Freedom of the Press

New York City Hall is out of line in demanding information about the criminal backgrounds and open cases of journalists applying for press credentials.

Freedom of the Press Foundation was among the chorus of voices calling for press credentialing authority to be removed from the New York Police Department in 2020. That necessary change was passed by New York's City Council last year, moving the authority to the Mayor’s Office of Media and Entertainment.

But the mayor's office, now tasked with this role, has imposed new and unjustified hurdles in the process, a practice reported last week by New York Magazine’s Intelligencer. The rule for the first time requires applicants to provide information about felony convictions or any “open case for a lawful arrest for a misdemeanor while newsgathering.”

That last line is especially egregious, given that our call for a revamped press credentialing process followed well-documented incidents of journalists being improperly arrested at protests. According to our U.S. Press Freedom Tracker, 13 journalists have been arrested or detained while reporting in New York City since 2020.

City Hall reportedly emphasized to Intelligencer that the rules were implemented before Mayor Eric Adams took office in January. Regardless, this is Adams’ mess to clean up. And people will be watching especially closely, given his longstanding ties to the NYPD. (Adams was a New York City police officer for more than two decades before beginning his political career.)

Moving the press credentialing away from the police was a necessary step, but ensuring that the process is conducted fairly and with appropriate respect for press freedom requires more. As a key stakeholder in the lawmaking process put it, this implementation goes against the intent of the lawmakers who fought to move the credentialing process:

Keith Powers, the council member who sponsored the law, said he was caught by surprise by how [the Mayor’s Office of Media and Entertainment] interpreted its new authority. “I was not aware of this rule in the application process, and think it should be removed to uphold the intention of Local Law 46,” he said in a statement.

Others have threatened to take the mayor's office to court over this new guideline. We urge the agency to do the right thing and remove these criteria from their application.

In an important ruling for the press’s ability to report freely on the work of other outlets, the Second Circuit Court of Appeals has ruled that including a screenshot in an article commenting on another article's reporting is not copyright infringement. This is welcome news in an age where copyright can be used to restrict what newspapers can and can’t say about each other.

The article in question, a 2017 New York Post piece titled "Why I won't date hot women anymore," described three vignettes from people who had supposedly sworn off the very attractive. The leading anecdote concerned a 40-year-old private equity executive who, post-epiphany, had become engaged to a "merely beautiful" woman. The article was illustrated with a photograph of the exec that ran at the top of the story. Mic Network, a media company, reported on the backlash that the article had received and incorporated a screenshot that included part of that photograph.

Photographer Stephen Yang sued Mic for copyright infringement, and Mic moved to dismiss the case on the grounds that its inclusion qualified as a fair use — meaning, not copyright infringement. The Southern District of New York agreed, providing a fair use analysis that came to the conclusion that the purpose and character of Mic's use was clearly “transformative” and used to identify and provide commentary on the underlying article. (Whether a use is “transformative,” and how much that should affect the analysis, has been the subject of lots of legal analysis, including in a case headed to the Supreme Court in the next term. In this case, the court didn’t get bogged down in the details.)

Yang appealed, arguing that because his photograph was not the target of criticism, the use wasn't fair — an argument the Second Circuit has now rejected. That's an important win for the press and its ability to report on the media itself — in part, because copyright has long been one of the levers of control that the subjects of news stories use to exert influence over how they may be covered.

Notably, before the Hulk Hogan case in state court that ultimately bankrupted Gawker, the former wrestler and his attorney Charles Harder filed a federal lawsuit for copyright infringement over the same video that formed the basis of the later suit. And in just the past several years, a guest at Donald Trump’s private golf club sued outlets making use of his photos to report on the newsworthy actions of the then-president.

Photographs in particular have become recognized as a source of potential liability for news outlets who could face ruinous damages at worst, or expensive and stressful litigation at best. That sense has been heightened by an unusual ruling also in the Southern District of New York, finding that embedding a photo directly from a social media post could possibly constitute copyright infringement. (After that ruling, the parties settled out of court, which meant the Second Circuit did not get a chance to weigh in on an appeal.) One consequence of this uncertainty is that, likely in an effort to limit their possible exposure to lawsuits, some sites have taken to removing images from their archives en masse.

As we’ve long argued, news reporting relies on fair use. The actual practice of fair use, in turn, relies on firmly established principles and precedents that can ward off litigation — or at least limit its scope. Although it’s unfortunate that the current case has dragged on for nearly four years, its unambiguous result in Mic’s favor may discourage other plaintiffs from following suit.

Senator Sheldon Whitehouse asks a question of Director of the DOJ Office of Information Policy, Bobak Talebian.

Senators from both sides of the aisle took representatives from the executive branch to task at a Judiciary Committee Freedom of Information Act hearing this week. At the first hearing on FOIA since 2018, lawmakers raised serious issues with compliance and backlogs that have ballooned since the COVID-19 pandemic started.

FOIA requests as a transparency tool are available to everyone, but they are especially popular for journalists, who can use the responsive records as leads or to provide primary source support for reporting. For a working journalist, the glacial pace of document production found in some government departments is a non-starter — and clearly out of compliance with the text of the law, which requires results in weeks, not months or years.

Questions from senators focused on those long timelines and the resulting backlog, which a Government Accountability Office witness said was up 18% in September 2020 over a year before, after six months of pandemic working conditions. (We wrote in April 2020 about the collapse in government compliance with its transparency obligations as the pandemic began.)

Data journalists also frequently require records that are up-to-date and readily available in a machine-readable format — an issue that was raised by Senator Jon Ossoff, who asked the witnesses about the digitization of record storage and how it affects the government’s ability to produce those records digitally. Ossoff argued that this should be a fundamental consideration, calling it "a basic question about how FOIA is operating in the context of new technology."

Several senators also raised questions about legislative record requests, which have suffered many of the same foot dragging and excuse making as FOIA. Senator Sheldon Whitehouse asked a Department of Justice witness about the agency's position in CREW v. DOJ, an ongoing FOIA case concerning a Justice Department memo on whether President Trump's conduct described in the Mueller Report constituted obstruction of justice.

Whitehouse and a group of six other senators have filed a brief in that case, arguing that the department should not be allowed to withhold the memo. The litigation began during the Trump administration but the Department of Justice has continued to fight the memo's release after President Biden took office.

Senator Ossoff also asked about DOJ guidance on requests from individual lawmakers, which currently are treated differently than requests from committee chairs. That guidance in particular comes from a 1984 memo that, Ossoff suggested, should be revisited. This kind of internal DOJ guidance has major influence on policy and isn’t always even public — the Knight First Amendment Institute has challenged that secrecy for Office of Legal Counsel memos and, through FOIA litigation, has gotten hundreds of such memos released.

The Freedom of Information Act remains a critically important transparency tool — look no further to the stories surfaced by @FOIAFeed every day for evidence of that. But the senators are correct that it needs significant fixes to be a useful and modern one.

Russia has cracked down extensively on independent reporting within its borders since it invaded Ukraine last month, leading many outlets to cease publishing or pull editorial staff from the country entirely. Still, international and independent news outlets that would face official censorship within Russia are finding ways to distribute uncensored news to avid readers.

If you’re a journalist or represent a news org looking to circumvent censorship in Russia, please reach out to Freedom of the Press Foundation — we may be able to help.

In some cases, the solutions are high-tech. BBC and The New York Times, for example, both offer Tor onion services to make an encrypted connection to their site available to anybody with Tor browser access. Providing an onion address offers benefits above simply encouraging Tor usage for news sites, which we’ve explained in the context of tracking onion roll-outs and which security researcher Alec Muffett has recently described in more detail.

Importantly, these outlets didn’t start offering onion addresses with the invasion — rather, they’ve long provided Tor access as one channel to read their reporting, meaning the onion URLs have already been widely distributed and would be harder to substitute with spoofs.

For services that haven’t always been available over Tor, offering a new onion service is still a welcome development. Twitter somewhat quietly rolled out a long-anticipated onion service this month.

Independent news outlets on the ground in Russia may not have the infrastructure to launch an onion service, but Meduza — which long anticipated the ban that was issued against it this month — was able to educate readers about using VPNs or other circumvention techniques to continue accessing the site, and offers a mobile app that has not been as straightforward to restrict. It has continued to produce valuable reporting since the new restrictions and is looking to non-Russian audiences to help fund its continued existence.

Some outlets have embraced the platform Telegram, which is popular in both Russia and Ukraine, to distribute news through designated channels. Last week, The New York Times announced that it would begin offering updates through the app.

In addition to the channels which provide a sort of newsfeed, Telegram is advertised as a secure messenger, though security researchers have long cautioned about some of its security design decisions. Earlier this month EFF provided a guide to harm reduction for users of the app. (For encrypted communication, we recommend Signal and maintain a guide to maximizing its security.)

Finally, some of the censorship-circumvention techniques being practiced in Russia are decidedly much more old-school. This month the BBC revived its regional short-wave radio broadcasts — technology usually more associated with World War II than the Internet age — and is transmitting World Service news into Russia and Ukraine for hours each day.

Russia has long been a dangerous place for independent journalists. But in the past week, President Vladimir Putin’s government has swiftly stamped out any remaining semblance of press freedom, in an attempt to prevent its populace from learning the truth about its brutal invasion of Ukraine.

Almost immediately after tanks started rolling across the Ukrainian border, Russian government authorities reportedly started issuing ominous edicts to newspapers to stop using certain words and phrases in their reporting. Nobel Peace Prize winner Dmitry Muratov, who runs the Russian newspaper Novaya Gazeta, told The New Yorker on Feb. 28, “We received an order to ban the use of the words ‘war,’ ‘occupation,’ ‘invasion.’” He continued, “However, we continue to call war war. We are waiting for the consequences.” Many other publications received similar messages.

Putin quickly made these authoritarian “warnings” official policy. As the Washington Post reported, the Russian Parliament passed a new law “banning what it considers ‘fake’ news about the military, including any rhetoric that calls the invasion of Ukraine an “invasion” — the preferred language is “special military operation” — with a potential 15-year prison sentence.”

According to the Committee to Protect Journalists, only four days after the invasion began, five journalists were already facing charges “and dozens more were detained across Russia following their coverage of anti-war protests.” An independent newspaper, which put anti-war messages (rough translation: “the madness must be stopped!”) on its front page, found its offices raided by government authorities.

On March 1, two television networks which aired criticism of the invasion were reportedly taken off the air. By March 3, journalists from Dozhd, what CNN described as “the last remaining independent news network in Russia” fled the country over fears of their own safety. "After the blocking of Dozhd's website, Dozhd's social media accounts, and the threat against some employees, it is obvious that the personal safety of some of us is at risk," said Dozhd’s chief.

The so-called fake news law also forced foreign press outlets like CNN to cease broadcasting in Russia. Bloomberg and BBC stated they would suspend all work inside the country. Columbia Journalism Review has more details about the various outlets that have already started evacuating employees or are considering doing so. The New York Times announced on March 8 it is pulling editorial staff still in Russia.

News websites operated by independent news outlets both domestically and abroad were censored on a large scale so that they were unreachable by most of Russia’s population, including Meduza, which is tracking all the sites that have been banned, blocked, or shuttered on its English site.

The broader global information ecosystem has also largely been taken away from Russian citizens looking for accurate information, either by government censorship or companies pulling out of the country voluntarily. As the Times reported:

​​TikTok and Netflix are suspending their services in the country. Facebook has been blocked. Twitter has been partly blocked, and YouTube’s future is in doubt. Apple, Samsung, Microsoft, Oracle, Cisco and others have pulled back or withdrawn entirely from Russia. Even online video games like Minecraft are no longer available.

The Putin regime may crack down on the press and the open web in an attempt to momentarily contain the domestic political crisis its invasion of Ukraine has created, but it comes at great cost to the people of Russia. They need truth and independent reporting more than ever.

The Supreme Court upheld and potentially expanded its pernicious “state secrets” privilege in two opinions late last week relating to expansive government surveillance and anti-terrorism programs.

In United States v. Zubaydah, a divided court ruled that the government did not have to disclose information about its torture program at CIA “black sites” to a plaintiff who is currently detained in Guantánamo Bay. In United States v. Fazaga, the court issued a unanimous opinion ruling that a case against the FBI for unlawful surveillance of mosques should not proceed because it could raise national security concerns.

The state secrets privilege, invented in its modern form by the Supreme Court in the 1950s in a case in which it was later shown the government lied, essentially provides a shield to the federal government from accountability in civil courts for any activity it considers “classified.” As EFF has explained, the government often uses the state secrets privilege to argue that even if allegations of law breaking or constitutional violations are true, they are exempt from judicial review.

The issues raised in these particular cases are among the most significant possible constitutional concerns. Secret torture programs and religious discrimination through illegal surveillance are obviously matters of major importance. It’s crucial that they are subject to public scrutiny and examination, and that any misconduct meets appropriate accountability.

In these two decisions, the Supreme Court has effectively eliminated the possibility of that kind of accountability. A dissent by Justice Neil Gorsuch and joined by Justice Sonia Sotomayor in the Zubaydah case lays out the problem eloquently:

In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word “Poland.” It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.

Justice Gorsuch describes the Supreme Court searching for truth and being frustrated by the government’s shame. The same dynamic, of course, is apparent when the government goes after whistleblowers who speak to the press, or even the publishers who release that critical information, with threats, condemnations, or even prosecution.

Sometimes those threats are petty, like the governor of Missouri promising prosecution for “hacking” against a journalist who reported on a security issue with the state’s handling of certain personal information. The state was embarrassed, and instead of owning that mistake, an official went after the proximate cause: reporting.

In other cases, the government pursues these grievances to extreme ends. Whistleblowers like Chelsea Manning and Reality Winner serve lengthy prison sentences, and Edward Snowden lives in exile facing Espionage Act charges after embarrassing the state.

The state secrets privilege is a specific legal argument that prevents a certain kind of accountability — namely, consideration by a court of law. The impulse that motivates its misuse, though, is much more general. It’s disappointing to see this abuse of power being upheld at the highest levels.

Fifty years ago the federal government tried to prosecute a New York Times journalist for publishing classified information. Since 2018, historians and press freedom advocates have been trying to unseal the mysterious grand jury case, but an appeals court has just ruled it will stay secret — public interest be damned.

Most everyone with an interest in press freedom knows about the seminal First Amendment Supreme Court case New York Times Co. v. United States, where then-President Richard Nixon and his administration notoriously attempted — and failed — to censor The New York Times for publishing the Pentagon Papers.

What many people do not know is that after that Supreme Court ruling, Nixon’s Justice Department also attempted to prosecute Times reporter Neil Sheehan, and potentially others, under the Espionage Act for gathering and publishing the classified study about the Vietnam War that would make up the Times’ legendary investigative series.

Former Times general counsel James C. Goodale recounted the events in 2013, which is one of the only contemporary descriptions of this important but oft-forgotten aspect of press freedom history:

The government's "conspiracy" theory centered around how Sheehan got the Pentagon Papers in the first place. While Daniel Ellsberg had his own copy stored in his apartment in Cambridge, the government believed Ellsberg had given part of the papers to anti-war activists. It apparently theorized further that the activists had talked to Sheehan about publication in the Times, all of which it believed amounted to a conspiracy to violate the Espionage Act.

Sheehan's wife, Susan, a reporter for The New Yorker, also was named in the government's case before the grand jury. A Who's Who of Boston-based reporters and anti-war activists were then forced to testify, including New York Times reporter David Halberstam, anti-war activists Noam Chomsky, Howard Zinn, and two senatorial aides to Mike Gravel and Ted Kennedy. Harvard Professor Samuel Popkin would even serve a week in jail for refusing to testify as to his sources, citing the First Amendment right to keep them confidential.

Thankfully, the grand jury failed to bring charges and the DOJ eventually dropped its case. But we largely do not know why, or the full extent of the DOJ’s investigation.

Historian Jill Lepore has been on a years-long legal quest to have documents from this same grand jury investigation unsealed once and for all. For a while it looked like she would succeed. A district court had previously granted at least some of her request. But the First Circuit Court of Appeals overturned that ruling earlier this week, making it uncertain whether the 50+-year-old documents will ever see the light of day. It is a disappointing ruling, one that also flies in the face of precedent in other circuits that says judges can indeed release this type of information to serve the public interest.

This case is particularly important because for the first time since then, the Justice Department is again trying to charge someone with “conspiracy to violate the Espionage Act” related to receiving and publishing classified information. WikiLeaks founder Julian Assange currently sits in prison in the United Kingdom, appealing extradition to the United States, where he faces 17 counts under that same law. Virtually every press freedom group in the world has condemned the charges as a threat to press freedom.

Supporters of the Assange prosecution often argue that “the U.S. would never prosecute a real journalist using these tactics.” Well, the Nixon administration attempted to do just that, and it’s vitally important for both the historical record and current events that we see exactly what happened 50 years ago. And use that information to make sure it never happens again.

You can read the full ruling by the First Circuit Court of Appeals via Reporters Committee for Freedom of the Press, below:

Since the Russian government’s appalling invasion of Ukraine, journalists on the ground have served a critical role for ordinary citizens in the region and around the world learning the full truth of what’s going on.

We join our friends at the Committee to Protect Journalists and Reporters Without Borders, who have both forcefully written about how journalists must be guaranteed safe haven and not targeted by militaries. Beyond the countless Ukrainian journalists bravely covering the invasion, there are reportedly as many as 1,000 foreign correspondents on the ground.

Two correspondents for the Daily Beast, have already been shot covering the conflict. They are thankfully OK and recovering. But now a television broadcast tower in Kyiv has reportedly been destroyed by a Russian airstrike, and a cameraman was reportedly killed while on the job yesterday. The Russian legislators also plan to criminalize “unofficial” information about the invasion this week. It will likely get worse before it gets better.

CPJ’s coverage, through the lens of press freedom, is particularly comprehensive. It just published an insightful article about “the view from Ukraine, through the eyes of local journalists,” and an alert about all of the journalists detained or threatened inside of Russia for not kowtowing to the government line. According to FT’s Moscow bureau chief Max Seddon, prosecutors are already attempting to ban independent media providers for so-called "calls to extremism" and "publishing false data about Russian soldiers."

Columbia Journalism Review’s Jon Allsop, in his always-excellent The Media Today column, has also rounded up some of the tactics the Russian government is using to stifle control its domestic media, including:

According to Meduza, an independent Russian outlet now based in Latvia, Russia’s media regulator this morning ordered news outlets to only report information about Ukraine from official sources, threatening them with fines and censorship if they spread “false information.”

In an incredibly dangerous place for reporters to do their job, press freedom will be critical. The whole world is watching.

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.