This Week in Technology + Press Freedom: July 12, 2020
Here’s what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.
Media coalition urges Supreme Court to adopt narrow interpretation of Computer Fraud and Abuse Act
The Reporters Committee, joined by 41 news organizations, filed a friend-of-the-court brief with the U.S. Supreme Court on Wednesday in Van Buren v. United States. The case marks the first time the Supreme Court has agreed to consider the scope of the Computer Fraud and Abuse Act, or CFAA, the federal computer crime statute, originally passed in the mid-1980s.
The case arose when prosecutors charged Nathan Van Buren, a police officer in Cummings, Georgia, under the CFAA for using a government license-plate database to access information allegedly for financial gain. In its October 2019 ruling on the case, the U.S. Court of Appeals for the Eleventh Circuit concluded that Van Buren “exceed[ed] authorized access” and therefore violated the CFAA when he accessed the database. While he had credentials to access the database for professional purposes, he used them for an improper purpose.
In his appeal to the Supreme Court, Van Buren argues the Eleventh Circuit’s interpretation of Section 1030(a)(2) of the CFAA is unconstitutional. That specific section of the act states that “[w]hoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer” has committed a federal crime.
The media coalition’s brief argues that the Eleventh Circuit’s broad interpretation of Section 1030(a)(2), which has also been adopted by the First, Fifth, and Seventh Circuits, criminalizes an extremely wide range of conduct, is unconstitutionally vague, and would chill First Amendment freedoms. The brief specifically notes that the broad interpretation presents particular problems for both traditional newsgathering and data journalism.
Indeed, under the Eleventh Circuit’s interpretation of “exceeds authorized access,” journalists who work with sources could face prosecution for violating the CFAA under a conspiracy theory.
The interpretation could likewise sweep in data journalists, who often engage in newsgathering practices such as “web-scraping,” which allows journalists to pull large amounts of information from websites. Under the broad interpretation of the CFAA, journalists could face liability simply for violating a website’s terms of service. (The Markup, a nonprofit technology news organization, filed an amicus brief arguing that the law cannot be construed in this fashion.)
Notably, the Second, Fourth, and Ninth Circuits, in a more recent line of cases, have adopted a narrower interpretation that defines “exceeds authorized access” under the CFAA as accessing information that one does not have authorization to “obtain or alter” at all. (In other words, those courts reject an “improper purpose” theory.) The media coalition’s brief argues that the Supreme Court should adopt the narrow approach to the law, and reject the Eleventh Circuit’s interpretation.
The Reporters Committee was represented in the matter by Paul, Weiss, Rifkind, Wharton & Garrison LLP. Kannon Shanmugam, chair of the Supreme Court and Appellate Practice Group and managing partner of the firm’s Washington, D.C., office, served as counsel of record. He was joined on the brief by Joel Johnson and Amanda Weingarten.
— Sasha Peters
Quick Hits
The U.S. Court of Appeals for the District of Columbia Circuit on Tuesday reversed and remanded the D.C. District Court’s decision in Leopold v. United States. In doing so, Judge Merrick Garland’s opinion for the court, joined by Judges David S. Tatel and Laurence H. Silberman, would increase public access to electronic surveillance court records. BuzzFeed journalist Jason Leopold and the Reporters Committee have been fighting for many years in court for access to materials related to various investigative tools authorized under the Stored Communications Act and the Pen Register Act. Reporters Committee Legal Director Katie Townsend argued the appeal.
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Multiple Seattle news organizations are challenging a subpoena from the Seattle Police Department seeking unpublished photos and video taken during a May 30 protest where six police vehicles were damaged. The news organizations claim the subpoena is a “fishing expedition” and that it places their reporters at risk. Reporters Committee attorneys recently filed a friend-of-the-court brief in support of the news organizations.
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Last week, the New York Times published a report concluding that “Black and Latino people have been disproportionately affected by the coronavirus in a widespread manner that spans the country, throughout hundreds of counties in urban, suburban and rural areas, and across all age groups.” The report is based on federal data that was made available only after the Times filed a Freedom of Information Act lawsuit against the Centers for Disease Control and Prevention for the information.
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Facebook, its subsidiary WhatsApp, and Twitter have stopped processing requests for data from Hong Kong authorities after China imposed a new national security law on the city. The companies said they are pausing their cooperation with such requests until they better understand the new law, which has raised human rights concerns.
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The U.S. Department of Justice filed a new indictment against WikiLeaks founder Julian Assange. The latest indictment adds no new charges but includes an expanded factual discussion that the government claims supports its theory that Assange conspired to violate U.S. computer hacking laws. Assange is currently being held in the UK pending an extradition hearing, which is set to resume in September.
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A recent Reporters Committee legal filing revealed that FBI agents did not follow Justice Department news media guidelines when they questioned freelance journalist Bryan Carmody during last year’s high-profile police raid of his home.
? Smart read ?
A new Pew Research Center poll shows 46 percent of Americans named local news as a major source of information about COVID-19, higher than the proportion who named the president, state politicians, or friends and family. Despite the vital role journalism has played in sharing information about the pandemic, Reporters Without Borders reported that 90 of the 193 UN member countries have restricted the rights of the press in coverage of COVID-19.
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Gif of the Week: In honor of Judge Garland’s line in Leopold, noting “The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981).”
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon, Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert, Policy Interns Abe Kenmore and Joey Oteng, and Legal Intern Sasha Peters.