Washington Post reported on a new whistleblower coming forward, who alleged NSO Group offered “bags of cash” in exchange for access to U.S. telephone networks, so it could more easily spy on its clients’ targets. From the Post:

The surveillance company NSO Group offered to give representatives of an American mobile-security firm “bags of cash” in exchange for access to global cellular networks, according to a whistleblower who has described the encounter in confidential disclosures to the Justice Department that have been reviewed by The Washington Post.

NSO Group (sort of) denied the charge in a somewhat bizarre statement, saying its co-founder “has no recollection of using the phrase ‘bags of cash’, and believes he did not do so. However if those words were used they will have been entirely in jest.” The Post also revealed the Justice Department has a criminal investigation open against NSO Group.

Last week, a long New York Times investigative piece revealed that the FBI had bought a license to NSO’s hacking tool well after Pegasus was alleged to have been used in the lead up to the Saudi government’s gruesome murder of journalist Jamal Khashoggi. According to the Times, the CIA had “arranged and paid for the government of Djibouti to acquire Pegasus to assist the American ally in combating terrorism, despite longstanding concerns about human rights abuses there, including the persecution of journalists and the torture of government opponents.” (Maybe the Justice Department should also look into that!)

Then, last month, we also learned “the phones of a majority of staffers” at the El Salvadorian news outlet El Faro had been hacked using Pegasus software as well. (We’ve joined a broad coalition of civil society groups condemning this disturbing use case.)

These stories are only the tip of the iceberg. For many years now, huge teams of journalists have worked to expose NSO Group and its disturbing surveillance around the world. While the reporters doggedly uncovering this story have done incredible work, it’s important to remember these investigations would have been impossible without many brave whistleblowers who spoke out despite the fear of reprisals from the company or governments.

Gary Miller, the whistleblower at the center of the new stories, has bravely come forward to reveal his name. In doing so, he exposes himself to great legal and extralegal risk. Whistleblower Aid, the nonprofit legal group, is running a crowdfunding campaign to support the legal expenses of Miller. It’s a worthy cause, as what happens in these cases can often dictate whether more whistleblowers will come forward and what the consequences will be if they do.

“It’s very stressful to become a whistleblower,” John Tye, Whistleblower Aid’s executive director told Freedom of the Press Foundation (Tye is also a one-time whistleblower himself). “You can get sued, you can get hacked, often you need to find a new job or even a new career. We started working with Gary in December 2020, 14 months ago. It took us that long to tell this story in a way that minimized the risks to him.”

The E. Barrett Prettyman Federal Courthouse in Washington, D.C., home to the Foreign Intelligence Surveillance Court and others.

The National Security Agency failed to follow procedural and policy requirements surrounding the use of surveillance data collected on U.S. persons, according to a new report from the group's Office of the Inspector General. The finding, issued Monday, is the result of a "special study" conducted as part of the latest semiannual report delivered to Congress.

Stop us if you’ve heard this before. The fact is, Section 702 of the Foreign Intelligence Surveillance Act creates a giant pool of surveillance data, and misuse of that data is rampant — and has been for years. Monday's evaluation finding a “number of concerns” is thrown onto a heap of similar findings around the NSA and other intelligence agencies.

And those are just the violations we know about. In the time since the Snowden leaks cast a critical eye over much of the U.S. intelligence community, the NSA and other agencies have been compelled to report more of their misuse of surveillance data, but face little accountability. Where there are opportunities to push back against this systemic noncompliance, lawmakers have not opted to act, and courts — including the notoriously secretive Foreign Intelligence Surveillance Court, which was created specifically to provide oversight to this kind of program — have not pulled on the reins.

Just last year, that court released a ruling that found the FBI was improperly querying the same cache of data, but approved of the agency’s use. The court was — you guessed it — “concerned about the apparent widespread violations” and found that compliance was even harder to ensure since the start of the coronavirus pandemic, but did not restrict the agency’s access.

And why should it? Only months before, the same court had found that the FBI and the NSA had engaged in “widespread violations” of the same law, and offered no consequences worse than the harsh words of an opinion.

And months before that, more previously classified court opinions were published showing FBI violations of the same procedures, including in at least one case in contradiction of advice from its own general counsel. The FBI’s inspector general has found concerns of its own, including a 2020 report that found errors in every application to the FISA court that it reviewed.

At what point do these “concerns” lead to actual change? Section 702 was introduced in the FISA Amendments Act of 2008, and was renewed in 2018. It’s set to expire next year. It’s clear the FISA court can’t or won’t enforce the law around this giant pool of personal data. It’s time to let it dry up.

More than six months ago, the Department of Justice (DOJ) announced sweeping changes to its “media guidelines” — the agency’s internal rules for when and how it can spy on reporters. In a memo to all its staff, Attorney General Merrick Garland barred the surveillance of journalists who were engaged in ordinary newsgathering in all but the most extreme scenarios.

As we said when the initial announcement was made, the DOJ’s new guidelines were potentially a sea change for press freedom rights — and we called for Congress to quickly enshrine them into law. We explained how action from Congress is vital for the policy to have any teeth.

Sen. Wyden called the Justice Department's inaction 'frustrating and unacceptable.'

At the time, Garland appeared to agree. The attorney general explicitly stated the DOJ would support congressional legislation to bring the force of law to his new rules: “[T]o ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations,” he wrote, “the Department will support congressional legislation to embody protections in law.”

But from what we can tell, the DOJ has not lifted a finger publicly or privately in order to help get its new media rules passed by Congress since — despite the fact that multiple bills have been introduced that would do just that.

The DOJ could easily lend its support to Sen. Ron Wyden’s PRESS Act, which Freedom of the Press Foundation endorsed last year. Sen. Wyden’s bill—which was also introduced in the House by Rep. Jamie Raskin—closely hews to the language the DOJ now supposedly abides by, and it provides law enforcement narrow but legitimate exceptions in cases of emergency.

But according to Sen. Wyden himself, the DOJ has not responded to half a dozen official inquiries from his office for comment on his PRESS Act.

“The Justice Department’s failure to engage on one of the attorney general’s own priorities is extremely frustrating, and frankly unacceptable,” Sen. Wyden said in a statement released to Freedom of the Press Foundation. He continued:

"Attorney General Garland asked Congress to pass a journalist shield law just a few days before I introduced the Press Act to put protections similar to DOJ’s current policies into black letter law. My office reached out to the Justice Department half-a-dozen times over the past six months to work together on my bill with Rep. Raskin, but has gotten zero response."

Through the DOJ’s press office, we also asked the agency’s legislative affairs team whether they have weighed in publicly or privately on any bill since Garland’s promise six months ago. As of press time, we have not heard back either.

Why is this step so important? As it stands, the DOJ media policy is nearly unenforceable; if the DOJ breaks its word, there is no clear avenue to accountability, since the guidelines are only internal to the agency. Indeed, the DOJ has been accused of breaking previous iterations of its own media policy many times over the years. The rules can also be changed at any time by the current attorney general, or the next one, with just a flick of the pen. And the DOJ’s endorsement of any bill could mean the difference between it sailing through Congress and languishing in committee indefinitely.

The DOJ’s internal media policy changes were certainly a welcome break from both the Trump and Obama administrations, where secret and invasive surveillance of journalists became increasingly prevalent. But as of now, it's a half-measure — one that can be taken away from us at any time.

Lest our caution be interpreted as undue cynicism: we’ve seen this movie before — and even played a role in it.

In 2009, to great fanfare, Obama’s Justice Department released new internal guidelines for the Freedom of Information Act (FOIA), as part of President Obama's promise to be the most transparent administration ever. But when Congress tried to pass DOJ’s guidelines — almost word for word! — into law, DOJ vociferously opposed the bill in private. It was only after our successful FOIA lawsuit exposing the DOJ’s hypocrisy that the agency was forced to drop its protest to its own rules, and Congress finally passed them.

We hope this time is different, but we fear it is not. The DOJ needs to follow through on its promise, and it can start by immediately endorsing the PRESS Act and helping the bill make its way through Congress.

The fight to free PACER, the federally managed database of public court records that has sat behind a paywall since its inception, has stretched on for more than a decade now. These efforts may finally pay off in 2022 with a bill poised for the Senate floor that achieves many of the aims of the "free PACER" movement.

The Open Courts Act of 2021 was approved by the Senate Judiciary Committee last month with no recorded opposition, clearing the path for the bill to go to the full Senate. Not only that, nearly all of the committee members have now co-sponsored the legislation — a clear indication of the bill's popularity. If passed, the Open Courts Act would standardize search and filing mechanisms between different federal courts and eliminate fees for all but the highest-volume users (those who are currently spending more than $25,000 a quarter) and federal agencies.

That matters because under the current system, people who want to access court records on PACER are first charged 10 cents for search results, and then 10 cents per page of document downloaded — despite the fact that every single record is part of the taxpayer-funded court system. Because of its clunky and non-standardized interface, it’s not unusual to rack up fees just in the searching step. This arrangement is wildly hostile to transparency, and the result is a dramatically diminished public understanding of what is actually happening in American courts.

Predicting the course of legislative proceedings is always a challenge, and has become even more complicated with such a tightly divided partisan split. Fortunately, this bill seems to transcend typical partisan divides, attracting support from both sides of the aisle. The current House companion to the bill was introduced with bi-partisan sponsors, and an earlier version passed easily through the House.

What opposition there is comes mostly from representatives of the court system itself. Earlier this month, Judge Roslynn R. Mauskopf published a letter to House and Senate leaders calling for delays in action. Indeed, pushback from the judiciary, which estimated last year that it would take in $142 million in fees for access to the public records, was instrumental in earlier efforts to stall legislative action.

Their arguments remain unpersuasive. Unrestricted access to public records is essential, both for the practice of journalism and for the cultivation of an informed public. Court records shape the law itself. Fortunately, activism and advocacy in this space, including the efforts of rogue archivist Carl Malamud to publish state laws online — a practice that was upheld by the U.S. Supreme Court — have successfully moved the needle on these questions.

Beyond the basic press freedom principles at stake, this issue hits close to home: Aaron Swartz, the online activist who founded the SecureDrop project we now maintain, was also an early contributor to RECAP, the paywall-free alternative to PACER that today makes tens of millions of documents freely available.

We urge the full Senate to take up the Open Courts Act, and for the House to pass it as well. The barriers to access for PACER constitute a challenge to a free press, and lawmakers must remove those restrictions as soon as possible.

In a world where press freedom is under constant threat, part of our mission at Freedom of the Press Foundation will always be to defend investigative journalists who are in the most danger. But we see our job as more than that. We strive to not only defend journalists, but to empower them in the face of adversity.

We’re not just advocating for press freedom rights — we are also building technology to protect journalists and whistleblowers where lawmakers refuse to help.

And without our supporters, our donors, and the brave journalists and whistleblowers who put their lives on the line, none of our work would be possible. Please help us sustain this important work with a donation by clicking here.

Here are a few highlights of what we accomplished in 2021:

• U.S. Press Freedom Tracker: In 2021, the U.S. Press Freedom Tracker monitored press freedom violations in the United States in real time, recording more than 200 press freedom violations and publishing nearly 600 incidents and updates.

There were more arrests or detainments of journalists this year than in 2017, 2018, and 2019 combined — as an unprecedented crisis continued for journalists attempting to do their job covering the pandemic, nationwide protests and elections.

• SecureDrop: FPF completed the second independent security audit of the next generation of SecureDrop, SecureDrop Workstation, concluding that “the system represents a complex but well researched product that has been thoughtfully designed” and identifying no issues that were directly exploitable by an attacker.

The new SecureDrop Workstation greatly simplifies the process of checking SecureDrop and responding to sources. To date, it has been used in production by 5 newsrooms and has been very positively received. In the year ahead, we will be rolling it out to the 75+ news outlets using SecureDrop.

• Digital Security Trainings: Despite working in a remote capacity, the Digital Security Training team was able to deliver trainings to over 1,300 journalists, filmmakers, and other media makers across the globe.

FPF also successfully launched the Filmmaker Toolkit, in partnership with Field of Vision, and the long-awaited Digital Security Curriculum for Journalism Schools.

The role of journalism in our democracy matters now more than ever and we are grateful for your support of our important work. For more information, please see our full 2021 Impact Report (PDF), outlining the work we’ve accomplished in the past year, an overview of our major projects and programs, and how we will be expanding on our work in 2022.

Aaron Swartz addresses a crowd rallying against SOPA in New York City on January 18, 2012.

Ten years ago this week, a powerful online activism campaign against the proposed Stop Online Piracy Act stopped the bill in its tracks, much to the surprise of the lobbyists and legislators who had considered its passage inevitable. Led by grassroots organizers and civil liberties groups, sites big and small “went dark” for the day in a “blackout” designed to draw attention to the issue and direct calls to Washington.

That proposal — and its defeat — predates Freedom of the Press Foundation, but the struggle it represents is in line with the same speech battles we continue to fight today. As part of a panel of guest posts on Techdirt, we’ve published our retrospective marking the 10-year anniversary of the blackout campaign, examining the effect that such a public policy skirmish had on copyright’s role as an arena for broader speech questions:

[C]opyright proposals that had been proxies for regulating online speech more broadly have migrated to other areas of the law. Most notably in the past decade, these attacks have focused on section 230 of the Communications Decency Act. In some cases, the overlap is almost comical, like when op-eds pushing for changes cite the wrong law, and the New York Times has to issue a correction. In other moments the effect is more depressing. Watching FOSTA/SESTA skate through to passage, despite all the organizing against it, was a low point for online speech.

In my work with journalists today, copyright continues to be a chokepoint for silencing unfavorable reporting, but it is only one arrow in the quiver of would-be censors. We see police officers attempting to limit the distribution of their statements by playing mainstream music in the background, or right-wing activists issuing takedowns for newsworthy photographs documenting their associations, but we also see frivolous SLAPP suits by elected officials, a dramatic rise in arrests and assaults on journalists, and existential legal threats to entire outlets.

Other panelists with posts in the Techdirt series include Mike Masnick on the continuing reverberations of the SOPA protests; Fight for the Future co-founder Tiffiniy Cheng on how they came together; David Segal on the role that Aaron Swartz and Demand Progress played; and Public Knowledge’s John Bergmayer on the ongoing efforts by some industry players to push for SOPA’s goals.

Photojournalist John Harrington was assaulted, including being hit in the head with a fire extinguisher, while covering the Capitol riots on Jan. 6, 2021. The U.S. Press Freedom Tracker documented at least 16 journalists assaulted that day.

Just six days into January 2021, journalists documenting the Capitol riots were assaulted and tens of thousands of dollars of media equipment damaged. In April, a journalist went on trial after her arrest while reporting from a Black Lives Matter protest the year before. By the time the year closed, one of the most venerated news institutions was under a publishing gag-order.

While we did not see the scope of national social-justice protests of 2020—a year in which journalists were arrested or assaulted on average more than once a day—2021 still outpaced the years before it for press-freedom violations. We systematically capture this data in the US Press Freedom Tracker, where Freedom of the Press Foundation, in partnership with the Committee to Protect Journalists and other press freedom groups, has documented aggressions against journalists in the United States since 2017.

It’s tempting to compare 2021 against 2020—when assaults and arrests of journalists hit an all-time high—and conclude, because fewer journalists were arrested and fewer were hit with crowd-control munitions, that the state of press freedom in the US can be ignored. That conclusion would be wrong.

In fact, if you remove 2020 from the equation, the amount of press-freedom violations documented in 2021 outpaces the years before it across several categories:

• More than 140 assaults of journalists in 2021 captured in our “Physical Attack” category outpaces assaults from 2017 to 2019 combined;
• The number of journalists reporting equipment damaged outpaces the same reports from 2017 to 2019 combined; and
• The 59 arrests or detainments documented by the Tracker nearly equals the arrests and detainments documented from 2017 to 2019 combined.

In 2021, we documented 142 assaults of journalists. For the second consecutive year, the majority of those assaults came during protests: 95 percent in 2020 and 77 percent in 2021.

The year began with a protest that became a riot, as the US Capitol was stormed by a mob attempting to stop certification of election results. The Tracker documented at least 16 journalists assaulted in Washington, DC, while covering those events, many of whom were targeted.

For the second year in a row, the response to federal and local mandates around COVID-19 also factored into physical attacks of journalists. From anti-lockdown to anti-vaccine protests, coronavirus-related assaults increased from four (and much harassment) in 2020 to 14 in 2021.

Read: For visual journalists, harassment now comes from all sides

In 2020, an unprecedented 142 arrests and detainments of journalists occurred, a nearly 1500-percent increase over the nine documented in 2019. In 2021, that number was 59, with nearly half arrested or detained in kettles, a tactic used to hem in large crowds, often before mass arrests.

The last arrests of the calendar year came on Christmas Day, when two Asheville Blade reporters were arrested while covering the eviction of a homeless encampment in North Carolina. Both face charges of trespassing, with hearings scheduled for March, and one of the reporters, Matilda Bliss, had her phone confiscated during her arrest.

Read: More than 50 journalists arrested or detained while on the job in the U.S in 2021

Subpoenas, the Espionage Act and a Prior Restraint

Other Tracker categories—we monitor nearly a dozen—deserve closer looks as well.

For the first time in five years of documentation, the number of publicly-known subpoenas or other legal orders has decreased rather than increased. Of course, it’s not unusual to find out about subpoenas much after the fact: In 2021, we published details about just more than 50 subpoenas requesting reporting material or journalistic testimony. Fewer than half of those were for subpoenas issued in 2021.

For example, the US Department of Justice informed The New York Times on June 2, 2021, that the agency secretly obtained phone records of four of the newspaper’s reporters more than a year before, during the Trump administration in 2020.

That administration also attempted to obtain the four reporters’ email records in January 2021, an effort that continued for a time under the Biden administration. On June 5, the DOJ announced that it would no longer seize journalists’ records during leak investigations.

In December, freelance journalist Amy Harris sued the US House Select Committee to Investigate the January 6th Attack on the United States Capitol after it subpoenaed telecom operator Verizon for her phone records. Of the more than 20 subpoenas captured in 2021, Harris’ is among the eight still pending.

The Trump administration, together with the CIA, also reportedly plotted to kidnap—and possibly even assassinate—WikiLeaks founder Julian Assange, who has been held in a London jail since 2019, Yahoo! News reported in September. In October, more than two-dozen major civil liberties and human rights groups groups, including FPF, sent a letter to Attorney General Merrick Garland demanding that the DOJ drop its prosecution of Assange, underscoring “that the criminal case against him poses a grave threat to press freedom both in the United States and abroad.” To date, Biden’s DOJ has continued the Trump administration’s case against Assange, and in December, an appeals court in the United Kingdom said it would allow the US to proceed in extraditing him.

And while we only documented one prior restraint for all of 2021, even one is noteworthy. On November 11, a New York state court ordered the New York Times not to publish information around the group Project Veritas, the first prior restraint for the newspaper since the Pentagon Papers case 50 years ago. That prior restraint, which was struck down by the Supreme Court in a landmark decision in 1971, only lasted 15 days. As of this writing, this latest prior restraint remains in place, confounding press-freedom groups.

Kirstin McCudden is the vice president of editorial for Freedom of the Press Foundation and managing editor of the US Press Freedom Tracker. She writes the Tracker’s monthly newsletter, which first published much of this analysis. Subscribe to it here.

At the end of 2016, Freedom of the Press Foundation launched Secure The News to track and grade HTTPS adoption by news organizations, with the goal of motivating more news organizations to offer this critical security and privacy feature to their readers. Today, five years later, we’re happy to say that this goal has been largely achieved, and we are retiring the project while archiving and preserving its historical data.

HTTPS is a foundational building block of the secure web. It’s the protocol that ensures the connection between a reader and a website is encrypted such that information about their activity — articles they’re reading, quizzes they’re taking and more — is safe from prying eyes. HTTPS protects web users from eavesdroppers, be they criminals sniffing packets on public Wi-Fi or governments with access to raw traffic logs.

When Secure The News launched in 2016, HTTPS had been increasingly adopted by tech giants and e-commerce sites, but only 53% of the news sites we were tracking supported HTTPS at all — and only 13% made it the default way for readers to connect. As Wired reported on the project at its launch: “For now, it's a grim report card: 75 of the 104 sites received a D or F, and only 4 received an A for their encryption efforts.”

Wired continued:

The goal of that harsh grading, says FPF engineer Garrett Robinson, is to pressure the majority of news sites that haven't considered implementing encryption to add it, and to incentivize those who do use it to make security tweaks that won't ever be visible to most visitors. "We're trying to promote the adoption of best practices for digital security by news organizations with the intention of protecting the security and privacy of their readers, their sources, and their employees," says Robinson. "This ought to be the standard for the web and for the news industry."

Almost immediately, after journalists saw their employer was getting a ‘D’ or ‘F’ score on Secure The News, things began to change. Many news outlets, including the New York Times, started citing Secure The News in their announcements about switching their sites to HTTPS.

We thought some sites would be miffed at us for all the low grades, but the opposite was true: IT staff at major outlets would email us thanking us because they were able to use the Secure The News scoreboard to convince their bosses they needed to make the switch. In the most notable example, a sysadmin at a large news outlet emailed us to point out an error: his outlet’s Secure The News score was actually too high. He wanted to make sure his outlet was getting a failing grade, so he could then show his bosses they needed to invest in HTTPS.

As of our final scans this month, 99% of the 135 news sites in our database supported HTTPS and 98% of them made it the default way for readers to connect. There are, of course, many reasons why so many news websites are now encrypted by default, and Secure The News was only one factor. It is thanks to a massive combined effort of news organizations and the larger open web community, but the results are clear: a huge privacy and security win for news readers.

Percentage of sites passing Secure The News criteria over time: A site is considered passing if it passes a test more often than it fails in a given month. Code

We also tracked more detailed security measures. Fifty percent of news sites have added the HTTP Strict Transport Security header, or HSTS, that instructs modern browsers to only connect using HTTPS. In 2020 we also added tracking of news websites that had an “Onion service,” a technology that allows users to access websites with a high degree of anonymity using Tor. While the number of news sites providing Onion services remains small — it grew from 3% to 4% over the course of our tracking — we hope to see this number continue to rise as news organizations take more measures to protect their readers.

This project has officially sunset, but you can view a copy of it through the Internet Archive. We’re also making available the results of every scan we’ve run since the project launched as a bundle of JSON files: Download the data archive.

We continue to fight for privacy, security, and press freedom through SecureDrop, The U.S. Press Freedom Tracker, digital security trainings and resources for journalists and organizations, and more. If you have ideas for ways you'd like to see Freedom of the Press Foundation advocate privacy and security in the news in the future, please let us know!

More than 60 journalists have sued police after arrests or assaults at protests, according to new analysis from the U.S. Press Freedom Tracker. That total amounts to 82% of the lawsuits filed by journalist or media outlet plaintiffs against public officials. More than two-thirds of these suits — some 76% — were filed following aggression at Black Lives Matter protests in the past 18 months.

When a journalist sues to enforce their First Amendment rights, it can kick off a long and expensive legal process with no guarantee of accountability. In some cases, public agencies will settle early in the process — usually with a monetary agreement — and offer concrete changes to police policies or procedures as part of the settlement. Other lawsuits can languish for years or be dismissed altogether.

The new analysis goes into detail on those settlements, as well as the approximately 29 press freedom lawsuits that remain pending. That litigation is in courts all over the country, and represents journalist suits brought in Los Angeles, Minneapolis, New York City, Portland and elsewhere.

Read the full report on journalist litigation at the U.S. Press Freedom Tracker.

New reporting into a government operation codenamed "Operation Whistle Pig" describes a shocking level of invasion into the personal and private lives of journalists. In blockbuster reporting, Yahoo News describes the actions of the Counter Network Division, a secretive unit of U.S. Customs and Border Protection that works with law enforcement and the intelligence community.

The reporting focuses on the story of Ali Watkins, a journalist whose phone and email records were seized by the government under the Trump administration, but outlines invasive CBP investigations — which involved rifling through confidential government databases — into as many as 20 journalists. Those investigations led to referrals for criminal prosecution of at least three CBP employees, but no charges were ultimately filed. Yahoo News reportedly obtained a copy of the Department of Homeland Security inspector general report describing this misconduct and the referrals.

Three main takeaways from this story:

• Surveillance of journalists is, at least on paper, tightly circumscribed by the Department of Justice media guidelines, which were recently rewritten in light of embarrassing disclosures this year of improper investigations into journalists during the Trump administration. At the very least, these news media guidelines should be adopted by all other federal agencies. The Yahoo News story quotes law professor Geoffrey Stone on this point: "If there is no law or policy that specifically regulates it, then there’s nothing that prohibits it."
  
  
• That’s only a start. As we've consistently argued (and as Attorney General Merrick Garland said when signing the rewritten media guidelines into effect), these policies must be codified by proper legislation. Congress should pass legislation such as the PRESS Act, which would enshrine these strong protections into law — where they will carry greater weight and cannot be changed by a future administration's memo.
  
  
• In this case in particular, DHS must turn over to Congress its inspector general report on this operation for appropriate oversight, as called for by Sen. Ron Wyden.

Congress should conduct a thorough investigation into Operation Whistle Pig and the DHS and CBP role in leak investigations generally. Journalists should be able to do their job without the fear of shadowy government employees searching through their private financial or travel records.

A UK appeals court has allowed the United States to proceed in its extradition of Wikileaks publisher Julian Assange, overturning an earlier ruling that denied prosecutorial efforts based on the inhumane conditions of the American prison system.

The US Justice Department under Donald Trump specifically charged the Wikileaks publisher under the Espionage Act and the Computer Fraud and Abuse Act, largely for actions rightfully recognized as protected news gathering practices.

The Biden administration has continued the case, despite the near-universal condemnation from the civil liberties, human rights, and journalistic communities; Freedom of the Press Foundation has joined ACLU, Human Rights Watch, Amnesty International, Committee to Protect Journalists, and a coalition of more than two dozen organizations to repeatedly urge President Biden’s Department of Justice to drop its prosecution.

Today’s ruling is an alarming setback for press freedom in the United States and around the world, and represents a notable escalation in the use of the Espionage Act in the “War on Whistleblowers” that has expanded through the past several presidential administrations.

The following statement can be attributed to Trevor Timm, executive director of the Freedom of the Press Foundation and an expert witness for the defense at the trial level:

These proceedings, and today's ruling, are a black mark on the history of press freedom. That United States prosecutors continued to push for this outcome is a betrayal of the journalistic principles the Biden administration has taken credit for celebrating. As brave whistleblowers have explained for decades, this kind of abuse of the Espionage Act against sources — and now journalists and publishers — is an embarrassment to basic ideals of justice and to core First Amendment values.

We now await any possible appeal, or extradition and United States trial.

Freedom of the Press Foundation continues to urge the Department of Justice to terminate its pursuit of this prosecution, and to commit to not using the Espionage Act against journalists and their sources in other prosecutions. We urge Congress, too, to reform the Espionage Act so it can no longer be abused in this manner.

The 56 journalists arrested or detained in the United States in 2021 approaches the combined totals of 2017, 2018, and 2019 — an alarming indicator of the state of press freedom, according to a new report released by the U.S. Press Freedom Tracker. After the unprecedented pace of arrests in 2020, some may have hoped for a “return to normalcy.” But as this new report shows, the press environment in the United States is still reeling.

The Tracker comprehensively documents press freedom violations in the United States, capturing arrests or detainments of journalists throughout the year — including four in the first week alone. Per today's report, some 86% of those arrests or detainments occurred during protests.

The report also includes a section on continuing legal charges for arrested journalists. According to the Tracker, seven journalists currently face charges stemming from arrests while reporting, including five from 2020 and two from 2021.

Read the report in full at the U.S. Press Freedom Tracker.