This Week in Technology + Press Freedom: July 26, 2020
Members of the Technology and Press Freedom Project are preparing for a virtual conversation with journalist and author Barton Gellman. They’ll discuss his new book, “Dark Mirror: Edward Snowden and the American Surveillance State,” as well as other issues at the intersection of technology and press freedom. Have a question for Gellman about the Snowden leaks, government surveillance, or other issues? Email them to Linda Moon at lmoon@rcfp.org by Tuesday at 5 p.m. ET. The TPFP team plans to record the discussion and share it in a future newsletter.
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From July 28–Aug. 7, the Reporters Committee, the National Press Photographers Association, and the Committee to Protect Journalists will lead a series of free virtual trainings for reporters covering the 2020 national political conventions. Registration details can be found here.
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Also, the Reporters Committee is hiring a legal fellow for the 2020-2021 and 2021-2022 academic years. The fellow will work with Reporters Committee attorneys Gabe Rottman and Jennifer Nelson in administering the First Amendment Clinic at the University of Virginia School of Law.
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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.
EU high court ruling raises concerns about US surveillance practices
On July 16, the Court of Justice of the European Union, in a case called “Schrems II,” invalidated the EU-U.S. “Privacy Shield,” a framework established in 2016 to regulate the transfer of user data by U.S. companies in the EU to the U.S. for processing and storing. The decision cited U.S. surveillance practices.
The Court held that the Privacy Shield did not provide adequate protection of personal data under Europe’s data protection laws, noting the U.S. did not meet EU protection standards because U.S. surveillance activities “are not limited to what is strictly necessary.”
“Schrems I” was a case brought by Austrian citizen Maximillian Schrems against Facebook Ireland, resulting in a 2015 decision, in which the CJEU held that the company’s transfer of data to the U.S. violated EU data protection laws. Schrems I invalidated the Safe Harbor arrangement, which was, at the time, the foundational mechanism of data transfer between the EU and the U.S.
In response to Schrems I, the U.S. Department of Commerce and EU governments developed the Privacy Shield Framework in 2016. Since then, the Privacy Shield has been a principal method by which companies make EU-U.S. data transfers.
In Schrems II, however, the CJEU found that the Privacy Shield did not afford comparable protections to that of the EU. The EU’s General Data Protection Regulation requires that non-EU countries seeking to transfer data from the EU must afford privacy protections that are essentially equivalent to those required in the EU.
The Court highlighted that the Privacy Shield allows the U.S. government to collect data traveling on the internet “backbone” based on claimed executive national security authority and domestic legislation, “thus enabl[ing] interference … with the fundamental rights of the persons whose personal data is or could be transferred from the European Union to the United States.”
Specifically, the Court referred to Section 702 of the Foreign Intelligence Surveillance Act, which “does not indicate any limitations on the power it confers to implement surveillance programmes for the purposes of foreign intelligence or the existence of guarantees for non-US persons potentially targeted by those programmes.” The CJEU cited the unavailability of adequate avenues of redress for EU citizens to challenge violations of privacy rights in the U.S.
The Court also issued a new requirement that EU data protection authorities suspend or prohibit transfers to non-EU countries where GDPR standards are not met.
Privacy advocates have taken the outcome of Schrems II as further evidence of issues with U.S. data protection and have urged Congress to reform U.S. surveillance law. These reforms would limit data collection both across the Atlantic and domestically and would likely afford greater protections for journalist-source confidentiality.
— Sasha Peters
Quick Hits
A federal judge in California ruled earlier this month that Facebook’s suit against the Israeli company NSO Group can move forward. Facebook alleges that NSO’s software was used to spy on thousands of WhatsApp users, including journalists.
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A prosecutor in Polk County, Iowa, is refusing to share evidence with the defense in the trial of Des Moines Register reporter Andrea Sahouri, who was arrested while covering a protest for racial justice on May 31. Sahouri is charged with interference with official acts and failure to disperse, both misdemeanors. The prosecutor’s office has asserted that handing over evidence would delay proceedings. The Reporters Committee joined a media coalition letter urging prosecutors to drop the charges.
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U.S. Customs and Border Protection has purchased access to a commercial database that allows the agency to track a vehicle’s historical location without a warrant. A spokesperson for CBP said the database will be used to provide “assistance in locating and apprehending the subjects of criminal investigations, illicit activity, or aliens who illegally entered the United States.”
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The U.S. Open Technology Fund, a government-backed digital rights nonprofit, is expected to cancel a contract for encryption software that helps residents of repressive countries access U.S. government-funded news sources. OTF usually spends about $2 million annually for the software, which allows people in countries like Iran to access Voice of America and Radio Free Europe. OTF receives funding from the U.S. Agency for Global Media, which has recently been the focus of concerns about editorial independence — among other controversies. On July 21, a federal appeals court issued an emergency injunction blocking the removal of OTF board members.
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The U.S. government will seek to sanction Edward Snowden for failing to turn over evidence related to his memoir, “Permanent Record.” A federal judge previously ruled that Snowden violated his contracts with the CIA and National Security Agency when he failed to submit the book for pre-publication review by the government. The U.S. is seeking all profits from the book and from speeches in which Snowden used classified documents in slides.
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The New York Daily News recently reported that the New York Police Department subpoenaed the phone records of an unidentified freelance reporter in an alleged leak case. The NYPD changed its internal guidelines on obtaining phone and social media records of journalists in February, following reports that it had obtained the Twitter data of a New York Post journalist. An NYPD official reportedly said the subpoena was issued before that rule change.
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The U.S. Court of Appeals for the Ninth Circuit on Wednesday affirmed the lower court’s denial of motions filed by the ACLU, the Electronic Frontier Foundation, and the Washington Post to unseal court documents from a contempt case about alleged MS-13 gang activity on Facebook Messenger. The Reporters Committee filed a friend-of-the-court brief in the case.
? Smart read ?
This piece in the Columbia Journalism Review about what the legacy of John Lewis, the late congressman and civil rights leader, can teach the press.
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Gif of the Week: While no method is purr-fect, a reminder to use recommended tools to protect yourself and your devices from surveillance.
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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.