A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2014 Debates Continue Over Net Neutrality as FCC Nears Decision on an “Open Internet” uring the summer and fall of 2014, federal policy FCC Proposes New “Open Internet” Rules makers and regulators continued to debate the On May 15, 2014, The New York Times reported that the role of “net neutrality” in managing Internet com- FCC had voted 3-2 to seek public comment on newly-proposed munication. The principle of net neutrality is based Open Internet rules. Protecting and Promoting the Open on the idea that the government should require Internet, GN Docket No.14-28, 29 FCC Rcd 5561 (2014). The InternetD service providers (ISPs) to treat all Internet traffi c the FCC’s proposed rules would allow content providers, such same. Net neutrality principles prevent ISPs from speeding up, as Facebook or Netfl ix, to pay ISPs for guaranteed “fast lane” slowing down, or blocking the delivery of lawful Internet data service to deliver content more rapidly to Internet subscribers. based on type of content, fi nancial arrangements, users, or web The rules also prohibited ISPs from knowingly slowing down sites. In the United States, the rules for net neutrality stemmed the delivery of data from content providers who declined to from a 2010 Federal Communications Commission (FCC) pay for upgraded service. The Times reported that the FCC’s order, In re Preserving the Open Internet, 25 F.C.C.R. 17905 proposed Open Internet rules contained provisions that would (2010). The order had several provisions, including mandates prohibit ISPs from blocking lawful web content, require ISPs to for ISPs to affi rmatively disclose information about Internet explain to consumers how web traffi c is managed, and create speed, terms of use, and management practices; anti-blocking an ombudsperson position who would act as an advocate on measures that prohibited ISPs from preventing consumers from behalf of the public in discussions about Internet regulation. receiving lawful Internet content except for reasonable manage- The proposal also sought comments on whether ISPs should ment reasons; and anti-discrimination rules, which prevented be re-classifi ed as “common carrier” under Title II of the ISPs from speeding up the delivery of certain Internet content. Telecommunications Act, rather than “information service The FCC has also previously stated that its “Open Internet” providers,” which would allow for greater regulation. order would ban “pay for priority” arrangements, which the The vote to open the proposed rules to public comment Commission said would limit Internet openness by allowing passed along a party-line vote with the three Democratic-ap- large content providers like Google and Netfl ix to pay ISPs for pointed commissioners voting in favor and the two Republican- quicker delivery of content. appointed commissioners voting against the plan. Despite However, in January 2014, the U.S. Court of Appeals for the their support for seeking comment from the public, the two D.C. Circuit struck down the anti-blocking and anti-discrimina- Democratic commissioners, Jessica Rosenworcel and Mi- tion provisions of the FCC’s “Open Internet” order. Verizon v. gnon Clyburn, suggested that the proposed rule could still be F.C.C., 740 F.3d 623 (D.C. Cir. 2014). A three-judge panel held improved, the Times reported. “I support network neutrality,” that although the FCC could regulate Internet service provid- said Rosenworcel, according to the Times. “But I believe the ers, the Commission had exceeded its statutory authority with process that got us to this rule making today is fl awed. I would its 2010 order. Specifi cally, the FCC had previously classifi ed have preferred a delay. I think we moved too fast, to be fair.” broadband service providers as “information service providers” In contrast, Republican Commissioner Michael O’Rielly rather than “telecommunication carriers” for the purposes of argued that the proposed rule would exceed the FCC’s statu- regulation. As a result, the court held that the FCC could not im- tory authority. “The premise for imposing net neutrality rules pose several of the common carrier requirements for “telecom- is fundamentally fl awed and rests on a faulty foundation of munication carriers” under Title II of the Telecommunications make-believe statutory authority,” said O’Rielly. Republican Act onto the broadband Internet service providers. After the Commissioner Ajit Pai suggested that Congress was better appellate court’s decision, FCC Chairman Tom Wheeler, who suited to making decisions about net neutrality. “A dispute this was appointed by President Barack Obama in 2013, said that the fundamental is not for us, fi ve unelected individuals, to decide,” Commission would not seek to appeal the decision but would Pai said, according to the Times. “Instead, it should be resolved promote net neutrality through other means. (For more on the by the people’s elected representatives, those who choose the court of appeals decision and early reaction to the decision, see direction of government, and those whom the American people “D.C. Circuit Strikes Down FCC ‘Net Neutrality’ Rules” in the can hold accountable for that choice.” Winter/Spring 2014 issue of the Silha Bulletin.) FCC, continued on page 3 Inside This Issue Fall 2014: Volume 20, No. 1

1 Debates Continue Over Net Neutrality as FCC Nears 18 Dissemination of Hacked Online Photos Demonstrates Decision on an “Open Internet” Challenges of Digital Privacy Cover Story Privacy

6 “Drone Journalism” Presents Possibilities But Faces Legal 20 Government Surveillance Critics Target Broad Authority of Obstacles Executive Order 12333 Journalism Technology National Security

9 Supreme Court Considers Whether Facebook Posts Can 21 Tenth Circuit Dismisses Claims That News Program Constitute “True Threats” Violated Broker’s Civil Rights, Allows Defamation Claims to Proceed Online Speech Defamation 11 Attorney General Holder Leaves Problematic Legacy on 24 Law Enforcement, Tech Companies Clash on Built-In Press Rights and Civil Liberties Privacy Features Press Freedom Privacy 13 Problems Continue for News Coverage of Ferguson 25 29th Annual Silha Lecture Examines the Right to Access Shooting after Grand Jury Decision Goverment Information in the Wake of National Security

News Media Challenges and Privacy Concerns

16 Federal Investigators’ Deceptive Use of Media Raises Silha Center Events

Concerns 27 Silha Center Co-Sponsors Forum on Ethics of “Pointergate” Law Enforcement Confl icts Broadcast Silha Center Events

SILHA CENTER STAFF JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

CASEY CARMODY SILHA BULLETIN EDITOR

ALEX VLISIDES SILHA RESEARCH ASSISTANT

SARAH WILEY SILHA RESEARCH ASSISTANT

ELAINE HARGROVE SILHA CENTER STAFF

2 FCC, continued from page 1 reported that the Internet Association, an industry group that The FCC’s May 15 vote did not create any binding rules relat- represents technology and media companies with members in- ed to Internet regulations. Rather, the vote immediately opened cluding Netfl ix, Amazon, and Google, submitted comments sug- a time period for the public to comment on the FCC’s proposal, gesting that without new rules, ISPs would discriminate among which was originally targeted to last until July 15. After the fi rst different types of content. “Unlike consumers, broadband deadline, the public then had until September 10 to fi le com- Internet access providers have a horse in the race — whether ments in response to initial discussions of the proposal. The it is their affi liated content or which content provider will pay Times reported that Chairman Wheeler the most for the enhanced or prioritized access,” the Internet specifi cally stated during the Commis- Association wrote. In contrast, AT&T’s comment argued that COVER STORY sion’s hearing that the vote was seeking the government’s attempt at imposing new rules for the Internet public comment. “We are dedicated to was problematic, according to the Times. “In no other area of protecting and preserving an open Internet,” said Wheeler. the economy does the government ban voluntary market trans- “What we’re dealing with today is a proposal, not a fi nal rule. actions (here, for example, quality-of-service enhancements) We are asking for specifi c comment on different approaches to specifi cally in order to prevent those with superior resources accomplish the same goal, an open Internet.” from offering better services to their own customers,” AT&T

FCC Receives Signifi cant Response to Net Neutrality “Americans are speaking loud and clear. Proposal During the comment period, The Washington Post’s Soraya They want an Internet that is a platform Nadia McDonald reported on June 4 that the FCC had received for free expression and innovation, where more than 45,000 comments on June 2 alone, which crashed the FCC’s online commenting system. McDonald suggested the best ideas and services can reach that the surge in comments probably resulted from a June 1 consumers based on merit rather than commentary by comedian John Oliver on his show, “Last Week based on a fi nancial relationship with a Tonight,” that airs on HBO. In his 13-minute commentary, Oliver gave net neutrality a comedic spin, but also encouraged viewers broadband provider.” to submit comments in support of net neutrality rules on the FCC’s web site, which was displayed on the screen during the — Sen. Patrick Leahy (D-Vt.) conclusion of the segment. The Post reported that the FCC was having trouble managing the amount of traffi c it received the following day, with issues remaining unresolved until the early evening. The “Last Week Tonight” video can be seen at https:// wrote in its submitted comments. On August 15, the FCC re- www.youtube.com/watch?v=fpbOEoRrHyU. leased a public notice extending the reply comment period from On June 18, Bloomberg BNA reported that Sen. Patrick the originally scheduled deadline of September 10 to September Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.) introduced the 15. Online Competition and Consumer Choice Act. The legislation On September 2, the Sunlight Foundation, a nonpartisan would require the FCC to ban fi nancial deals between ISPs nonprofi t advocating for open government, released a report on and content providers that would allow for priority service of the content of about 800,000 public comments from the initial content delivery. The bill also would prohibit ISPs from priori- commenting period. Using an automated computer analysis, tizing the traffi c of their own content, applications, or services. the organization determined that less than one percent of the “Americans are speaking loud and clear,” Sen. Leahy said in a comments were “clearly opposed to net neutrality.” The remain- June 17 statement. “They want an Internet that is a platform ing 99 percent of comments advocated for the FCC to adopt for free expression and innovation, where the best ideas and net neutrality principles or did not take a defi nitive stance one services can reach consumers based on merit rather than based way or the other. The Sunlight Foundation found that at least on a fi nancial relationship with a broadband provider.” The bill 60 percent of the comments were some type of form letter had three co-sponsors, including Rep. Henry Waxman (D-Calif.), that commenters had used from an organized campaign. The Rep. Anna Eshoo (D-Calif.), and Sen. Al Franken (D-Minn.). No Foundation noted that although form letters made up the major- Republicans chose to co-sponsor the legislation. Congressional ity of comments, “this is actually a lower percentage than is aides also told BNA that the bill should be viewed as a political common for high-volume regulatory dockets,” which suggested message rather than legislation that would actually be enacted. that many individuals were making an effort to personalize On July 15, The New York Times reported that the FCC had their submitted comments. The organization also noted that at received approximately 780,000 comments from the public on least 200 comments were from law fi rms working on behalf of the proposed rules prior to the initial comment deadline ranging their clients. The Sunshine Foundation’s report and the data from a single line of text to entire legal briefs on the proposed it used for analysis can be found at http://sunlightfoundation. rules. Because of the number of comments, the FCC extended com/blog/2014/09/02/what-can-we-learn-from-800000-public- the initial deadline by three days. The Times also reported that comments-on-the-fccs-net-neutrality-plan/. a sample of the comments submitted to the FCC seemed heavily Several large technology companies staged online protests skewed toward preserving the principles of net neutrality. Many on September 10, just days before the end of the second round of the comments argued that the FCC’s proposed rules did not of comments on the FCC’s proposed Internet rules. According go far enough. The Times story also noted that the standard- to a September 10 article by online technology magazine The form nature of many of the submissions indicated that several Verge, Netfl ix, Tumblr, and Kickstarter, among several others, of the comments appeared to be from different interest groups’ displayed “spinning wheels” on their web sites. The wheels sug- popular “get-out-the-comments” advocacy efforts encouraging gested that the web site was taking a long time to load, which the public to participate in the debate. the companies argued would be a regular occurrence if the FCC Internet content providers and ISPs also provided com- did not adopt net neutrality regulations. The protesting con- ments to the FCC before the extended July deadline. The Times FCC, continued on page 4 3 FCC, continued from page 3 FCC Considers Hybrid Approach to Net Neutrality tent providers also provided information to web site users that On October 30, The Wall Street Journal reported that encouraged them to submit a comment to the FCC or to contact Wheeler was considering alternatives to the FCC’s May pro- their local congressperson. posal. Wheeler’s new proposal aimed to split ISPs’ broadband On September 17, National Public Radio reported that at services into two distinct categories. The fi rst category would the close of the September 15 deadline, the FCC had received be a retail service, which would involve consumers paying ISPs approximately 3.7 million comments on the proposed Open for Internet access. Under this category, the FCC would exer- Internet rules. The number of comments for the proposed rules cise less regulatory control, which would allow ISPs to provide was greater than any other previous FCC rule proposal. The consumers with specialized Internet services or to experiment comments on net neutrality beat the previous record set by the with pricing based on the amount of Internet data consumers public’s outcry after Janet Jackson’s “wardrobe malfunction” use. The second category is a back-end service, which focuses during the 2004 Super Bowl halftime show. The FCC received on ISPs’ relationships with content providers. The FCC would approximately 1.4 million messages from the public after the classify ISPs as “common carriers” for the purposes of back-end 2004 incident. “Unlike consumers, broadband Internet FCC Considers Regulating Mobile Broadband under Net Neutrality Principles access providers have a horse in the race In a September 15 article, The New York Times reported — whether it is their affi liated content or that the FCC was holding roundtable discussions to determine whether net neutrality regulations should include cellular In- which content provider will pay the most ternet services accessed on mobile devices. The Commission’s for the enhanced or prioritized access.” 2010 Open Internet Order as well as the new May 2014 proposal targeted only ISPs that provided wired Internet services to cus- — The Internet Association’s Public Comments tomers. Mobile Internet providers had previously been exempt due to the technical limitations of their services. The Times On Proposed FCC Net Neutrality Rules wrote that Wheeler had told attendees at the annual convention of CTIA – The Wireless Association, the largest trade group of the mobile phone industry, that “there have been signifi cant changes in the mobile marketplace since 2010.” The Times re- services between broadband Internet companies and content ported that in 2014, nearly 120 million Americans had subscrip- providers. Reclassifi cation as a “common carrier” under Title tions to the fastest mobile broadband services as compared to II of the Telecommunications Act would allow the FCC to only 200,000 subscribers in 2010. Wheeler said that any new regulate fi nancial deals between an ISP and Internet content proposals regulating the Internet would need to account for the providers. changes in how Americans access Internet data. However, the The Wall Street Journal reported that Wheeler’s developing FCC’s discussions at the roundtable meetings were not part of hybrid plan stemmed from proposals submitted by the Mozilla any offi cial policymaking processes. Rather, the meetings were Foundation, a non-profi t that advocates for Internet openness, merely advisory discussions for members of the Commission. and the Center for Democracy and Technology. The organiza- In the same story, Gene Kimmelman, the president and tions believed that the advantage of the hybrid approach to net chief executive of consumer advocacy organization Public neutrality would mean that the FCC was not completely revers- Knowledge, told the Times that Wheeler’s comments were “a ing previous decisions to deregulate the broadband Internet shot across the bow” for the mobile wireless Internet industry. industry, which might place the agency “on fi rmer legal ground.” “We’ve sensed for a while the F.C.C. [sic] is looking to beef it up However, an FCC spokeswoman did not explicitly confi rm on the wireless side,” Kimmelman told the Times. “There’s less that the new proposal was the leading idea at the Commission. of a difference between wireless and wireline than there was Rather, she told The Wall Street Journal that the agency was fi ve years ago.” still weighing all possibilities related to reclassifi cation options. However, Meredith Atwell Baker, a former FCC commission- After news of the possible plan leaked, The Washington Post er and chief executive of CTIA – The Wireless Association, told reported in an October 31 story that both consumer groups and the Times that wireless Internet companies should be treated ISPs expressed concern over the hybrid proposal. Jonathan differently because they rely on the public spectrum, which has Banks, a public policy executive for USTelecom, told the Post limited capacities as compared to the opportunities to continu- that an FCC decision to reclassify services between ISPs and ally build more wired Internet infrastructure. “The growth of content providers as a “common carrier” relationship under smartphones and LTE [the fastest wireless broadband Internet] Title II would draw a legal challenge. “I think they’ll certainly — and the constant change in our ecosystem — is the clear- hear from the broadband industry that, from our perspective, est evidence that we should retain a mobile-specifi c approach, Title II is Title II and we would feel compelled to challenge any because it has worked so well for consumers,” said Baker. sort of Title II in court,” Banks said. In an interview for a September 24 Bloomberg BNA story, In an October 31 press release, Public Knowledge President Consumer Federation of America Research Director Mark Kimmelman also expressed concern that the hybrid approach Cooper also argued that the FCC should consider technologi- could still allow for fi nancial deals between ISPs and content cal differences between wired Internet and wireless mobile providers for better services. “[P]olicy is not made through broadband before imposing net neutrality rules on the wireless leaked articles. Reports of allowing inappropriate paid deals be- industry. “Could the FCC do a better job on network neutral- tween ISPs and [content] providers is worrisome,” Kimmelman ity for wireless? Certainly,” said Cooper. “Should they more said in the press release. “As the FCC clarifi es how their Title II fully recognize the role of mobile communications in the 21st framework works, it is critical that the Chairman explains how century communications network? Absolutely. But don’t tell me it will protect the core tenets of an open [I]nternet that con- mobile is a substitute for wireline. It’s not.” sumers expect and businesses require. This includes, but is not

4 limited to, explaining what sort of prioritization is allowed and programs. Rather, the regulations would ensure that all Internet if allowed, why that level of prioritization is not harmful.” traffi c would continue to be treated as equal. “We’ve had net neutrality the entire history of the Internet,” Sen. Franken told President Obama, Republican Critics Weigh In on Net Crowley. “This is about re-classifying something so that it stays Neutrality the same. This would keep things exactly the same that they’ve During much of 2014, President Obama remained largely been.” absent from the debates over net neutrality regulations. How- In a November 10 interview with The Verge, Columbia Law ever, on November 10, the White House released an online video School Professor Tim Wu, who coined the term “net neutrality” statement in which Obama called on the FCC to reclassify ISPs in 2003, also agreed with the President’s proposal to reclassify as “common carriers” under Title II of the Telecommunications ISPs as “common carriers” under Title II. “I think [Obama’s Act in order to enforce net neutrality rules. “In plain English, I’m asking [the FCC] to recognize that for most Americans, the Internet has become an essential part of everyday communica- “If [the FCC] stay[s] in the middle, tion and everyday life,” Obama said in the video. In addition to they’re kind of naked right now — there’s the video, the White House released a written statement from no one there with them. It’s not like the President that called for the FCC to establish “bright-line” rules that would prohibit ISPs from blocking legal online con- Congress is gonna help out. Congress tent and from intentionally slowing or speeding up the delivery is going to be against any version of of Internet content, require increased transparency about In- ternet services, and ban paid prioritization for content delivery. the net neutrality rule, [and] the tech The written statement also called for the rules to be applied to companies are against any compromise. mobile broadband Internet services. Sometimes, the middle can end up being In both the video and written statements, Obama acknowl- edged that the FCC had the sole authority to decide on net neu- a very dangerous place.” trality rules but stressed that the Commission should consider the public comments on the issue. “The FCC is an independent — Tim Wu, agency, and ultimately this decision is theirs alone. But the pub- Professor, Columbia Law School lic has already commented nearly four million times asking the FCC to make sure that consumers, not the cable companies, get to decide what sites they use,” Obama said in the video state- proposal] was bold and courageous and, in some ways, just ment. “Americans are making their voices heard and standing obvious,” Wu said. “But sometimes, it takes someone who’s not up for the principles that make the Internet a powerful force deeply embedded in the game to say this is the obvious thing for change. As long as I’m President, that’s what I’ll be fi ghting to do.” He suggested that the FCC would be best suited to fully for, too.” Obama’s video and written statements are available at choose a side in the net neutrality debate because trying to http://www.whitehouse.gov/net-neutrality. please everyone might prove to be challenging, especially after The response to Obama’s call for the FCC to reclassify ISPs Obama indicated his support for reclassifi cation. “If [the FCC] as “common carriers” under Title II of the Telecommunications stay[s] in the middle, they’re kind of naked right now — there’s Act was mixed. Among the critics of the President’s suggestion no one there with them,” Wu said. “It’s not like Congress is for reclassifi cation were Republican Congressional leaders. In a gonna help out. Congress is going to be against any version of November 10 statement, House Speaker John Boehner (R-Ohio) the net neutrality rule, [and] the tech companies are against any said that the President’s proposed net neutrality regulations compromise. Sometimes, the middle can end up being a very would stifl e Internet innovation as well as hinder the economy. dangerous place.” “It’s disappointing, but not surprising, that the Obama admin- Although Obama’s support for reclassifi cation is a major step istration continues to disregard the people’s will and push for forward for the implementation of net neutrality regulations, more mandates on our economy,” Speaker Boehner said in the The Washington Post reported on November 14 that the presi- statement. “An open, vibrant Internet is essential to a growing dent’s statement might have stalled FCC negotiations over its economy, and net neutrality is a textbook example of the kind possible hybrid proposal. The story explained that the FCC had of Washington regulations that destroy innovation and entrepre- been meeting with technology companies, consumer advocates, neurship.” and representatives from the telecommunications industry to In a November 13 op-ed in The Washington Post, Sen. Ted garner support for the hybrid plan. However, many groups with- Cruz (R-Texas) also criticized the President’s proposal for drew from the meetings upon Obama’s call for strict rules. reclassifi cation. He suggested that regulations on Internet As the Bulletin went to press, the FCC had not yet made a businesses would slow entrepreneurial efforts in technology decision on how to implement new Internet regulations. The industries and harm consumers. “[N]et neutrality is Obamacare Post’s November 14 story reported that the Commission had for the Internet,” Sen. Cruz wrote. “It would put the government initially wanted to vote on whether it should adopt new regula- in charge of determining Internet pricing, terms of service and tions during its December meeting, but that the FCC announced what types of products and services can be delivered, leading to that a decision would not come until 2015. Reuters reported on few choices, fewer opportunities and higher prices.” November 21 that the primary reason for the delay in the FCC’s However, Sen. Al Franken (D-Minn.) pushed back against decision making was that Wheeler wanted to ensure that any Sen. Cruz’s claims that the FCC’s establishment of net neutral- fi nal Commission decision could withstand a legal challenge, ity rules would create new regulations on the Internet. In a which will likely come regardless of the direction the Commis- November 16 interview, Sen. Franken told Candy Crowley on sion chooses to take. CNN’s “State of the Union” that “[Cruz] has it completely wrong CASEY CARMODY and he just doesn’t understand what this issue is.” Sen. Franken argued that net neutrality rules would not implement any new SILHA BULLETIN EDITOR

5 “Drone Journalism” Presents Possibilities But Faces Legal Obstacles

ome journalists looking for a initiative on how media organizations fi lm. The FAA will not require COAs, new or cheaper way to gather can use drones safely and effectively. In which may signal the beginning of a less information have begun to a June 23, 2014 press release, CNN senior rigid approach to authorizing drone use. look to the skies. Advances in vice president David Vigilante said the But the FAA emphasized that the fl ights remotely controlled aerial de- project is intended to “accelerate the pro- would take place in controlled set envi- vices,S known as “drones” or “unmanned cess for CNN and other media organiza- ronments and the drones were subject aerial vehicles,” give journalists new pos- tions to safely integrate this new tech- to extensive safety approval. “We are sibilities for covering stories and captur- nology into their coverage plans.” The thoroughly satisfi ed these operations will ing images. With initiative plans to report its fi ndings to not pose a hazard to other aircraft or to JOURNALISM drones already the FAA in hopes of promoting journalist- people and property on the ground.” The TECHNOLOGY being used by the friendly regulations by the agency. administration said it was still consider- U.S. government ing more than 40 in warfare, border exception appli- protection, ecological surveying, and “Restricting drone use for those with cations by other law enforcement, private citizens and legitimate reasons in the public interest private entities. companies are hoping to take advantage — like journalists fi lming protests — Secretary of Trans- of drone capabilities. But citizens and portation Anthony journalists hoping to use drones to gath- but allowing others that are not — like Foxx told report- er information will need to navigate an surveying people’s land or making a ers on September uncertain legal environment. Some states 25, that “[t]oday’s have passed laws regarding drones, but movie — [that] doesn’t make sense.” announcement is a these laws vary widely and some regulate signifi cant mile- only government drone use. Meanwhile, — Professor Ryan Calo, stone in broadening the Federal Aviation Administration University of Washington commercial use” of (FAA) is responsible for federal drone drones. regulation policy but has not yet issued The exemptions drone-specifi c regulations. Recent litiga- Meanwhile, the FAA has aggressively are particularly signifi cant because they tion has also questioned whether the pursued those using private drones lay out for the fi rst time the parameters FAA has authority to regulate some uses without authorization. A spate of unap- that the FAA will require a private drone of drones. In sum, drones offer tantaliz- proved drone fl ights over public crowds, operator to observe. According to Sept. ing possibilities for journalists but such such as at sporting events during the 25, 2014 article on DroneJournalism. use remains legally problematic. summer and fall of 2014, prompted the org, these exemptions are the FAA’s fi rst FAA to clarify its regulations. Citing indication to private operators of “what Media, Researchers and Advocates safety concerns posed by unauthor- can fl y, when it can fl y, when it can fl y, Explore “Drone Journalism” ized drones fl ying over crowded areas, how it can be fl own, and who can fl y it.” Despite the legal obstacles, journal- on Oct. 27, 2014, the FAA published a The pervasive restrictions of the excep- ists and researchers have been exploring public notice expanding the existing ban tions require, among many other things, the potential of drone journalism. The on private fl ights of unmanned vehicles that the drones operate only in a “sterile” Schools of Journalism at the Univer- over sporting events with more than environment, with no unauthorized per- sity of Missouri and the University of 30,000 attendees. The regulation would son within 1000 feet and receive advance Nebraska have each established drone require approval from both the FAA and permission from local FAA authorities. journalism research programs. Ne- the licensed broadcaster of the sporting The drones can also only be operated in braska’s Drone Journalism Lab launched event in order to authorize the drone daylight with a line of sight between the in November 2011 with a mission to fl ight. Violation of the regulation could operator and the drone. provide resources for students to build carry criminal prosecution, including up Although they were tailored specifi cal- and test drones for journalistic use as to one year of jail time. According to a ly to the six fi lm companies’ operations, well as to research the emerging ethics Nov. 9, 2014 article by The Washington the FAA’s requirements could present and strategies of drone journalism. In Post’s Craig Whitlock, the notice is “the insurmountable obstacles if applied to July 2013, both programs received cease- fi rst time the agency has explicitly stated drone journalism. Journalists hoping to and-desist letters from the FAA requiring that reckless drone pilots could wind up capture newsworthy public events live, them to stop all outdoor drone fl ights. behind bars.” Pepperdine Law Profes- for instance, would likely collide with Each stopped drone testing and applied sor Gregory McNeil wrote in an Oct. 31, provisions on both advance permission for a Certifi cate of Authorization (COA) 2014 article for Forbes that “the ban is and proximity to unauthorized per- from the FAA, the authorization legally allegedly for national security purposes, sons. The University of Missouri Drone required for public entities to oper- which means that arguable justifi ca- Journalism Program expressed similar ate a drone. Both applications are still tion may even trump future safe uses of concerns after it applied for a COA, pending, and the programs have had to drones — even by the media.” stating in an Aug. 21, 2013 blog post that refocus efforts on more theoretical and On Sept. 25, 2014, the FAA announced it expects the restrictions imposed by a policy research rather than experiment- the fi rst private drone use to receive COA “will make ‘drone journalism,’ as ing with actual drone fl ights. authorization, The agency granted regu- we’ve come to know it, all but impos- CNN and Georgia Institute of Tech- latory exceptions to six fi lm companies sible.” Because drones can fl y “only nology also announced a joint research to use drones to record television and within a predetermined, relatively small, 6 contiguous space,” journalists’ “ability to Meanwhile, a coalition of media ArsTechnica for a Nov. 18, 2014 article. If travel and respond to events (key attri- companies fi led an amicus brief with the FAA is restricting drone use for those butes of fi eld reporting) will be entirely the NTSB in opposition to FAA regula- “with legitimate reasons in the public curtailed.” Requiring a “sterile” environ- tion while the Pirker case was pending interest — like, journalists fi lming pro- ment may make the operation of drones appeal before the National Transporta- tests — but allowing others that are not in public, and particularly in crowded, tion Safety Board (NTSB). The coalition, — like surveying people’s land or making urban spaces, impracticable. including the Associated Press, The New a movie — [that] doesn’t make sense.” York Times, Reporters Committee for However, Holland & Knight attorneys Journalists Face Evolving, Freedom of the Press and many others, Jameson B. Rice, Joel E. Roberson, and Uncertain Legal Landscape argued that the FAA’s current categorical Christine N. Walz wrote in a December The FAA is the only federal agency ban on drone use for newsgathering is 10 news alert post on the fi rm’s web currently regulating drones. In 2012, Con- unconstitutional. The amici argued that, site that members of the U.S. House of gress passed the FAA Modernization and contrary to FAA statements that media Representatives Committee on Trans- Reform Act, under which the FAA must use is the type of “business purpose” portation and Infrastructure’s Subcom- “provide for the safe integration of civil that allows drone regulation, “[t]he FAA’s mittee on Aviation were pushing FAA unmanned aircraft systems into the na- position is untenable as it rests on a offi cials to adopt regulations of drones. tional airspace system” by Sept. 30, 2015. “On numerous oc- After this act, the FAA has maintained casions, members that until it has regulations in place, all “If you have a news organization of Congress voiced commercial drone use in U.S. airspace hovering over a protest and videoing, concern that the needs to be explicitly permitted by the that’s really valuable for the First lack of a regula- agency. Any domestic drone use, private tory framework or public, must apply for and receive Amendment.” of [drones] in the FAA approval. United States was The FAA has reiterated that its mis- — Professor Margot Kaminski, causing many com- sion is air safety. In the Nov. 14, 2013 Yale Law School panies to conduct statement on the establishment of six their research drone test sites around the country, the and development FAA emphasized that the testing was fundamental misunderstanding about overseas,” the attorneys wrote. “[T]his meant to explore how drones can be in- journalism. News gathering is not a ‘busi- was described as stifl ing innovation and tegrated safely into the national airspace ness purpose.’ It is a First Amendment creating a competitive disadvantage.” and not “the scope of data that can be right.” According to the attorneys, FAA offi cials collected” by drones. Despite the intro- In addition to challenging the FAA’s explained that although the Adminis- duction of several bills, Congress has not authority, the amici also challenged its tration planned to release some minor passed legislation governing drone use methods. The brief argued the FAA’s proposals governing the private use of since the 2012 FAA Act. letters constituted an “ad hoc cease- drones before the end of 2014, a fi nal However, in March 2014, an admin- and-desist enforcement process,” which comprehensive rule would not likely be istrative law judge found that the FAA created “an impermissible chilling effect in place until 2017 or later. does not have the authority to regulate on the First Amendment newsgathering Although the FAA’s implementation of “model” drone use. In Huerta v. Pirker, rights of journalists.” drone regulations has been slow mov- Docket No. CP-217 (NTSB Mar. 6, 2014), On November 18, 2014, the NTSB ing, many state legislatures have debated available at http://www.ntsb.gov/legal/ reversed the decision in Pirker, rul- the proper scope of drone use. Fifteen pirker/Pirker-CP-217.pdf, the judge dis- ing that the FAA did have authority to states have passed laws restricting drone missed a $10,000 FAA fi ne for recklessly regulate model drones. Huerta v. Pirker, use and 29 more have had drone bills operating a drone. The judge found that Order No. EA-5730 (NTSB Nov. 18, 2014), introduced. However most of these laws model drones are not “aircraft” subject available at http://www.ntsb.gov/legal/ address drone use by law enforcement, to FAA regulation. pirker/5730.pdf. The court acknowledged often imposing warrant requirements Other drone proponents seized on the amici making First Amendment in some instances where police used the Pirker decision as an opportunity arguments on behalf of drone use, but drones to gather evidence. Only fi ve to advocate for unregulated drone use. declined to reach the more complex con- states have laws that regulate private In response to letter demanding it cease stitutional questions. Instead, the case drone use. These are the laws with which drone operations, Texas Equusearch, a could be decided on a narrower issue: prospective drone journalists would non-profi t search-and-rescue group, chal- model drones are “aircraft” for the pur- need to comply. lenged the FAA’s authority to regulate poses of federal aviation law, and thus Louisiana, Texas and Wisconsin have their drone use. On July 18, 2014, the are within the regulatory jurisdiction of established criminal laws for various U.S. Court of Appeals for the D.C. Circuit the FAA. The decision can be appealed, uses of drones, while Idaho and Oregon dismissed the challenge, but on the basis but no appeal had been fi led as the Bul- have created civil causes of action. The that the FAA’s letter had no legal author- letin went to press. Texas law broadly criminalizes private ity. Tex. Equusearch Mounted Search University of Washington professor drone use but includes a list of excep- and Recovery Team v. Fed. Aviation and drone expert Ryan Calo argued that tions for acceptable private use. Accept- Admin.,Case No. 14-1061 (D.C. Cir. July the case left important First Amend- able uses include surveying utilities, 18, 2014). Although the court declined ment questions unanswered. If the FAA scholarly research, real estate evalua- to rule on the FAA’s broader authority to is restricting some people’s use while tion and several others. The Wisconsin regulate, it essentially rendered the agen- allowing others, they will need to justify law takes a different approach, making cy’s tactic of issuing cease and desist these distinctions, particularly where it a misdemeanor offense to record a letters to drone users legally powerless. they burden newsgathering, Calo told Drones, continued on page 8 7 Drones, continued from page 7 “there’s really not all that much out there so broad that they would likely prohibit that shows how the First Amendment a news station from using a drone to person with a drone where they have a and privacy law are supposed to inter- gather information for their traffi c report “reasonable expectation of privacy.” The sect,” Kaminski believes the Texas law is absent written consent of everyone on Louisiana law, the most recent state law, “likely to end up with a ruling that says the road.” passed in July 2014, makes it a crime to this doesn’t pass First Amendment mus- According to Vice staff writer Jason photograph or record a person’s property ter.” According to a June 3, 2013 article Koebler in an April 28, 2014 article, the via drone without their consent. by the Electronic Frontier Foundation’s Louisiana law is “by far the most strin- The Idaho and Oregon laws do not Dave Maass, the Texas law “manages to gent anti-drone law passed in the United criminalize use, but rather allow private mess up both sides of the table by allow- States so far.” Brenden Shulman, a drone plaintiffs to sue over privacy or trespass ing cops to use drones without a warrant law expert, told Vice that the law may violations involving drones. The Idaho while also hampering the press’ ability to violate the First Amendment because the law specifi cally and solely targets the use drones in newsgathering.” law “seems to discriminate against using fruits of surveillance, prohibiting the The Idaho law, which specifi cally bans a specifi c technology, namely drones, publicizing of images or video of pri- drone surveillance of “farm, dairy, ranch rather than target the offensive conduct vate property recorded by a drone. The or other agricultural industries,” may vio- that is of concern, which appears to be Oregon law focuses on drone use more late the First Amendment rights of ani- the surveillance of private areas.” The generally, allowing property owners to mal rights groups, which the law seems law’s sponsor, state Sen. Dan Claitor sue a person who operates a drone less specifi cally targeted to restrict. Efforts to (R-Baton Rouge), responded to other than 400 feet above their property. restrict drone use in this way may be in lawmakers’ First Amendment criticisms, These laws pose signifi cant challenges response to the work of journalists like saying that journalists “believe they have for journalists seeking to use drones. Will Potter, who raised $75,000 through a noble purpose but [a] noble purpose Although they vary in their approach to the online fundraising site Kickstarter does not override my property rights.” drone regulation, each could potentially to purchase drones to surveil and report Because the FAA continues to broadly restrict some newsgathering activity. on large farms and ranches. According ban drone use, there have been no re- Signifi cantly, none of these laws con- to a July 22, 2014 article on AllGov.com, ports of enforcement of these state laws. tains an exception for newsgathering or Potter invested in drones because more If no one is prosecuted under the laws, reporting. traditional undercover reporting from it is unlikely that any plaintiff would Several of these laws have prompted inside such facilities has been outlawed have standing to challenge the laws for objections based on First Amendment by so-called “ag-gag” laws. (For more on an alleged constitutional defi ciency. In grounds. For instance, although the the confl ict between journalism and “ag- addition, parts of state drone laws may Texas law provides many exceptions for gag” laws, see “States Consider Banning be preempted by federal drone laws, specifi c drone uses, none would allow Undercover Recording at Agricultural meaning states could not enforce those media to use drones for newsgather- Operations” in the Summer 2011 issue of parts of the laws. But assuming the FAA ing. Margot Kaminski, a scholar at Yale the Silha Bulletin.) According to Timothy will eventually release regulations allow- Law School, believes that the Texas law B. Lee in a June 18, 2013 Washington ing private drone use, these state laws, may be struck down for violating the Post article, there is a “good chance” which vary greatly in states that have First Amendment. “If you have a news that the law’s provisions “violate the enacted them, will govern individuals’ organization hovering over a protest and First Amendment rights of animal rights use of drones. For the foreseeable future, videoing cops beating protesters, that’s advocates.” But the Idaho law also bans drone journalism remains in an environ- really valuable for the First Amend- recording with drones more broadly. The ment of multi-faceted legal uncertainties. ment,” she told The Washington Post in ACLU’s Allie Bohm wrote in an April 24, a June 18, 2013 article on behavior that ALEX VLISIDES 2013 article that, “Idaho’s restrictions are would likely violate the Texas law. While SILHA RESEARCH ASSISTANT

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8 Supreme Court Considers Whether Facebook Posts Can Constitute “True Threats” n Dec. 1, 2014, the U.S. Su- the lyrical form of the statements did Ninth Circuit adopted in United States v. preme Court heard oral ar- not make her take the threats any less Cassel, 408 F.3d 633 (9th Cir. 2005), and guments in Elonis v. United seriously. A jury convicted Elonis on four the objective listener standard utilized States, which considered of the fi ve charged counts of transmit- by the majority of the other circuits, how courts should defi ne ting threatening communications, and including the Third Circuit. The majority Owhat types of statements can constitute sentenced him to 44 months imprison- of circuits currently reject the subjective a “true threat.” True threats occupy one ment followed by three years supervised intent requirement and hold that state- of the few categories of expression not release. Elonis has already served more ments that are reasonably construed as safeguarded by the than three years in prison for his convic- threats by the listener are not given First First Amendment. tion. Amendment protection and are punish- ONLINE The U.S. Supreme Elonis appealed the conviction to able. However, the Ninth Circuit, as well SPEECH Court fi rst carved the United States Court of Appeals for as the highest state courts in Massachu- out a limited the Third Circuit, arguing that the trial setts, Rhode Island, and Vermont, require exception to First Amendment protec- court had incorrectly instructed the proof of the speaker’s subjective intent tion for true threats of physical violence to threaten before in Watts v. United States, 394 U.S. 705 the government can (1969). “Online and electronic communications, punish a speaker. The case presented the question of which eliminate the infl ections and Elonis’ argu- whether the convictions for threatening expressions that give meaning to words, ments for a subjec- another person in violation of 18 U.S.C. § tive intent standard 875(c), which prohibits individuals from reduce speakers’ ability to detect and was largely based transmitting interstate communications correct misimpressions.” on the last time the that contain a threat to injure others, U.S. Supreme Court addressed the true required a jury to fi nd that the defendant — Brief of Anthony Elonis subjectively intended his statements threat doctrine in to be understood as threats, or if it Before the U.S. Supreme Court Virginia v. Black, is enough to show that a “reasonable 538 U.S. 343 (2003). person” would regard the statement as (For more on the threatening. Legal commentators have jury on the standard of what constitutes Black decision, see “Virginia v. Black” in suggested that the Court’s decision in the a true threat. United States v. Elonis, the Summer 2003 issue of the Silha Bulle- case will play a signifi cant role in future 730 F.3d 321 (3d Cir. 2013). The trial tin.) In Black, the Court upheld a Virginia cases that determine what constitutes a court judge had told the jury to use an law banning threats expressed through true threat in online communication. The objective reasonable person standard to cross burning. However, the Court decision could also have implications for determine a true threat. The jury instruc- struck down a portion of the law that music lyrics. tions read, “a statement is a true threat made burning a cross itself prima facie The case arose from Anthony Elonis’ when a defendant intentionally makes proof of intimidation and held that the postings on Facebook, directed at his ex- a statement in a context or under such state must prove an intent to intimidate wife, federal law enforcement offi cials, circumstances wherein a reasonable existed. The Court defi ned true threats and elementary school children, among person would foresee that the statement as “statements where the speaker means others. For example, Elonis posted on would be interpreted by those whom to communicate a serious expression Facebook in 2010: “There’s one way to the maker communicates the statement of an intent to commit an act of unlaw- love you but a thousand ways to kill you. as a serious expression of an intention ful violence to a particular individual or I’m not going to rest until your body is a to infl ict bodily injury.” Elonis argued group of individuals.” Elonis posited that mess, soaked in blood and dying from all that instead the government must prove the decision in Black required that the the little cuts.” On Dec. 8, 2010, federal that he subjectively intended to threaten prosecution prove that a defendant sub- authorities arrested Elonis for posting another person. jectively intended to threaten the victim. the threatening Facebook messages and The Third Circuit upheld the convic- Furthermore, Elonis’ brief argued that charged him with violating 18 U.S.C. § tion on Sept. 19, 2013, reasoning that the objective listener standard “would 875(c). limiting the defi nition of true threats to impose criminal liability on a vast array During the trial in federal district only those statements where the speaker of fi rst-person revenge fantasies that court in Philadelphia, Elonis argued that subjectively intended to make a threat have always been staples of popular he never intended the posts to be threats. would fail to protect individuals from culture.” His brief highlighted that such Rather, he has argued that he was writing “the fear of violence” and the “disruption sentiments have been commonplace in lyrics that imitated violent and disturb- that fear engenders,” because it would rap music and that however hateful or ing lyrics in rap music. Elonis testifi ed protect speech that a reasonable speaker offensive, those songs are entitled to at trial that rapper Eminem particularly would understand to be threatening. The full First Amendment protection. Elonis infl uenced him. However, Elonis’ ex-wife U.S. Supreme Court agreed to hear the argued that the lyrics he posted are no testifi ed during the trial that she took the case and granted certiorari on June 16, different. statements seriously. She testifi ed, “I felt 2014. Several free speech advocate groups like I was being stalked. I felt extremely The U.S. Supreme Court’s review of fi led amicus briefs with the Supreme afraid for mine and my children’s and my the decision will settle a split between Court, including the Reporters Commit- families lives.” She also explained that the subjective intent standard that the Facebook, continued on page 10 9 Facebook, continued from page 9 complicating attempts to determine a tedly an exercise of his free speech tee for Freedom of the Press, the Student person’s intent in posting something or rights — crosses the line into ‘true threat’ Press Law Center, and the American Civil a ‘reasonable’ person’s interpretation of territory. The Court doesn’t have to say Liberties Union. In its brief, the ACLU ar- it. Context becomes further complicated specifi cally where the line is; it just has gued that proof of subjective intent was when a so-called threat is a lyric from a to say that Elonis crossed it.” required to ensure that protected speech musical genre that often privileges highly The U.S. Supreme Court heard oral is not chilled by the fear of criminal pros- exaggerated, confrontational and violent arguments on Dec. 1, 2014. According to ecution. Another amicus brief, fi led by rhetoric.” The legal scholars also noted Supreme Court reporters and watchers, the Marion B. Brechner First Amendment that there is a growing subset of cases the justices appeared concerned about Project, sought to provide the Court with that has emerged in which the act of writ- the online context of the speech in ques- the history and conventions of rap music. ing violent rap lyrics itself has become a tion, as well as the potential of a broad The organization highlighted rap music’s crime when they are uploaded to social rage of speech being criminalized includ- “heavily stigmatized artistic and often media sites and interpreted by authorities ing ill-advised remarks by teenagers over political” nature. as “true threats.” social media and rap lyrics. Chief Justice On the prosecution side, several John Roberts read victims’ rights organizations, includ- “Context [of social media posts] aloud rap lyrics ing the National Center for Victims of from artist Emi- Crime and the Criminal Justice Legal becomes further complicated when a nem’s song “‘97 Foundation, among others, fi led amicus so-called threat is a lyric from a musical Bonnie and Clyde” briefs. In its brief, the National Network genre that often privileges highly in which the rapper to End Domestic Violence argued that describes dumping “requir[ing] proof of a subjective intent exaggerated, confrontational and violent his wife’s body in to threaten will make it more diffi cult to rhetoric.” a lake. The Chief protect victims of abuse from threats of Justice asked U.S. Justice Department violence made by their current and for- — Law Professors Clay Calvert, Erik Nielsen and attorney, Michael mer intimate partners, who increasingly Charis Kubrin use easily accessible but sophisticated Dreeben, whether technology to track their victims and to Eminem could threaten them wherever they are.” have prosecuted. The online context in which Elonis Lawyers are urging the Supreme Dreeben replied that Eminem would not made the statements was also an impor- Court to provide guidance to lower be prosecuted because of the different tant factor in the case. Elonis argued that courts on how to identify true threats context and that because “everyone an objective listener standard was inad- in the context of social media. In a knows Eminem is an entertainer.” Some equate when dealing with the atmosphere March 28, 2014 article in Pennsylvania justices were also skeptical of Elonis’ of social media sites. Elonis’ brief argued newspaper The Morning Call, Robert argument that his remarks were intended that “online and electronic communica- Richards, director of the Pennsylvania as a form of therapy and the use of a tions, which eliminate the infl ections and Center for the First Amendment at Penn higher subjective intent standard. “This expressions that give meaning to words, State, commented on the complexity of sounds like a roadmap for threatening reduce speakers’ ability to detect and determining whether statements made your spouse and then getting away with correct misimpressions.” In addition, on social media constitute true threats. it,” Justice Samuel Alito said during oral Elonis maintained that modern media “Problems in identifying the nature of arguments. Justice Ruth Bader Ginsburg allowed personal refl ections intended for statements made via social media arise also seemed concerned with the subjec- a small audience or no audience to be from the inability to judge body language tive intent requirement. “How does one viewed widely by people who are unfa- or infl ection. Unlike a letter or an email prove what’s in somebody else’s mind?” miliar with the context of the statements that is addressed specifi cally to a person, she asked. and thus may interpret the statements posts on social media may simply be In a Dec. 3, 2014 New Yorker article, much differently than the speakers left for anyone to fi nd and sought out or James Grimmelmann, a law professor intended. discovered accidentally by the subject,” at the University of Maryland, said that Many legal commentators have ob- Richards said. “People use [social media] he expects the Court to take a narrow served that the Supreme Court has never to say all kinds of things but they may not position that will not signifi cantly change considered a threats case involving either be directing it to a particular individual. the current interpretation of how jurors online social media or messages con- They’re just venting their feelings.” evaluate threats. “I did not see any en- veyed in a controversial form of artistic However, other commentators have thusiasm among the judges to make new expression like rap music. In a May 24, suggested that the Court’s future deci- rules for social media,” Grimmelmann 2014, Forbes article, law professors Clay sion may be less than clear. In an Oct. added. A ruling is expected in early 2015. Calvert, Erik Nielson, and Charis Kubrin 8, 2014 post on FindLaw’s U.S. Third explained that “information posted to Circuit blog, attorney Mark Wilson wrote SARAH WILEY social media sites is often disseminated that “Elonis is free to post to Facebook SILHA RESEARCH ASSISTANT and displayed in ways that users do not for ‘therapeutic’ reasons, but there will control or even understand, profoundly be a point where those posts — admit-

10 Attorney General Holder Leaves Problematic Legacy on Press Rights and Civil Liberties n Sept. 25, 2014, The New 2012 story about a foiled terrorist plot to Critics have also pointed to Holder’s York Times reported that bomb a Yemeni airliner. That same year, handling of efforts to subpoena New President Barack Obama The Washington Post also reported the York Times journalist James Risen as a announced during a White Department of Justice had named Fox troubling aspect of the attorney general’s House press conference News reporter James Rosen as a co- legacy. Risen became the focus of the Othat U.S. Attorney General Eric Holder DOJ after he published classifi ed infor- conspirator during a leak investigation had chosen to resign from his position. of a State Department offi cial in order mation about a failed Central Intelligence The Times noted that Holder’s resigna- to obtain e-mails from Rosen’s Google Agency (CIA) plan to undermine Iran’s tion did not come as a surprise as he had account. nuclear program in his 2006 book, State previously said At the time of the revelations, Silha of War. The DOJ has claimed that the that he planned to Professor of Media Ethics and Law and source of Risen’s information was Jeffrey PRESS leave the position Silha Center Director Jane Kirtley told Sterling, a former CIA employee who was FREEDOM before the end of charged under the 2014. Obama ap- Espionage Act for pointed Holder to the position in 2008, “You really have to go back to the Nixon allegedly disclosing and commentators have suggested that administration. I’m aghast to see how confi dential infor- Holder will leave a mixed legacy. Many relentlessly this administration and the mation. The DOJ have applauded Holder’s work on civil subpoenaed Risen, rights, voting rights, and racial justice, Justice Department have been pursuing claiming that it but suggested that his handling of First [leaks].” needed the journal- Amendment and surveillance issues has ist’s testimony to been problematic. — Professor Jane Kirtley, pursue the pros- In particular, Holder’s critics focused Silha Center Director and ecution of Sterling. on the Department of Justice’s (DOJ) However, Risen Silha Professor of Media Ethics and Law unprecedented use of the Espionage Act has repeatedly of 1917, 18 U.S.C. § 793, to pursue leakers refused to disclose of government secrets. In a Nov. 25, 2014 the Pittsburgh Tribune Review in a May any information about the sources of his article for the Columbia Journalism 14, 2013 story that the DOJ’s investiga- information. Review, Kelly O’Brien pointed out that tions were alarming. “You really have to The DOJ’s aggressive pursuit of Holder’s Justice Department has used the go back to the Nixon administration,” Risen’s testimony under Holder has led World War I-era law as a basis to pros- Kirtley said. “I’m aghast to see how to a lengthy court battle over whether ecute former government employees and relentlessly this administration and the Risen can claim a journalist’s privilege contractors accused of leaking govern- Justice Department have been pursuing to withhold information. The Supreme ment information. “The fact that outgoing [leaks].” The DOJ’s actions ultimately Court declined to hear Risen’s case in Attorney General Eric Holder has pros- led to the agency revising its guidelines June 2014, which allowed a decision from ecuted more people under the Espionage in July 2013 for seeking information the U.S. Court of Appeals for the Fourth Act than all previous attorneys general from journalists during investigations. Circuit ordering Risen to testify to stand. combined is an inescapable legacy of his (For more on these instances of reporter The New York Times had previously time in offi ce,” wrote O’Brien. He argued surveillance, see “Justice Department Se- reported in May 2014 that Holder had that the aggressive prosecution of leakers cretly Subpoenas Associated Press Phone told journalists that “no reporter who is will, and was likely intended to, make it Records” in the Winter/Spring 2013 issue doing his job is going to jail” in reference more diffi cult for journalists to uncover of the Silha Bulletin, and “Department to Risen. (For more information on the government misconduct. of Justice Revises Guidelines for Inves- background of Risen’s case, see “Update: The numerous prosecutions under the tigating Journalists” in the Summer 2013 Supreme Court Declines to Hear Re- Espionage Act have not only threatened issue.) porter’s Privilege Cases” in the Summer journalists’ sources but also journalists In discussing the DOJ’s confl icts with 2014 issue of the Silha Bulletin, “Report- themselves, O’Brien contended. “With journalists under the existing attorney ers Struggle to Claim Privilege to Avoid the Espionage Act, Holder chose a tool general, Freedom of the Press Founda- Testifying About Confi dential Sources” in that could potentially be very dangerous tion Executive Director Trevor Timm the Fall 2013 issue, and “Judges Rebuke to journalists, because it is vague enough suggested in a September 26 post on the Government on Leak Prosecutions” in to criminalize all kinds of information organization’s blog that Holder had creat- the Summer 2011 issue.) dissemination,” O’Brien wrote. In a ed many problems for the press. “Holder However, The Washington Post re- September 25 editorial, The New York will leave behind a complex and hotly ported on October 10, 2014 that Assistant Times also noted that the DOJ’s pursuit debated legacy at the Justice Department U.S. Attorney James Trump had hinted of leakers during Holder’s tenure had on many issues, but one thing is clear: he that the government intended to sub- led “prosecutors [to] seize[] phone and was the worst Attorney General on press poena Risen again during Sterling’s trial email [sic] records of journalists who freedom issues in a generation, possibly beginning in 2015. The Post also noted were doing their jobs.” In 2013, the Times since Richard Nixon’s John Mitchell that Trump did not indicate what kind of reported that the Department of Justice pioneered the subpoenaing of reporters penalties the government would seek if secretly seized the phone records of and attempted to censor the Pentagon Risen refused to testify. Risen has previ- Associated Press reporters who wrote a Papers,” Timm wrote. Attorney General, continued on page 12

11 Attorney General, continued from page 11 “Rosemary Award,” named for Richard publish leaked classifi ed information, … Nixon’s secretary who erased many Wa- ously indicated that he has no intention approval of the NSA’s telephone metadata tergate tapes, for worst open government of testifying about his sources. program, [and] approval of the use of performance by a federal agency. (For Timm’s September 26 post reported the state-secrets privilege to shield the more on Holder’s promises of transpar- that the Justice Department’s targeting secrecy of classifi ed national security ency, see “Obama’s Policies Promote of Risen led to a petition of more than programs.” (Stone was the 2006 Silha Openness; Some Secrecy Persists” in the 100,000 people and statements from 20 lecturer. For more information about Spring 2009 issue of the Silha Bulletin.) Pulitzer Prize winners criticizing the his lecture, see “Geoffrey Stone Predicts agency’s actions. He argued that the First Amendment DOJ’s pursuit of Risen’s testimony and “On a range of other terrorism issues will Protect Journal- ists from Prosecu- his likely refusal has potentially set the . . . Holder has defended the legality stage for a dangerous situation once tion at 21st Annual Holder has left offi ce. “How the Justice of programs and positions that civil Silha Lecture” in the Department could pursue contempt of libertarians deplore.” Fall 2006 issue of court charges against Risen but keep him the Silha Bulletin.) On Nov. 8, 2014, out of jail was unknown,” Timm wrote. — Geoffrey Stone, “But now [that] Holder is stepping down, The New York Edward H. Levi Distinguished Professor of Law, the Justice Department is not obligated Times reported that to abide by his promise.” University of Chicago Law School Obama announced Others have also criticized Holder’s the nomination of record on transparency and freedom Loretta E. Lynch, a Refl ecting on Holder’s resignation of information. In a Sept. 26, 2014 post federal prosecutor from Brooklyn, N.Y., in a Sept. 25, 2014 article for The Daily on FOIA Rundown, a blog focused on to replace Holder as attorney general. Beast, law professor and member of the government transparency issues, CJ Prior to the announcement, however, President’s Review Group on Intelligence Ciaramella noted that Holder showed Timm offered advice for the new head and Communication Technologies Geof- little commitment to ensuring that of the Justice Department in his Septem- frey Stone contended that Holder had government agencies were transparent ber 26 post. “The next attorney general, been one of the most liberal members of despite claims upon entering the offi ce whoever it is, will have a lot of issues on Obama’s administration for many civil to reform federal bureaucracy in favor of his or her plate,” wrote Timm. “But better rights causes, such as equal rights for openness. “DOJ rubberstamped [federal] respecting the rights of reporters and the gays and lesbians as well as challeng- agencies’ frivolous redactions and with- First Amendment should be at the top of ing voter-ID laws. “On a range of other holdings, forced requestors to sue as a that list.” terrorism-related issues, however, Holder matter of practice, and dragged out court As the Bulletin went to press, U.S. has defended the legality of programs proceedings to the annoyance of judges Senate confi rmation hearings for Lynch’s and positions that civil libertarians and plaintiffs,” Ciaramella wrote. In 2011 nominations had not yet begun. deplore,” Stone wrote. “These include, and 2012, the National Security Archive, among others, approval of investigations a private research institute at George Silha Bulletin Editor Casey Carmody and prosecutions of government employ- Washington University that focuses on contributed to this story. ees and contractors who leak classifi ed government secrecy, chose Holder’s ALEX VLISIDES information, approval of the issuance of Justice Department for the ignominious SILHA RESEARCH ASSISTANT subpoenas directed at journalists who

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12 Problems Continue for News Coverage of Ferguson Shooting after Grand Jury Decision n Nov. 24, 2014, St. Louis proceedings of grand jury are supposed to The Washington Post reported in its County Prosecuting At- be secret, but not before another Twitter October 23 story that both offi cials from torney Robert McCulloch user captured a screenshot of the Tweet the St. Louis County prosecutor’s offi ce announced that a grand jury that he submitted to the Post. Spokesman and Wilson’s legal team denied being had chosen to not indict Ed Magee told the Post that the prosecu- the source of the grand jury leaks. In an policeO offi cer Darren Wilson for fatally tor’s offi ce was “looking into the matter.” October 24 post on the Gateway Journal- shooting Michael Brown, an unarmed However, the following day, the Associ- ism Review’s web site, Southern Illinois 18-year-old African American. The Aug. ated Press (AP) reported that Nichols had University School of Journalism Director 9, 2014 shooting William Freivogel NEWS MEDIA sparked scores of “This was a no-fl y zone targeted at speculated that protests in Fergu- the leaks could CHALLENGES son, Mo., a suburb the media and it appears it was not possibly have come of St. Louis. Clashes for safety purposes. If indeed the air from offi cials in the between demonstrators and local police restrictions were only to keep the media U.S. Department of authorities drew the attention of several Justice. Freivogel local and national new organizations, out, it is a constitutional violation of the noted that many of which sought to cover the tension be- freedom of the press. the stories based tween a predominantly black community on the information with law enforcement authorities who — Lee Rowland, leaks “were written were primarily white. During the cover- by the newspapers’ age of the Ferguson protests in August, American Civil Liberties Union Staff Attorney Justice Depart- several journalists were arrested during ment reporters in law enforcement attempts to manage the Washington.” He large and increasingly violent protests. observed that The The arrests of journalists prompted sev- told investigators that her Twitter account New York Times “attributed [its] infor- eral press advocacy organizations to call had been hacked. The prosecutor’s offi ce mation to ‘government offi cials briefed for Ferguson law enforcement authorities told the AP that they did not have any on the federal civil rights investigation’ to recognize the First Amendment rights evidence to “suggest information in the — not the state criminal investigation.” of news organizations to gather news. post was credible.” The St. Louis Post- Freivogel suggested that members of Con- (For more information about the arrests Dispatch also reported on October 30 gress who had been briefed on the federal of journalists in Ferguson, see “Journal- that McCulloch released a statement that investigation potentially could have been ists Arrested During Protests in Missouri; an investigation into the Twitter post in- the source of the leaks. Journalist Abroad Face Dire Situations” dicated that Nichols account was hacked In an October 23 story, CBS News in the Summer 2014 issue of the Silha and that she was not connected to anyone cited an unnamed Department of Justice Bulletin.) on the grand jury. offi cial who complained that Attorney However, law enforcement offi cials Reports of false information on Twitter General Eric Holder was critical of the continued to struggle with attempts to were not the only challenges that pros- news accounts of the grand jury proceed- manage media during the course of the ecutors faced in ensuring the secrecy ings. Holder called the leaks a “selective grand jury proceedings that began on Aug. surrounding the grand jury proceedings. fl ow of information” that were “inap- 20, 2014. News organizations were also On October 23, The Washington Post propriate and troubling” during agency criticized for how they handled the cover- reported that a variety of information meetings, according to CBS News. St. age throughout the several months after provided to the grand jury that supported Louis Public Radio reported the same day Brown’s death. Wilson’s account of events had been that St. Louis County Executive Charlie leaked to several different news outlets, Dooley released a statement criticizing Leaks about Grand Jury Proceedings including the The New York Times, the St. the leaks of the grand jury proceedings Create Problems for Government Louis Post-Dispatch, and The Washington to news outlets. “The orchestrated leaks Offi cials Post. The Post reported that many of the regarding the work of the grand jury re- On October 1, The Washington Post leaks focused on Wilson’s testimony be- viewing the Michael Brown shooting are reported that the St. Louis County pros- fore the grand jury in which he defended unbelievable and certainly do not inspire ecutor’s offi ce was investigating accusa- his actions during the August 9 shooting. confi dence in this process or the offi ce of tions of grand jury misconduct because Wilson’s testimony indicated that he had the prosecuting attorney,” Dooley said in information about the proceedings was al- feared for his life before he fatally shot the statement. legedly posted on Twitter. Several Twitter Brown. On October 22, the Post-Dispatch However, St. Louis Public Radio also users alerted the prosecutor’s offi ce after reported on the contents of the offi cial au- reported that former St. Louis County Po- seeing another user, who was identifi ed as topsy of Michael Brown that prosecutors lice Chief Tim Fitch had told a local radio Susan Nichols, post a message that said gave to the grand jury. The Post-Dispatch station that offi cials might have leaked she was a friend of a member of the grand also published photos of the full report, information to prepare the public for jury who had explained that evidence which was stamped “not for secondary the possibility that the grand jury would against Wilson was not enough to warrant release.” The St. Louis newspaper did not choose to not indict Wilson. “[The leaks an arrest. Nichols quickly deleted the post disclose how it obtained the report. are aimed] to start getting some of the after several users alerted her that the facts out there to kind of let people down

Ferguson, continued on page 14 13 Ferguson, continued from page 13 explaining how the autopsy report did not The AP story also recounted that slowly,” Fitch said, according to St. Louis defi nitively suggest that Brown had tried local police offi cials had said on several Public Radio. to reach for Wilson’s gun. occasions that the only purpose for the However, the editor of the Post- fl ight restrictions was for safety. Brian Pathologist Challenges Quotes in Dispatch, Gilbert Bailon, told the Wash- Schellman, a St. Louis County police de- News Accounts of Autopsy Report ington Post on October 24 that Melinek’s partment offi cer, had told NBC News on Others also criticized the way news quotes were correct. “We think that we August 12 that aircrafts were in danger of organizations covered the grand jury reported it accurately,” Bailon said. “She’s being hit by gunfi re. “On Sunday night our proceedings. In particular, Dr. Judy gotten some … blowback from some police helicopter came under fi re on 3 or Melinek, an independent pathologist who people saying that [the Post-Dispatch’s 4 occasions, so we requested that the FAA the Post-Dispatch quoted in its October explanation of Brown’s death] is not put up a no-fl y zone for the safety of pilots 22 story on Brown’s autopsy reports, ob- correct. If she feels that there are other who would be in the area,” Schellman jected to the way the newspaper reported possibilities for what happened, that’s told NBC News. However, the telephone her comments from an interview. The recordings that the Post-Dispatch quoted Melinek as say- AP obtained indi- ing the autopsy report “supports the fact “If other law enforcement agencies cated that an FAA that this guy is reaching for the gun, if he follow the example of media relations manager said that has gunpowder particulate material in set in Ferguson, freedom of the press, the descriptions of the wound.” The newspaper added that shots fi red at the she said, “If he has his hand near the gun guaranteed by the First Amendment, will police helicopter when it goes off, he’s going for the of- be further eroded.” were unconfi rmed fi cer’s gun.” The newspaper also reported “rumors.” that Melinek described how the bullet — Dana Neuts, The AP re- wounds indicated that Brown was not in President, Society of Professional Journalists ported that one a surrendering position as he was shot, FAA offi cial at the and the fatal head wound indicated that Administration’s Brown might have been lunging toward her prerogative.” Malone wrote in the command center had asked FAA au- Wilson. Other news organizations, such as Gateway Journalism Review’s October thorities in Kansas City whether the fl ight the AP and The Washington Post, picked 31 post that the Post-Dispatch later added restrictions were actually intended as up the Post-Dispatch’s report as well as an editor’s note clarifying that “Melinek safety precautions. “So are [the police] Melinek’s quotes. had said the autopsy ‘supports Offi cer protecting aircraft from small-arms fi re or In an October 22 appearance on Darren Wilson’s statement that brown something,” the Administration command MSNBC’s “The Last Word,” Melinek told was reaching for the gun but that other center offi cial asked in the recordings, host Lawrence O’Donnell that the Post- scenarios are possible.’” according to the AP. “Or do they think Dispatch had taken her statements out they’re just going to keep the press out of St. Louis County Police Targeted of context by not acknowledging that there, which they can’t do.” Media in “No-Fly Zone” Request several other scenarios could have ex- Upon learning of the AP’s revela- On November 2, the AP reported that plained Brown’s wounds. “What happens tions, press advocacy organizations were it had obtained audio recordings through sometimes is when you get interviewed critical of the fl ight restrictions imposed a Freedom of Information Act request and you have a long conversation with around Ferguson. On November 4, Lee that indicated local law enforcement a journalist, they’re going to take things Rowland, an American Civil Liberties authorities’ requests to the Federal Avia- out of context. I made it very clear that Union staff attorney, told CNN that the tion Administration (FAA) for a no-fl y we only have partial information here,” fl ight restrictions hindered the press’ zone around Ferguson was intended to Melinek said. “I’m not saying that Brown ability to inform the public. “It’s very limit media coverage of protests. The FAA going for the gun is the only explanation. troubling to the ACLU and it should be imposed fl ight restrictions on 37 square I’m saying the offi cer said he was going extremely troubling to anyone in the miles surrounding the Ferguson area for the gun and the right thumb wound public who wants to get news about what during 12 days in August. Local police supports that.” Melinek and O’Donnell their government is up to,” Rowland said. offi cials had previously stated that they also discussed alternative scenarios “This was a no-fl y zone targeted at the made the requests for safety purposes that did not include Brown reaching for media and it appears it was not for safety rather than to hinder media coverage. Wilson’s gun but could still be consistent purposes. If indeed the air restrictions The AP reported that the day after the with the fi ndings in the autopsy report. were only to keep the media out, it is a fl ight restrictions were imposed, FAA Roy Malone wrote in an October 31 constitutional violation of the freedom of offi cials had trouble with managing how post for the Gateway Journalism Review the press.” commercial airlines and police helicop- that news organizations responded to In a November 7 press release, Society ters might operate in the no-fl y zone Melinek’s criticisms differently. Malone of Professional Journalists (SPJ) National while prohibiting others. In a recorded noted that The Washington Post quickly President Dana Neuts also criticized St. telephone conversation, an FAA manager added an editor’s note to its online ver- Louis County law enforcements attempts explained that the St. Louis County Police sion of the story about the Brown autopsy at using fl ight restrictions to hinder news “fi nally admitted [the requested order] re- explaining that Melinek had said her organizations. “If other law enforcement ally was to keep the media out.” The story quotes were out of context. The Post also agencies follow the example of media also noted that a manager in the FAA’s provided a longer story on October 28 relations set in Ferguson, freedom of the Kansas City offi ce said that law enforce- about Melinek’s challenges to the state- press, guaranteed by the First Amend- ment offi cials “did not care if [the Admin- ments that were attributed to her in the ment, will be further eroded,” Neuts said istration] ran commercial traffi c through Post-Dispatch. The Post reported that in the press release. “SPJ is ready and this [temporary fl ight restriction] all day Melinek had sent an e-mail clarifying and willing to work with law enforcement long. They didn’t want media in there.” 14 agencies across the country to ensure the us the same dozen burning buildings and In a December 4 post for the Gate- public’s right to know, but law enforce- same dozen burning cars for hours and way Journalism Review, Terry Ganey ment agencies must be willing to meet us hours, leaving the impression of a whole criticized national media coverage of halfway.” town consumed in an orgy of arson.” Ferguson more broadly. He argued Garfi eld explained that the vast majority that news organization accounts since News Organizations Criticized over of the Ferguson area remained peaceful Brown’s death on August 9 focused more Ferguson Coverage after the grand jury announcement. on reporting a compelling narrative In a November 25 story, Washington However, Baltimore Sun television rather than factual news. “Journalists are Post media critic Erik Wemple wrote that critic David Zurawik told Garfi eld during supposed [to be] unbiased and blind to one of news organizations’ biggest critics an interview that cable news organiza- their own prejudices. They are required of the coverage of the Ferguson grand tions deserved some credit for their cov- to be guided by facts,” Ganey wrote. “But jury proceedings was St. Louis County in the case of the Prosecutor Robert McCulloch. “The most death of Michael signifi cant challenge encountered in “Journalists are supposed [to be] Brown, it seemed this investigation has been the 24-hour unbiased and blind to their own as though the view news cycle and its insatiable appetite for of many journalists something, for anything to talk about, fol- prejudices. They are required to be was that the police lowing closely behind with the non-stop guided by facts. But in the case of the offi cer would have rumors on social media,” McCulloch said to prove he was in- during the November 24 press conference death of Michael Brown, it seemed as nocent.” announcing the grand jury’s decision. Mc- though the view of many journalists was Ganey noted that Culloch also criticized news organizations that the police offi cer would have to the news organiza- for releasing secret grand jury informa- tions focusing on tion because it could have infl uenced prove he was innocent.” such a narrative eyewitness accounts of the shooting. created expecta- Wemple pushed back against the — Terry Ganey, tions for viewers prosecutor’s criticisms of news organiza- Gateway Journalism Review contributor and readers that tions, however. He noted that McCulloch Wilson would be in- himself conceded that most witnesses erage of the protests. “Cable was there. dicted, which ultimately never occurred. appearing before the grand jury testifi ed Cable bore witness to [the protests],” “The problem with the narrative was that prior to news organizations publishing the Zurawik said. “You know, the networks it failed to take into account the facts of autopsy report and accounts of Wilson’s didn’t. So give [cable news outlets] credit the case, and how the law authorizes a testimony, which meant that media re- for that. They were there. Most of them police offi cer to use lethal force in certain ports would not have affected witnesses. committed major resources. They had the circumstances,” Ganey wrote. “In the end, “So no harm done then?” wrote Wemple. cameras there, and the cameras showed after listening to some 60 witnesses, the “The grand jury got to hear its testimony us a lot.” Zurawik also commended grand jury concluded that Darren Wilson free of leaked information, and the public Cooper for his efforts at providing effec- acted legally within his authority and did got an early and accurate summation of tive reporting throughout the evening what many other police offi cers would do the case.” by consistently asking correspondents in the same circumstances.” Wemple suggested that McCulloch’s to provide contextual information about However, Ganey argued that the focus claims more likely stemmed from his their reporting. of national attention on Brown’s death frustration over being blamed for several In contrast, Slate senior writer Josh had raised important points about distrust of the disclosures about the grand jury Voorhees criticized CNN’s coverage of the between the black community and the proceedings. Kimberly Kindy, one of the Ferguson protests in a November 25 post, police, focused on discussions about the co-writers of The Washington Post’s story noting that the cable channel’s report- economic struggles of African Americans, about the leaked testimony of Wilson, ers focused on talking about themselves. and prompted Missouri Governor Jay told Wemple that it was “pretty clear that “On-camera interviews with protesters Nixon to create a commission that will [the offi cials from the prosecutor’s offi ce] or community leaders were scarce at study “the root causes of Michael Brown’s were frustrated with the leak stories. best, as was confi rmation of many of death.” But Ganey suggested that national People were asking if the leaks were com- the rumors that were mentioned on air, news organizations will ignore these ing from them.” ranging from anecdotes about gunshots to important developments in the future. News organizations also faced criti- one about a protester reportedly having “Since the national media has moved on, cisms for their coverage of the protests a heart attack,” Voorhees wrote. “In their the commission’s work will be explained after the announcement that the grand stead were a half-dozen CNN report- and covered by local reporters,” Ganey jury chose to not indict Wilson. In a ers wandering the streets, recounting wrote. “On Facebook, Lisa Eisenhauer, a November 25 episode of WNYC’s “On what was personally happening to them [Post-Dispatch] editor, posted that long the Media,” host Bob Garfi eld criticized and their colleagues. Among the many after the live trucks and celebrity anchors cable news organizations for not provid- exchanges between the CNN contributors have pulled out, the newspaper will be ing larger context to depictions of violent was Van Jones and Don Lemon talking telling the world what happened and why protests. “T.V. has a checkered history of about the latter’s gas mask not being on because ‘this is our community.’” letting de-contextualized images defi ne tight enough, and reporters warning other events,” Garfi eld said. Although some reporters to stay safe. Jake Tapper, clad televisions hosts, such as CNN’s Anderson CASEY CARMODY in a CNN jacket, narrated as he walked Cooper attempted to provide context, SILHA BULLETIN EDITOR toward a fl aming trashcan to confi rm that Garfi eld explained that “it didn’t stop it was, in fact, a fl aming trashcan.” CNN, or its competitors, from showing

15 Federal Investigators’ Deceptive Use of Media Raises Concerns ecent Drug Enforcement stored in her cellphone and by consent- access the trove of personal information Agency (DEA) and Federal ing to the use of that information to aid that we store in our devices.” On October Bureau of Investigation (FBI) in … ongoing criminal investigations,” 17, the AP reported that Facebook’s chief actions have raised concerns according to the Post. security offi cer, Joe Sullivan, sent a letter regarding undercover opera- Arquiett argued in her complaint that to DEA Administrator Michele Leonhart, Rtions on the Internet. In one case, a DEA she suffered “fear and great emotional seeking assurances from the DEA that it agent used information gathered from an distress.” She also claimed that she was would not operate any more fake profi le arrestee’s cell phone to create a Face- put in danger because Sinnigen’s fake pages as part of ongoing investigations. book page for investigative purposes. In Facebook page made some people think “Facebook has long made clear that law another situation, FBI offi cials posed as that she was willfully cooperating in Sin- enforcement authorities are subject to Associated Press nigen’s drug investigation. The page had these policies,” Sullivan wrote. “We re- LAW (AP) journalists several photos of Arquiett, including one gard DEA's conduct to be a knowing and ENFORCEMENT and created a fake showing her in a bra and underwear. Sin- serious breach of Facebook's terms and CONFLICTS news story in order policies.” to track a suspect. “The technologies we have now are The AP also News organizations, press advocacy reported that the organizations, and privacy activists have enabling all sorts of new uses. There are Justice Department criticized the law enforcement agencies’ a whole bunch of new things that are is currently review- actions. ing the DEA case. possible, and we don’t have the rules for In a statement, DEA Uses Woman’s Information them yet.” Justice Department to Create Fake Facebook Page for spokesman Brian Investigation — Neil Richards, Fallon told the AP On Oct. 7, 2014, The Washington Professor, Washington University School of Law that the “review is Post reported that the Justice Depart- ongoing, but to our ment said that it will review federal law knowledge, this enforcement practices regarding the nigen also posted photographs of her son is not a widespread practice among our use of fake social media profi les follow- and niece, who are both minors. Accord- federal law enforcement agencies.” ing an incident in which a federal agent ing to an October 8 story in the Syracuse, used a woman’s photographs to create N.Y. Post-Standard, Arquiett believed the FBI Agents Impersonate Associated a Facebook account under her name as page would be removed from Facebook Press to Capture Bomb-Threat part of a drug investigation. Sondra Ar- after Sinnigen had admitted that he cre- Suspect quiett of Watertown, N.Y., sued the Drug ated the page in her name in 2010. How- On Oct. 28, 2014, the Seattle Times Enforcement Administration (DEA), al- ever, the Post-Standard reported that reported that the FBI acknowledged it leging intentional infl iction of emotional Facebook had only removed the false created a fake AP news article in order distress and that the agent’s actions profi le page citing a “violation of commu- to lure a suspect into downloading secret deprived her of several Constitutional nity standards” on Oct. 7, 2014 after news software onto his computer. According rights under the First, Fifth, and Eighth broke about the case. Arquiett also did to documents the Seattle Times obtained Amendments. Arquiett v. U.S., Timothy not indicate whether she had contacted from the Electronic Frontier Foundation Sinnigen, 7:13-cv-752 (N.D.N.Y. 2014). Facebook prior to the page’s removal. (EFF), a digital rights advocacy organi- In her complaint, Arquiett contended In an Oct. 6, 2014, BuzzFeed News ar- zation, the FBI’s investigation began in that her pictures were retrieved from her ticle, privacy experts expressed concern the spring 2007 when Timberline High cellphone after she was arrested in July with the DEA’s investigation tactics. “The School in Lacey, Wash. received bomb 2010 on drug charges. During the arrest, technologies we have now are enabling threats by e-mail, on paper and on a law enforcement agents seized Arquiett’s all sorts of new uses,” said Neil Richards, bathroom wall, which caused the school cell phone, among other personal items. a professor at the Washington University to be evacuated. When local police were A month later, Timothy Sinnigen, a DEA School of Law. “There are a whole bunch struggling to identify the source of the agent, used personal information from of new things that are possible, and we threats, they asked the FBI’s fi eld offi ce Arquiett’s phone to create a Facebook don’t have rules for them yet.” Elizabeth in Seattle for assistance. account in her name as a way to identify Joh, a professor at the University of Cali- FBI agents determined that if the other suspects. fornia, Davis, School of Law, was critical suspect clicked on an online link that The Post reported that U.S. Attorney of the argument that Arquiett consented. was embedded in computer malware, Richard S. Hartunian explained in court “That’s a dangerous expansion of the they could pinpoint his location. In the papers that Sinnigen had used Arquiett’s idea of consent, particularly given the documents from the EFF, the agents information to create a Fakebook profi le amount of information on people’s cell discussed sending the suspect an e-mail page, falsely posed as her and posted phones,” she said. in the style of the Seattle Times that con- images from her phone on the page. Mariko Hirose, staff attorney for the tained the headline “Technology savvy Sinnigen also admitted that he had used New York Civil Liberties Union, told The student holds Timberline High School the account to send a “friend request” to Washington Post on October 7 that “this Hostage.” However, in a November 6 let- a wanted fugitive. However, Hartunian case illustrates the importance of digital ter to the editor of The New York Times, argued that Arquiett “implicitly consent- privacy and identity, and the possibility FBI Director James Comey admitted that ed by granting access to the information of abuse when law enforcement is able to an agent, posing as a reporter for the 16 AP, began conversing with the suspect And how do they prevent innocent read- On Nov. 10, 2014, Gary Pruitt, presi- online. The agent asked the suspect to ers from clicking on these links?” Timm dent and CEO of the AP, sent a letter to review a draft of an article on the bomb asked. Attorney General Eric Holder and Comey threats in order to be sure that the sus- In a November 7 statement, Car- demanding assurances from the Justice pect was portrayed accurately. When the los Lauria, the Committee to Protect Department that the FBI will never again suspect clicked on the link to the fake Journalists’ senior program coordinator impersonate a member of the news me- draft, malware was secretly downloaded for the Americas, was also critical of dia. Pruitt also demanded to know who to his computer, which enabled agents the FBI’s decision to create fake news authorized the 2007 impersonation, what to track his location and eventually ar- stories. “We are greatly concerned by process was followed for its approval, rest him. The 15-year-old suspect later the news that an FBI agent posed as how the requirements to impersonate the pleaded guilty to making bomb threats. a journalist and call for an immediate media are different from seven years ago, In a written statement, Frank Montoya review of the policies that led to this ac- and whether such operations are still be- Jr., the FBI's special agent in charge in tion,” said Lauria. “Having federal agents ing carried out. “In stealing our identity, Seattle, had told the Seattle Times on pose as journalists not only threatens the the FBI tarnishes that reputation, be- October 28 that the technique is used “in littles the value of very rare circumstances.” “In stealing [the AP’s] identity, the FBI the free press rights Several news organizations and public enshrined in our fi gures were critical of the FBI’s investi- tarnishes that reputation, belittles the Constitution and gation techniques after the Seattle Times value of the free press rights enshrined endangers AP jour- report. On October 30, Senate Judiciary nalists and other Chairman Patrick Leahy (D-Vt.), sent in our Constitution, and endangers AP newsgatherers a letter to U.S. Attorney General Eric journalists and other newsgatherers around the world,” Holder expressing concerns about the around the world.” Pruitt wrote. “This tactic. “When law enforcement appro- deception corrodes priates the identity of legitimate media the most funda- — Gary Pruitt, institutions, it not only raises questions mental tenet of a of copyright and trademark infringement Associated Press President and CEO free press — our but also potentially undermines the in- independence from tegrity and credibility of an independent government control press,” wrote Leahy. and corollary re- On Nov. 7, 2014, Kathleen Carroll, the credibility of a news organization — its sponsibility to hold government account- AP’s executive editor told The New York most prized asset — but also erodes the able.” The Justice Department had not Times that “the [FBI] agent knew that perceived independence of the media.” provided a public response before the the AP was a credible organization, or In response to objections from press Bulletin went to press. he would have not said ‘I am a reporter organizations and the public, FBI Direc- The Society of Professional Journal- for The AP.’ And by using that cred- tor Comey defended the practice in ists (SPJ) also sent a letter to the U.S. ibility, he tarnished it.” Aly Colón, the his November 6 letter to The New York Department of Justice on Nov. 3, 2014 Knight Professor in Journalism Ethics at Times. Comey wrote that the “tech- stating that the FBI’s tactics hindered Washington and Lee University, agreed nique was proper and appropriate under journalists’ ability to uphold their with Ms. Carroll in the Times article. Justice Department and FBI guidelines responsibilities as granted by the First “This certainly undermines the position at the time. Today, the use of such an Amendment. “The FBI’s impersonation of of all journalists who are trying to do unusual technique would probably the Associated Press is a clear violation their work as an independent source of require higher level approvals than in of the First Amendment, and its impact information,” Mr. Colon said. 2007, but it would still be lawful and, in reaches far beyond AP. The FBI under- Press advocacy organizations con- a rare case, appropriate.” Comey went mined the credibility of all journalists demned the FBI’s actions as well. In an on to write, “every undercover opera- and news organizations by overextend- October 28 post on the Freedom of the tion involves ‘deception,’ which has long ing its authority at a time when media Press Foundation’s website, Executive been a critical tool in fi ghting crime. The credibility is already fragile,” said SPJ Director Trevor Timm refl ected on how FBI’s use of such techniques is subject President Dana Neuts in the letter. SPJ frequently such tactics might be used. to close oversight, both internally and by also encouraged journalists across the “The FBI and Justice Department owe the courts that review our work.” Comey country to open constructive dialogue some answers to news organizations and also noted that the FBI had no intention with law enforcement offi cers in their the public: How often have they imper- to publish the article and that no one but communities to come to a better un- sonated news organizations to send the suspect ever interacted with the fake derstanding of their respective roles in malware to suspects? What other news journalist or saw the falsifi ed article. serving the public. organizations have they pretended to be?

SARAH WILEY SILHA RESEARCH ASSISTANT

17 Dissemination of Hacked Online Photos Demonstrates Challenges of Digital Privacy wo recent high profi le cases Lawrence. Hilton also noted that many breached. Despite the fact that servers of hackers stealing photos people had told him that the posting of had not been breached, Cook explained from online databases have the photos was akin to sexual assault that Apple was updating security policies highlighted the diffi culty of because celebrities did not give consent related to its iCloud services. The updated maintaining privacy in an to the dissemination of their pictures. As changes included sending notifi cations to Tonline environment. In late August 2014 a result, he vowed not to post any more users when a device logs into their iCloud several nude photos of celebrities were stolen nude images. account for the fi rst time, when someone posted to two online message boards, Other celebrities also likened the attempts changing the account’s pass- 4chan and Reddit, after hackers breached stolen pictures to sexual assault. In Sep- word, or when stored data is uploaded to Apple’s online data tember 1 posts on Twitter, actress Lena a new device. storage service Dunham, who was not a target of hackers, However, independent security PRIVACY called iCloud. In a wrote that the anonymous users posting researcher Ashkan Soltani told The Wall separate October Street Journal that incident, anonymous users on 4chan “More often than not, Apple chooses Apple’s security posted links to several photos that had to err on the side of usability to make updates might not been collected from a mobile app for be effective because sharing photos. Both incidents drew wide- it easier for the user that gets locked the notifi cation “will spread concern and criticism from digital out from their kid’s baby photos than to do little to actually privacy commentators over posting stolen protect consum- nude photos online and the protections employ strong protections for the high- ers’ information for digital data. risk individuals.” since it only alerts you after the fact.” Stolen Nude Celebrity Photos Raise — Ashkan Soltani, Soltani also sug- Criticisms over Apple’s iCloud Independent Security Researcher gested that Apple Services had not focused on On Aug. 31, 2014, The Washington security measures Post reported that anonymous individuals the photos had violated the privacy of the that would protect user’s private informa- had posted hundreds of pictures of nude targeted celebrities. “The way in which tion. “There’s a well-understood tension celebrities on the online message boards you share your body must be a CHOICE. between usability and security,” Soltani of 4chan and Reddit. Many of the photos Support these women and do not look at told The Wall Street Journal. “More often appeared to be taken by the celebrities these pictures,” wrote Dunham. “Serious- than not, Apple chooses to err on the side themselves. Immediate questions over ly, do not forget that the person who stole of usability to make it easier for the user the authenticity of the photos dissipated these pictures and leaked them is not a that gets locked out from their kid’s baby when the publicist for actress Jennifer hacker: they’re a sex offender.” photos than to employ strong protections Lawrence, one of the celebrity’s whose The Post also reported on September for the high-risk individuals.” photos was posted online, confi rmed via 1 that the anonymous posters of the nude a press release that the pictures were of photos claimed that they had stolen the Digital Photos Stolen from Snapchat Lawrence. However, many other celebri- pictures appearing online from celebri- Photo Collection Tool ties also released statements saying that ties’ iCloud accounts. Initially, security ex- On Oct. 10, 2014, The New York Times photos of them were digitally altered perts raised concerns over the security of reported that anonymous users on 4chan and not genuine pictures of themselves. iCloud and were unsure how the photos had claimed that they had stolen as many The Post reported that the stolen photos may have been stolen from the celebrities’ as 200,000 pictures from Snapchat, a included pictures of celebrities such as accounts. The Post reported several ways smartphone application that allows users Kim Kardashian, Rihanna, Kate Upton, that hackers could have stolen photos, to share photos that are automatically and Kirsten Dunst, among others. including resetting passwords after deleted after a short period of time. The The posting of the photos drew im- guessing the answer to a security ques- anonymous 4chan posters claimed that mediate widespread condemnation from tion, taking advantage of a fl aw in a “Find they had accessed the photos by breach- several celebrities and publicists for My iPhone” application that would grant ing the servers of Snapsaved, an applica- the victims of the stolen photos. In the access to iCloud data, or hacking another tion that allowed users to save Snapchat August 31 press release confi rming the person who had been privately collecting photos before the image disappears. On authenticity of the photos, Lawrence’s nude pictures of celebrities. October 12, The Guardian reported that publicist wrote that the distribution of the On September 4, Apple CEO Tim a website had gone live where anyone hacked images was a “fl agrant violation Cook told The Wall Street Journal that could download the more than 13 giga- of privacy” and suggested that authori- the hackers had accessed the celebri- bytes worth of stolen Snapchat content. ties would prosecute anyone who posted ties’ accounts by correctly guessing the In the October 10 story, the Times the photos of Lawrence. Perez Hilton, a answers to security questions or using reported that a spokeswoman from celebrity blogger who often posts risqué phishing scams. Phishing is an online Snapchat confi rmed in a statement that pictures of celebrities, initially posted the scam in which hackers send an offi cial- the content was not stolen from the stolen photos of Lawrence on his website looking request for secret user informa- company’s servers. “We can confi rm that only to take the images down later. In tion, such as passwords or usernames. Snapchat’s servers were never breached a September 1 video on his blog, Hilton Cook told the newspaper that none of and were not the source of these leaks,” apologized for posting the pictures of Apple’s iCloud servers had actually been the spokeswoman said in the statement. 18 “Snapchatters were victimized by their Snapchat content as child pornography Act, 17 U.S.C. § 101 et seq., to demand use of third-party apps to send and re- traffi cking, government offi cials would be that a website take down stolen images ceive Snaps, a practice that we expressly likely to seek ways to place more strin- on the grounds of copyright infringement. prohibit in our Terms of Use precisely gent regulations on the Internet. Another option, Baltz wrote, was that vic- because they compromise our users’ tims could potentially bring an invasion of security.” Several Issues Brought to Light with privacy suit against the hackers who stole On October 17, Times reporter Mike Online Posting of Stolen Photos and distributed the images. Isaac wrote that the founders of Snap- The online dissemination of stolen However, Baltz predicted that suing saved had said that they initially set up digital photos has raised questions about perpetrators of online invasions of their service as an experiment to prove digital privacy and the role that anony- privacy would be diffi cult. “For the most that Snapchat photos could be saved. mous online message boards can play in part, a person’s ability to restrict the use Users could download the Snapsaved app disseminating stolen digital images. In of an illegally obtained photograph is and enter their usernames. The app would a September 22 story, The Washington limited. The subject of the photograph send any of the users’ received messages Post’s Terrence McCoy explained that usually needs to know the identity of on Snapchat to the Snapsaved servers. once images have been posted to online the hacker (thief) to enforce his or her Users could then log-on to the Snapsaved message boards like Reddit or 4chan, rights,” Baltz wrote. “Often times, in the website to examine the messages and they are nearly impossible to completely age of the [I]nternet, such an identity photos they had received. The founders remove from the Internet. “[The pictures] is not easy to fi nd. Accordingly, until told Isaac that they had collected about propagate and re-propagate faster than more legislation is enacted to govern 13 gigabytes worth of Snapchat mes- anyone can delete them — even when the content of the [I]nternet, it may be sages, but they believed that the hackers those images violate copyright laws,” Mc- advisable to avoid the camera or, at the had only stolen about 415 megabytes of Coy wrote. He observed that as soon as very least, keep your clothes on when in photos and videos. After they learned moderators of Reddit deleted a message front of it.” about the breach, the Snapsaved found- thread containing the stolen nude images, Victims of stolen intimate photos ers deleted all of the content they had a different thread elsewhere on the web also often face challenges with compa- procured and shut down the website. site would appear with the photos. Red- nies’ terms of service for using cloud- The founders of Snapsaved did not reveal dit’s administrators issued a September 7 computing technologies when attempt- their identities to Isaac and explained that statement on the web site contendint that ing to fi nd legal remedies for the loss they had not spoken with authorities for “[Removing the images] quickly devolved of private online data. In a September 2 fear of being prosecuted. into a game of whack-a-mole. We’d ex- post, Bloomberg View contributor Leonid Although there were several confi rma- ecute a takedown, someone would adjust, Bershidsky explained that iCloud’s terms tions that hackers breached data servers, reupload [sic], and then repeat.” of service stated that users were respon- Caitlyn Dewey noted in an October 13 However, McCoy argued that the Red- sible for “maintaining the confi dentiality post on The Washington Post’s Intersect dit administrators were not taking a prin- and security” of their account. The terms blog that the stolen Snapchat images did cipled stand for privacy in deleting the of service also stated that Apple was ab- not seem to be “making the usual rounds” celebrity photos but that concerns about solved of any responsibility so long as it online like the celebrity nude photos in the law played an important role. “Though “exercised reasonable skill and due care” September. Dewey speculated that part Reddit did ultimately delete [the photos], in protecting a users account. “In plain of the reason that the stolen photos ap- it didn’t do [so] out of some moral code, English, as long as Apple can prove that it parently were not disseminated was due but because there were rumors one of the took care to prevent unauthorized access to logistics. Most of the stolen photos celebrity photographs was taken while — and … it will always be able to prove and video were of users doing benign the subject was underage — a crime,” Mc- it — any hacks are the user’s fault after activities. “[People wanting to view the Coy wrote. “The breach of privacy wasn’t clicking that ‘Accept’ button,” Bershidsky content] must download massive fi les, a concern.” wrote. He also noted that other provid- and trawl through tens of thousand of cat McCoy also noted that Reddit released ers of cloud-computing services, such pictures and other nonsense, in the hope a separate statement on September 6 say- as Google and Amazon, also had similar of seeing a couple of 10-second nude ing that the posting of the stolen images terms of services. videos,” Dewey wrote. “The obstacles would not be likely to affect the web site’s Bershidsky posited that the best solu- won’t stop everyone, of course … But in policies. “We understand the harm that tion for now was to avoid using cloud general, it’s a lot of work. Too much work, misusing our site does to the victims of services to store personal information. apparently.” this theft, and we deeply sympathize,” a “Given the share of responsibility Web Dewey also noted that the fact many Reddit administrator wrote in the state- giants are willing to take for our data — of Snapchat users are under the age of ment. “Having said that, we are unlikely none, according to the service terms — it 18 also might have played a big role in to make changes to our existing site.” makes sense to keep personal stuff such limiting the dissemination of images. Any Other commentators have observed as those nude pictures, bad poetry, love nude photos of minors found in the stolen that the online distribution of the stolen letters, etc., out of the cloud,” Bershidky content would be considered child por- digital photos also highlight the limits of wrote. “Not being a Hollywood star or a nography, which could draw stiff criminal legal remedies because of unique chal- world-class beauty provides a measure of penalties for downloading the images and lenges that the Internet medium creates. protection, but only until someone devel- videos. Dewey pointed out that users on Kevin C. Baltz, an attorney with Butler ops an acute interest in you — stalkers, the 4chan and Reddit message boards Snow, observed in a September 10 post governments and other unwanted watch- urged others to not download the content on the fi rm’s Bizlitnews Blog that vic- ers obsess on the unlikeliest of people because it might include child pornogra- tims have few remedies if hackers have every once in a while.” phy. The users argued that if authorities stolen digital photos online. He noted that CASEY CARMODY viewed the dissemination of the stolen victims might be able to use the Copyright SILHA BULLETIN EDITOR

19 Government Surveillance Critics Target Broad Authority of Executive Order 12333 n July 18, 2014, The Wash- States borders largely shielded Americans by the government through this chain of ington Post published an from bulk collection of these communi- communication theory, no matter how op-ed column by former State cations. However, according to Tye, the tenuous the connection. The interpretation Department employee John technical realities of Internet communica- of 12333 to allow this targeting of Ameri- Tye in which he contended tions mean that an e-mail, Internet call or cans’ metadata is due to secret internal Othat “Americans should be even more other communication between two people policy change made in 2010, according to concerned” about United States govern- within the United States will often pass documents leaked by NSA whistleblower ment surveillance justifi ed under Executive through servers located outside the United Edward Snowden. Order 12333 (EO States before reaching its domestic recipi- According to Tim Cushing in a Nov. 12333) than other ent. Thus, e-mails or other purely domestic 6, 2014 article for Techdirt.com, “This NATIONAL more widely dis- online communications could be collected Executive Order is, and always has been, SECURITY cussed authorities. legally under the order so long as they are the go-to authority for the NSA.” Cush- The article sparked relayed or stored on servers outside the ing explained that this is true because in a new public debate about EO 12333, United States. addition to the more permissive collection signed by President Reagan in 1981, which Tye argued that subsequent White and minimization standards under 12333 was initially intended to authorize foreign House administrations’ interpretations of as compared to surveillance statutes like surveillance. The National Security Agency provisions of the order have also expanded the Patriot Act and FISA, there is far less (NSA) stated in internal documents that the government’s information collection oversight required of surveillance activi- EO 12333 “is the primary source of NSA's power. For example, under EO 12333, the ties justifi ed under 12333. Minimization foreign intelligence-gathering authority,” government may not intentionally collect procedures need only be approved by according to documents acquired by the individual Americans’ communications. the Attorney General. Senate Intelligence American Civil Liberties Union (ACLU) However, it may collect communications Committee Chair Diane Feinstein (D-Ca.) and described in an Oct. 30, 2014 post to its outside the United States in bulk, which, explained that her committee has not been blog. Tye asserted that EO 12333 empowers as discussed above, may contain both do- able to “suffi ciently” monitor the programs. the government to conduct bulk surveil- mestic and foreign communications by U.S. Feinstein, who has frequently defended lance of American’s domestic communi- citizens. Under EO 12333, these “inciden- surveillance programs authorized by Con- cations, so long as the collection occurs tally” collected communications may be gress, told McClatchy for a Nov. 21, 2013 outside the United States. And, wrote Tye, retained and examined without any judicial article that “12333 programs are under the “Unlike Section 215 [of the Patriot Act], the oversight. The “minimization procedures,” executive branch entirely.” executive order authorizes collection of the which instruct agencies how to deal with Despite the controversy and public content of communications, not just meta- improperly collected information, are ap- debate over surveillance statutes, EO 12333 data, even for U.S. persons.” (For more on proved only by executive branch offi cials, has received far less scrutiny. Even the government surveillance under other legal Tye explained. President’s Review Group on Intelligence justifi cations, see “Snowden Leaks Reveal Tye attacked the claim that the intercep- and Communication Technologies, a group Extensive National Security Agency Moni- tion of Americans’ metadata could be con- designed to suggest reforms to oversight toring of Telephone and Internet Commu- sidered “incidental.” He wrote that except and transparency of surveillance activities, nication” in the Summer 2013 issue of the for the executive-designed minimization declined to explicitly reference EO 12333 Silha Bulletin, “Snowden Leaks Continue procedures, the NSA is free to retain any in its proposals. The group’s report sug- to Reveal NSA Surveillance Programs, information obtained via bulk collection. gested reforms to foreign surveillance that, Drive U.S. and International Protests and Once the information is collected, it can according to Tye’s op-ed, a member of the Reforms” in the Fall 2013 issue, and “NSA be retained for up to 5 years or more if an group later acknowledged was intended to Surveillance Practices Prompt Reforms and exception applies. suggest reform to EO 12333. According to Legal Challenges Throughout All Govern- After the NSA has collected Americans’ a July 23, 2014 report by The Washington ment Branches” in the Winter/Spring 2014 data, it may examine it with far fewer re- Post, the President’s Civil Liberties Over- issue, and “Fallout from NSA Surveillance straints under EO 12333 than other authori- sight Board will be examining EO 12333 to Continues One Year after Snowden Revela- ties. For instance, under the government’s propose reforms. tions” in the Summer 2014 issue.) authority under the Foreign Intelligence On Aug. 18, 2014, Civil Liberties Protec- According to a Nov. 21, 2013 story by Surveillance Act (FISA), an American’s tion Offi cer for the Director of National McClatchy’s Ali Watkins, EO 12333 has information may be targeted for examina- Intelligence Alexander Joel published an become a signifi cant tool the government tion only if the government demonstrates a article in Politico responding directly to has used to authorize domestic surveillance reasonable articulable suspicion for doing many of Tye’s assertions. Although the NSA because of at least two important develop- so in front of a FISA court judge. Under may perform bulk collection of informa- ments: the technical advancements in com- EO 12333, any American’s information the tion that includes Americans’ communica- munication technology and expansive inter- government has “incidentally” collected tions, Joel wrote, “NSA personnel may not pretations of key provisions of the order. may be examined without any judicial use U.S. person ‘selection terms’ (such When signed in 1981, the types of “electron- oversight. Under FISA, the NSA may exam- as names, phone numbers or email ad- ic” surveillance the order authorized largely ine the metadata of individuals two “hops” dresses) to retrieve communications from consisted of telephone calls. Because a from someone suspected of being a foreign its collection under EO 12333 without a telephone call placed and received in the agent. According to an Aug. 13, 2014 New fi nding by the attorney general that the U.S. United States would need to be “collected” York Times report, under EO 12333 there is person is an agent of a foreign power (or in the United States, the order’s dichotomy no such limit, meaning any person’s infor- in other similarly narrow circumstances).” allowing collection only outside of United mation that is collected may be examined Order, continued on page 21 20 Tenth Circuit Dismisses Claims That News Program Violated Insurance Broker’s Civil Rights, Allows Defamation Claims to Proceed The following story contains revisions and journalist’s privilege, while also raising the national register of insurance agents so based on factual inaccuracies that were questions about journalists working as in- long as the producers returned the licenses brought to the attention of the Silha vestigators for law enforcement purposes. after the investigation and did not attempt Bulletin staff. In the original version In 2007, employees of NBC’s Dateline to sell insurance. Dateline also agreed to of the story, the Bulletin inaccurately decided to produce an investigative story share its hidden-camera footage with the reported that the Tenth Circuit Court of to expose alleged fraudulent practices that Alabama offi cials. The news program then Appeals noted that Tyrone Clark admitted proceeded with its to using scare tactics during training investigation after presentations. “Knowing the producers would use the agreement with Clark never hidden cameras to record the seminar, the law enforcement DEFAMATION admitted to using offi cials. scare tactics. The Alabama offi cials supplied the Dateline Dateline later three-judge panel producers with false credentials that aired a segment acknowledged that Clark could not deny called “Tricks of the accuracy of the individual statements they could not otherwise obtain. the Trade” in April that were attributed to him in the Dateline agreed to share the information 2008. The segment presentation, but the panel did not fi nd it obtained with the Alabama offi cials. included host Chris that Clark ever affi rmatively admitted to Hansen interviewing using scare tactics to sell annuities. The Quid pro quo.” victims of predatory Bulletin apologizes for any confusion or techniques as well as misinformation that this mistake may — Judge Terrence L. O’Brien, hidden camera foot- have caused for readers. U.S. Court of Appeals for the Tenth Circuit age of an insurance agent attempting to n July 9, 2014, the United sell annuities to se- States Court of Appeals for insurance agents used to sell annuity prod- nior citizens during a “sting” operation. The the Tenth Circuit held that a ucts to senior citizens. Specifi cally, Date- story also included interviews that Hansen federal district court improp- line wanted to attend and surreptitiously conducted with various law enforcement erly dismissed an insurance record events at “Annuity University,” a offi cials to discuss some of the tactics that broker’sO defamation lawsuit against a training seminar hosted by Tyrone Clark, insurance agents were using to sell annui- news program making allegations that president and owner of Brokers’ Choice ties. The story then focused on how insur- his training seminars taught predatory of America (BCA). Because the seminar ance agents were trained to use “question- techniques for selling annuities to senior was limited to licensed insurance agents able tools of the trade.” Hansen suggested citizens. However, the court of appeals only, Dateline worked with the Alabama that Clark’s seminars taught insurance bro- rejected the broker’s claims that the news Annuities Task Force, which consisted of kers to scare senior citizens into purchas- program’s investigation, done with the help representatives from the Alabama Depart- ing annuities without providing full details of law enforcement offi cials, violated his ment of Insurance, the Alabama Securities about the limitations of this type of invest- civil rights. Brokers’ Choice of America, Commission, and the Alabama Attorney ment. Dateline proceeded to show short Inc. v. NBC Universal, Inc. 757 F.3d 1125 General’s offi ce, to obtain false insurance clips of the hidden camera footage from (10th Cir. 2014). The case involved a range licenses. The Alabama offi cials agreed to an “Annuity University” event in October of media law issues, including defamation list the names of two Dateline producers in Brokers’ Choice, continued on page 22

Order, continued from page 20 Joel also disputes Tye’s claim that neither knowledge about it, have made public that whatever it is they're denying is done recent surveillance reforms by President debate complicated. The ACLU’s Jameel under some other program or authority.” Obama nor reform bills being debated in Jaffer told The New York Times for a Aug. Although proposed Congressional reforms Congress would have any impact on the 13, 2014 article that debate over EO 12333 might clarify other surveillance laws, the government’s authority under EO 12333. has been missing because “[i]t’s a black reforms may leave the power to continue Joel points out that Presidential Policy box.” In a March 25, 2014 article in the the same information collection activities Directive 28, issued Jan. 27, 2014, required Atlantic, electronic security expert Bruce intact via the powerful legal authority that collection activities “be as tailored as Schneier noted that EO 12333 facilitates under EO 12333. Tye challenged readers feasible.” It also places limitations on the U.S. intelligence offi cials’ ability to give to “[c]onsider the possibility that Section use of information collected in bulk, for accurate but misleading answers about 215 collection does not represent the instance requiring that the information will the government’s surveillance authority. outer limits of collection on U.S. persons not “be used for the purpose of suppress- Schneier wrote that the public must but rather is a mechanism to backfi ll that ing or burdening criticism or dissent.” “[b]e careful when someone from the portion of U.S. person data that cannot be The complex relationship between intelligence community uses the caveat collected overseas under 12333.” EO 12333 and other surveillance laws, ‘not under this program,’ or ‘not under ALEX VLISIDES combined with the lack of public this authority’; almost certainly it means SILHA RESEARCH ASSISTANT 21 Brokers’ Choice, continued from page that the district court erred in four ways: the accuracy of individual statements that fi rst, the district court did not accept BCA’s Dateline attributed to him. “However, 2007, which included scenes where Clark allegations as true for the purposes of the program not only accused Clark of said, “And I’m bringing these things up that considering the motion to dismiss; second, using scare tactics. The ‘gist’ or ‘sting’ was disturb the hell out of them” and “I help the district court did not make the ap- his calculated use of these tactics to sell my clients to protect their life savings from propriate determinations of fact; third, the inappropriate products to seniors,” wrote the nursing home and Medicaid seizure of district court should have found that BCA O’Brien. Clark had used the recording of their assets. See, that’s scary, and it should provided suffi cient support for its § 1983 his March seminar to argue that the select- be scary.” Dateline also supplemented the claims; fourth, the district court improp- ed Dateline footage created an overall false seminar footage with Hansen interviewing erly applied the Colorado shield law. In a impression of how he teaches insurance Minnesota Attorney General Lori Swanson, unanimous decision, a three-judge panel agents to approach discussions with senior who criticized Clark’s comments. In total, affi rmed the district court’s dismissal of citizens about annuity products. “Instead of Dateline used clips that included a total of promoting preda- 112 words from Clark during the two-day “Dateline misrepresented its employees tory tactics, BCA’s seminar. complaint alleged BCA and Tyrone Clark sued NBC’s par- as insurance agents, implicitly facts supporting ent company, NBC Universal, in the United denying they were agents of Alabama its position that States District Court for the District of Annuity University Colorado alleging several state-law claims, investigatory agencies. But, there were provided a straight- including defamation, trespass, fraud, and no coercive acts, only implicit lies about forward discussion misrepresentation. BCA also alleged civil of the pros and cons rights violations under 42 U.S.C. § 1983. their actual identity and purpose. We see of annuity prod- BCA claimed a Fourth Amendment viola- that as no different from an undercover ucts and endorses tion for an illegal search and seizure as ethical (although well as Fourteenth Amendment violations police offi cer misrepresenting himself as scary) marketing,” of invasion of privacy and stigmatization. a drug dealer.” wrote O’Brien. The NBC Universal moved to dismiss the law- Tenth Circuit panel suit for failure to state a claim and sought reversed the district to stay discovery pending a district court’s — Judge Terrence L. O’Brien, U.S. Court of Appeals for the Tenth Circuit court’s dismissal ruling. BCA claimed that it needed Date- of the defamation line’s unaired footage from the “Tricks of claim because the Trade” story to substantiate its claims. BCA had provided However, a magistrate judge relied upon BCA’s claims of civil rights violations. enough of a factual basis to state a plau- the Colorado Shield Law, Colo. Rev. Stat. However, the panel reversed the dismissal sible complaint. §12-90-119(3), to determine that Dateline of the defamation claims and remanded Next, O’Brien observed that the reversal did not need to disclose its footage, which the case to the district court for further of the district court’s decision would allowed discovery to be stayed. A district proceedings. typically resolve the issue about whether court judge granted NBC Universal’s mo- In the panel’s opinion, Circuit Judge discovery proceedings could commence. tion to dismiss but gave leave to BCA to Terrence L. O’Brien fi rst examined BCA’s “However, this case is anything but nor- amend its complaint. defamation claims to determine whether mal,” O’Brien wrote. “Dateline claims it In an amended complaint, BCA claimed the district court properly dismissed the need not disclose its news material merely only defamation and violations of its civil lawsuit. BCA claimed Dateline’s selective because BCA plausibly alleged a defama- rights under § 1983. BCA provided record- footage of the seminar took Clark’s com- tion claim. Rather it argues, under Colo- ings it had created during a separate “An- ments out of context to suggest that Clark rado’s newsperson privilege [interpreted by nuity University” seminar from March 2007 was teaching insurance agents how to state court precedent], … BCA’s complaint to demonstrate that Dateline’s segment had deceive senior citizens. O’Brien noted that must also suffi ciently plead facts showing taken Clark’s statements out of context. NBC Universal acknowledged that the sub- ‘probable falsity’ before any disclosure is BCA also asked the district court to com- stance of its segment could be defamatory, required.” pel discovery for the unaired footage of but argued that all of Clark’s statements The panel noted that the Colorado Dateline’s hidden-camera footage from the were substantially true. After examining shield law provided a qualifi ed privilege seminar. NBC Universal objected, claiming each individual statement that Dateline that could be defeated if a party seeking in- that Colorado’s shield law protected the aired from Clark’s seminar, the lower formation could prove that a news organi- unedited recordings, and fi led a motion to court had dismissed the defamation claim zation’s information was directly relevant, dismiss. The magistrate judge again denied because it agreed with NBC Universal. unavailable through alternative means, and BCA’s motion for discovery based on a However, the Tenth Circuit panel found the interest of the party seeking the infor- common law journalist’s privilege and the that “in a case where a plaintiff asserts a mation outweighed the First Amendment Colorado Shield law, noting that BCA failed defendant’s statements gave a false impres- interests of the news organization and the to show that relevant information was un- sion by being presented out of context, a public. O’Brien concluded that BCA had available from sources other than the Date- more global approach is required.” O’Brien easily met the fi rst two prongs of the test to line footage. A district judge affi rmed the wrote that a court should not have con- overturn the privilege found in the Colo- magistrate’s order to dismiss BCA’s motion sidered Clark’s statements in isolation to rado statute. Neither party disputed that to compel discovery, and later dismissed determine whether they were substantially Dateline’s footage was directly relevant to all of BCA’s claims with prejudice. Brokers’ true. Rather, the district court needed to the case. The panel also found that BCA’s Choice of America, Inc. v. NBC Universal, examine how Dateline portrayed the “gist” recording of a March seminar was not an Inc., 2011 WL 97236 (D.Colo. 2011). of Clark’s statements and his seminars. alternative to the information in Dateline’s In its appeal to the U.S. Court of Ap- The panel noted that Clark could not deny October footage because BCA alleged that peals for the Tenth Circuit, BCA claimed 22 what Clark said at the March and October obtain,” O’Brien wrote. “Dateline agreed to line’s “sting” operation. The Tenth Circuit seminars was different. Information about share the information it obtained with the panel dismissed BCA’s stigmatization the October seminar was available only Alabama offi cials. Quid pro quo.” claim on the grounds that the facts did not through Dateline’s footage. However, the key question was whether provide a suffi cient basis to possibly prove As for the third prong of the state the arrangement between Dateline and a civil rights violation. statute’s qualifi ed privilege test, the panel Alabama authorities had resulted in a civil In a July 9, 2014 post on Hollywood, wrote that the Colorado Supreme Court rights violation. The court found that Date- Esq., The Hollywood Reporter’s law blog had previously found that a showing of line’s actions of posing as insurance agents analyzing entertainment and law, senior “probable falsity” should be considered and secretly recording the seminar did editor Eriq Gardner noted that Brokers’ in balancing the interests of plaintiffs and not violate any civil rights. Rather, O’Brien Choice of America v. NBC Universal was news organizations before revealing the noted that Dateline was simply using typi- unusual because the case raised a vari- identity of a confi dential source or confi - cal investigative techniques of law enforce- ety of issues related to media law topics, dential information. NBC Universal argued ment offi cials. “Dateline misrepresented its including journalist’s privilege, defamation, that it could refuse to disclose Dateline’s employees as insurance agents, implicitly and journalists working in conjunction unedited footage until BCA proved the denying they were agents of Alabama in- with law enforcement offi cials for an inves- “probable falsity” of the segment’s reports. vestigatory agencies,” O’Brien wrote. “But, tigation. “For a sly ploy where journalists However, the Tenth Circuit panel rejected there were no coercive acts, only implicit (including Hansen, famous for “To Catch a NBC Universal’s argument because the lies about their actual identity and pur- Predator”) doubled as police informants, unaired footage of the seminar did not in- pose. We see that as no different from an NBC will have to face a defamation claim volve a confi dential source or confi dential undercover police offi cer misrepresenting and maybe others like trespass (if the information, which was the only context in himself as a drug dealer.” statute of limitations hasn’t passed), but which the “probable falsity” requirement O’Brien went on to dismiss BCA’s it’s off the hook for trampling on the U.S. applied. O’Brien wrote that the identities of argument that it had not given consent Constitution,” wrote Gardner. (For more who recorded Clark was not confi dential for recordings of the seminar, fi nding that on Hansen and “To Catch a Predator,” nor did BCA seek information about the Clark had made his statements in a public see “‘To Catch a Predator’ Criticized after confi dential information of the editorial setting, which meant he should have had Suspect’s Suicide” in the Winter 2007 issue process. As a result, NBC Universal could no Fourth Amendment expectations of of the Silha Bulletin.) not rely on “probable falsity” arguments. privacy. O’Brien also noted that there On July 15, 2014, Carter Ledyard & “Without the probable falsity crutch, the was no instance of the government using Milburn LLP, the law fi rm representing equitable balance between ‘important inter- coercive power to allow Dateline to record BCA and Clark, issued a statement on its ests’ and ‘chilling effect’ tip dramatically in the seminar. “No government actors were web site applauding the appellate court’s favor of BCA,” O’Brien wrote. “The object present and the Dateline operatives neither decision. “The 10th Circuit Court’s decision of discovery — the original footage — is represented themselves to be government in [Brokers’ Choice of Am. v. NBC Uni- the best and perhaps only evidence from offi cers nor demanded entry on behalf of versal] places our clients’ libel case back which a fact-fi nder can determine whether the government,” O’Brien wrote. “At worst, on the docket with clear guidance about Dateline’s portrayal of the substance of it is a classic case of government agents how to proceed in accordance with its what occurred at Annuity University cast sending willing and available operatives rulings,” the fi rm wrote in the statement. “It Clark’s teachings in such a way as to leave to obtain information freely revealed to rejects the common media defense tactics a false impression.” The three-judge panel those operatives.” The three-judge panel of fi ling a motion to dismiss designed to ruled that the Colorado shield law’s quali- speculated that Dateline may have violated place evidentiary burdens of proof on libel fi ed test had been overcome and disclosure state tort law for invasion of privacy, but plaintiffs at the pleading stage, coupling of the unaired footage was warranted. its actions did not amount to a Fourth the motion with an application for a stay O’Brien then turned to BCA’s viola- Amendment civil rights violation. The of all discovery which, if granted as it was tion of civil rights claims. Claims of civil district court was correct in its judgment here, stops the case while briefs are fi led, rights violations under § 1983 apply only to dismiss BCA’s illegal search and seizure hearings held, decisions considered, and to the actions of the government, not claim, the panel ruled. months and even years pass.” private actors. However, if a private actor The appellate court concluded by However, The Denver Post reported on is participating in a joint endeavor with addressing BCA’s claimed Fourteenth July 15 that NBC News spokeswoman Mon- the government, the private actor could Amendment violations for invasion of ica Lee told the newspaper in a statement be held liable for a violation of civil rights. privacy and stigmatization. On the invasion that the Tenth Circuit’s decision was not a O’Brien wrote that in order to determine of privacy claim, O’Brien wrote that the signifi cant setback. “Nothing in last week’s whether the actions of the private actor federal Constitution protects only against ruling stated that the Dateline segment was and the government were a joint endeavor, disclosure of highly personal matters. The inaccurate,” Lee said in the statement. “We the court needs to examine “whether the court dismissed the alleged civil rights vio- stand by our reporting.” government knew of and acquiesced in the lation because the BCA did not claim that As the Bulletin went to press, further private person’s intrusive conduct” and Dateline’s segment disclosed any personal proceedings in the case at the United “whether the party performing the search information. O’Brien also explained that States District Court for the District of intended to assist law enforcement efforts BCA’s claims of stigmatization would re- Colorado had not yet commenced. or to further his own ends.” The appel- quire allegations that government offi cials late court found that Alabama offi cials had assisted in the editing of Dateline’s and Dateline had engaged in a joint effort segment to harm the reputation of Clark CASEY CARMODY to investigate Clark and BCA. “Knowing and BCA. However, O’Brien observed that SILHA BULLETIN EDITOR the producers would use hidden cameras BCA provided facts that only alleged an to record the seminar, Alabama offi cials Alabama law enforcement offi cial, Joe supplied the Dateline producers with false Borg, appeared in an interview and that credentials that they could not otherwise Borg’s friend appeared during the Date-

23 Law Enforcement, Tech Companies Clash on Built-In Privacy Features n Sept. 17, 2014, Apple the Post noted that users of existing An- warrants were misguided. He noted that announced that its newest droids can simply activate the encryption encryption aims to prevent any outside mobile operating system options that are available. incursion into a user’s information. “You would make it technically Law enforcement offi cials criticized can’t build a backdoor that only the good impossible to comply with the tech companies for changing their guys can walk through,” Schneier wrote. Olaw enforcement or intelligence agency policies to emphasize data encryption. In “Encryption protects against cybercrimi- warrants for password-protected user an October 16 speech at the Brookings nals, industrial competitors, the Chinese data. Google announced the following Institution, Federal Bureau of Investiga- secret police and the FBI. You’re either day that its new Android mobile operat- tion (FBI) Director James Comey argued vulnerable to eavesdropping by any of ing system would that encryption changes would impede them, or you’re secure from eavesdrop- similarly encrypt law enforcement investigations already ping from all of them.” PRIVACY user informa- “struggling to keep up” with criminals’ Many commentators have interpreted tion by default. use of technology. This type of encryp- the companies’ changes simply as ratio- These intentionally-designed limita- tion, Comey said, is like “[a] safe that nal responses to demand for more pri- tions responded to increasing consumer can’t be cracked” which “will have very vate communication. Carl Howe, a mo- demand for truly private communication serious consequences for law enforce- bile data analyst, told Bloomberg News after several years of scandals and leaks ment and national security agencies at for a Sept. 29, 2014 report, “They want to related to U.S. government surveillance. all levels.” Comey emphasized the FBI’s provide that feeling of privacy. Other- Law enforcement and intelligence of- fear of criminal investigations “going wise, people won’t use [the devices].” fi cials responded with biting criticism of dark,” meaning that suspects might use But critics have viewed this motivation the technology companies, arguing that communication or data storage methods as problematic. In an October 16 speech the changes will make their jobs more that are inaccessible to law enforce- at the Manhattan Institute, New York diffi cult and make the country less safe. ment. Prominent city police chiefs also Police Department Chief William Bratton Nonetheless, these changes may signal criticized the changes. Washington, D.C. said, “It is outrageous that in the interest the most substantive consumer-focused Metropolitan Police Chief Cathy Lanier of making money, [Apple and Google] are response to fears of government surveil- said criminals would make use of the thwarting security and crime fi ghting,” lance. encrypted phones. “We are going to lose Experts agree that the new default Under the “Government Information a lot of investigative opportunities,” she settings will affect U.S. consumer, but Requests” section of Apple’s new privacy told Bloomberg News in a Sept. 29, 2014 other technology industry observers policy, available at https://www.apple. article. see the changes as particularly geared com/privacy/government-information- Civil liberties advocates have applaud- towards staying viable in the interna- requests/, password-protected “personal ed the changes as a positive, market- tional marketplace. As the scope of the data such as photos, messages (includ- based response to protect user privacy. U.S. government’s data collection outside ing attachments), email, contacts, call “Apple’s decision is simply setting the of the United States and the close history, iTunes content, notes, and privacy standard for mobile devices in relationship the government maintains reminders” will be encryption-protected the same place as non-mobile ones,” with many communications company by default. Users will be able to set this wrote Electronic Frontier Foundation has become more widely known, fears password independently, and, according Staff Technologist Jeremy Gillula in a of surveillance through American-made to the language of the policy, “Apple can- Oct. 10, 2014 blog post on the organiza- products has increased. If the American not bypass [the] passcode and therefore tion’s web site. “We applaud Apple and government imposes surveillance loop- cannot access this data.” Because Apple Google for standing up for their custom- holes, wrote Wired’s Poulsen, “foreign says it will not build a technical back- ers’ security even if law enforcement technology companies would gain a door into its new operating system allow- doesn’t like it.” competitive advantage over the US, since ing the company to bypass the encrypted Others disputed the law enforcement they’d have no obligation to weaken their password, “it’s not technically feasible offi cials’ claims that the default encryp- [encryption].” Because technology con- for [Apple] to respond to government tion settings mean that police are in a sumers outside the U.S. lack many basic warrants for the extraction of this data.” worse position to investigate crimes. legal safeguards from U.S. government According to a September 18 story in Kevin Poulsen wrote in an Oct. 8, 2014 data collection, a technical safeguard The Washington Post, Google’s Android article for Wired, “On balance, smart- provides an appealing solution. system’s default settings will encrypt all phones have been a gold mine to police, Although the privacy changes have data. Google Spokeswoman Niki Christ- and the mild correction imposed by seri- been largely framed as a response to off told the Post that “[f]or over three ous [encryption] will still leave the cops National Security Agency surveillance years Android has offered encryption, leaps and bounds ahead of where they programs, some believe that the changes and keys are not stored off of the device, were [before smartphones].” are addressing a problem separate from so they cannot be shared with law In an October 6 post on the blog the concerns that spawned them. George enforcement.” Although Apple’s changes Schneier On Security, electronic security Washington University Law Professor will be available to both new and old expert Bruce Schneier argued that law and Fourth Amendment expert Orin Kerr Apple devices that install the new iOS 8 enforcement’s criticisms of tech compa- told The Washington Post in a Sept. 25, operating system, Google’s changes mak- nies’ changes to data encryption settings 2014 article that “[t]he outrage is di- ing data encryption a default setting are on operating systems that focused solely rected at warrantless mass surveillance, only on new Android products. However, on the possibility of blocking lawful Apple, continued on page 25 24 29th Annual Silha Lecture Examines the Right to Access Government Information in the Wake of National Security and Privacy Concerns irst Amendment attorney “Snowden pulled back the veil on the Freedom of Information Act (FOIA), David A. Schulz argued that activities that the government had been 5 U.S.C. § 552, signed into law in 1966. “determining the proper level doing that we knew very little about and FOIA created three important principles, of government transparency which the government worked hard to according to Schulz. First, the act cre- is critical to how we proceed keep secret,” said Schulz. Lack of gov- ated a presumption of openness that the Fas a nation,” during the 29th annual Silha ernment transparency is a real problem, public has a right to see federal agency Lecture. Schulz’s lecture, “See No Evil: Schulz explained, because Americans records. Second, an agency can only Why We Need a New Approach to Gov- cannot engage in informed debate about refuse to release records that fall under ernment Transpar- nine exemptions ency,” took place outlined in the act, SILHA CENTER “Snowden pulled back the veil on and the agency EVENTS on Oct. 16, 2014 at the Univer- activities that the government had been must prove why a sity of Minnesota’s doing that we knew very little about and specifi c exemption Cowles Auditorium with 200 people in applied. Third, the attendance. Schulz, a partner at Levine which the government worked hard to act articulated the Sullivan Koch & Schulz LLP and counsel keep secret.” right to challenge to the Associated Press, The New York an agency’s deci- Times, and The Guardian, discussed sion to withhold — David A. Schulz, records in a court how claims of national security and 29th Annual Silha Lecturer personal privacy have diminished the of law. public’s ability to access government in- Schulz explained formation and have led to more govern- important issues when they do not have how the Constitutional right of access ment secrecy. access government information, limiting to information was fi rst established by Schulz began the lecture by address- the democratic process. the Supreme Court in 1980. In Richmond ing the classifi ed National Security Obtaining access to records is the Newspapers v. Virginia, 448 U.S. 555 Agency (NSA) documents provided by main way the public can determine “what (1980), the Court held that the pub- Edward Snowden to one of his clients, the government is up to,” Schulz said. lic’s right to attend criminal trials was The Guardian. In June 2013, The Guard- According to Schulz, the two legal foun- embedded in the First Amendment as ian published information about clas- dations for the public’s right to access implied by the structure of the Constitu- sifi ed documents that Snowden gave to government information are a statutory tion. The Court reasoned that there must journalist Glenn Greenwald. The disclo- right found in the Freedom of Informa- be some level of access to government sures and subsequent stories revealed tion Act and state open record laws, and information and proceedings in order for a massive system of U.S. government a constitutional right found in the First the other expressed rights of the First surveillance of Americans and foreign- Amendment. However, Schulz noted that Amendment, such as the right of speech ers. According to Schulz, the Snowden government offi cials and judges have and the right of assembly, to be fully disclosures highlighted two major trends often cited privacy and national security realized. The Court developed a two-part driving the government to withhold concerns to limit the right of the public test in Press-Enterprise Co. v. Superior information from the public: privacy and to access information. Court, 478 U.S. 1 (1986) to determine national security, especially in the after- Schulz provided an overview of the when the right of access applied or could math of September 11. statutory right of access established by be overcome. The test held that a right of Lecture, continued on page 26

Apple, continued from page 24 and this is a very different context. It’s a password protected phone, there are ination. American Civil Liberties Union searching a device with a warrant.” tools that will reveal a signifi cant amount Principal Technologist Christopher Law enforcement authorities will of user information despite the phone be- Soghoian told The Wall Street Journal on still be able to acquire the information ing locked and password protected. Even September 22 that federal and national on encrypted cell phones. Many smart- on Apple’s new iOS 8 operating system, security offi cials will have the resources phone users backup their data on a cloud programs can extract photos, videos to use other tools, but the encryption storage service in a variety of ways. and third party application data without changes could disadvantage local law Apple’s iCloud service, for instance, is the password. Police may also be able enforcement. “It’s not so much a problem not encrypted and law enforcement of- to force users to enter their password. for ‘Big Brother,’ but a problem for ‘Little fi cials could obtain the information in a This tactic is the subject of legal contro- Brother,’” Soghoian said. user’s iCloud account from Apple with versy, because some courts have found a warrant. In a Sept. 17, 2014 post to his that forcing suspects to reveal their own ALEX VLISIDES blog Zdziarski.com, engineer Jonathan passwords violates the Fifth Amendment SILHA RESEARCH ASSISTANT Zdziarski explained that if police acquire guarantee against compelled self-incrim-

25 Lecture, continued from page 25 highlight government misconduct to be Schulz highlighted a recent example of access exists in situations when govern- successful, the requester must present a court fi nding a constitutional access ment proceedings and information have some sort of evidence of wrongdoing as right to classifi ed information in Dhiab v. traditionally have been available to the a pre-requisite to overcome privacy con- Obama, 1:05-cv-01457-GK (D.D.C. 2014), public and when public access plays a cerns found in FOIA exemptions. These over the government’s objections. Abu “signifi cant positive role” in the function- decisions have “turned FOIA on its head” Wa’el Dhiab, a Guantanamo Bay prisoner, ing of government. and have led to government secrecy, was force fed while attempting a hunger Schulz described how privacy and Schulz contended. strike in 2012. Dhiab claimed that the national security concerns have limited Courts have also often justifi ed non- force-feeding violated international law the public’s right of access found in disclosure under the national security as well as the United States Constitu- FOIA and the U.S. Constitution. Courts exemption in FOIA, which states that tion as it constituted a form of cruel have narrowed the scope of the access records can be withheld “that are specifi - and unusual punishment. On October 3, right under FOIA by broadly interpret- 2014, D.C. District ing the several exemptions found in Court Judge Gladys the law, Schulz explained. In particular, “Courts feel like they are unable to Kessler ordered the Schulz focused on the Supreme Court’s differentiate between legitimate and release of 28 clas- decisions in Department of Justice v. realistic concerns about national sifi ed videotapes Reporters Committee for Freedom of the showing the force- Press, 489 U.S. 749 (1989) and National security and public safety and thus feedings despite Archives and Records Administration aren’t able to separate those from the the government’s v. Favish, 541 U.S. 157 (2004). In both objections of cases, the Court broadly interpreted speculative, the implausible, or the national security. In privacy exemptions under FOIA, which openly illogical excuses we too often get analyzing whether stated that government information can the government’s be withheld in circumstances when its from agencies.” arguments to disclosure would create an unwarranted restrict access to invasion of personal privacy. The Court — David A. Schulz, the tapes were had to determine whether the public 29th Annual Silha Lecturer compelling enough interest outweighed that risk. Schulz ex- to overcome the plained that under both cases, the Court established consti- narrowly construed the public interest cally authorized under criteria estab- tutional access right, Kessler concluded in disclosure of the records while fi nding lished by an executive order to be kept that “the fact that the Government has a broad privacy interest. In addition, secrete in the interest of national defense unilaterally deemed information classi- Schulz explained that lower courts have or foreign policy.” 5 U.S.C § 552(b)(1). fi ed is not suffi cient to defeat the public’s read the majority opinions in Reporters Schulz explained that broadly interpret- right [of access].” Schulz praised Kes- Committee and Favish as shifting the ing national security interests in the sler’s approach in balancing the national burden of proof for access to informa- aftermath of September 11 has created security concerns and the public’s right tion. Previously, the government needed lasting restrictions on disclosure under to access information. to provide justifi cation for why records FOIA. Schulz argued that courts often “I’m not suggesting that there are not should be withheld. Now, requesters lack “institutional confi dence” because legitimate national security concerns, but of information need to explain why the they often defer to the executive branch’s what I am saying is that the refl exive im- information should be released, Schulz arguments that national security would pulse that swept the nation after Septem- explained. (For more on the Favish be harmed in order to withhold informa- ber 11 to withhold any information that decision, see “Citing Family Members’ tion. “Courts feel like they are unable could possibly be used by terrorists is to- Privacy, Supreme Court Allows Govern- to differentiate between legitimate and day denying the public basic information ment to Withhold Foster Photos” in the realistic concerns about national security it needs to function if our democracy is Spring 2004 issue of the Silha Bulletin.) and public safety and thus aren’t able going to function,” said Schulz. Schulz shared recent examples of to separate those from the speculative, Schulz concluded the lecture with a cases highlighting the problem of con- the implausible, or the openly illogical pertinent paraphrase from Ben Franklin, struing the privacy interest too broadly. excuses we too often get from agencies,” “those who would sacrifi ce liberty in the For example, in Associated Press v. Schulz said. interests of security will have neither, Department of Justice, 554 F. 3d 274 (2d Schulz provided examples when and I fear that is where we are today,” Cir. 2009), the Associated Press submit- courts have been struggling with balanc- Schulz said ted a FOIA request for names of Guanta- ing the constitutional right of access and A video of the lecture is available on namo Bay detainees who were alleging national security concerns. Schulz high- the Silha Center website at silha.umn. abuse from both other detainees and lighted recent legal debates about wheth- edu. Silha Center activities, including the prison guards. The government refused er the Constitutional right of the public annual lecture, are made possible by a to release the names, arguing that such to access criminal proceedings applies generous endowment from the late Otto a disclosure would harm the detainee’s to the military tribunals taking place in Silha and his wife, Helen. privacy interest. The United States Guantanamo Bay. Issues also arise when Court of Appeals for the Second Circuit classifi ed information is used in trial and SARAH WILEY agreed with the government. That court whether a constitutional right of access SILHA RESEARCH ASSISTANT cited Favish in holding that in order for to the courts allows the public to view requests seeking information that might the classifi ed information. In particular,

26 Silha Center Co-Sponsors Forum on Ethics of “Pointergate” Broadcast n Dec. 8, 2014, the Minnesota 7 that again quoted Quinn, who said that for police and the public. Hubbard em- Pro Chapter of the Society the mayor’s gesture in the photo sent a phasized that neither Hodges nor Gordon of Professional Journalists troubling message. “[The hand signs] have agreed to be interviewed when requested. (SPJ), in collaboration with real meaning on the street and gangs take The December 8 forum, held at the Twin Cities Chapters of them seriously and people have died for the University of Minnesota’s Cowles Othe National Association of Black Journal- simply fl ashing a gang sign,” Quinn told Auditorium, included panelists Kealing; ist and the Asian American Journalists KSTP. “This is serious and can lead to Duchesne Drew, managing editor for Association, the Minneapolis/St. Paul serious consequences.” operations at the Minneapolis Star Business Journal, Subsequent reporting by other news Tribune; Anthony Newby, NOC’s SILHA CENTER the Silha Center organizations sought to provide greater executive director; and Jane Kirtley, Silha EVENTS for the Study of context for KSTP’s reports. Other news Center Director and Silha Professor of Media Ethics and organizations identifi ed the man in the Media Ethics and Law. Hodges, Kolls and Law, and the Min- picture as Navell Gordon, who had been Hubbard were invited to join the forum as nesota Journalism Center, hosted a forum previously convicted of various drug and panelists, but none took part in the event. on the ethics of a news story prepared fi rearm related crimes but denied having During the panel discussion, Newby by Twin Cities ABC-affi liate KSTP, which any association with gangs. Additional characterized KSTP’s original story as was dubbed “Pointergate” and received reports noted that Gordon was work- “non-existent” with “no substance” and national criticism. ing as an organizer with Neighborhoods exhibiting a “pre-determined view.” The “Pointergate” began on Nov. 6, 2014, Organizing for Change (NOC), a non- follow up story, Newby said, was an when KSTP aired the story during an eve- profi t organization focusing on social example of a news organization “digging ning broadcast of “5 Eyewitness News.” issues. The picture of Hodges and Gordon their heels in.” The broadcast report showed a picture was taken during a NOC get-out-the-vote Drew said that KSTP had called the of Minneapolis Mayor Betsy Hodges and event. Reports also indicated that Min- mayor’s offi ce to ask whether the mayor an African-American man, whose face neapolis Police Chief Janeé Harteau had had been photographed making a gang was blurred, smiling and pointing at each been present when the photograph had sign but was told that she had not. At other, a gesture which KSTP reporter been taken, but was standing just out of that point, Drew said, there was no longer Jay Kolls described as “a known gang frame. However, KSTP continued to stand a story of any substance, yet the station sign.” Kolls did not identify the man in by its reporting of the story in another No- decided to run it anyway. Once it became the picture by name, but described him as vember 13 story. apparent that running the story had been a “twice-convicted felon for drug selling In a November 19 blog post on the a mistake, Drew argued that it would have and possession and illegal possession of a organization’s web site, SPJ’s Minnesota been appropriate for KSTP to apologize. fi rearm.” KSTP reported that law enforce- Pro Chapter President Chris Newmarker “We [journalists] make mistakes all the ment offi cials had found the photograph called on KSTP to “disavow the story,” time,” Drew said. “But the point is to on the man’s Facebook page during saying the it was “fundamentally fl awed follow through on making it right. That investigative work. Kolls also interviewed and based on a faulty premise that a silly tendency should be in the DNA of all on camera retired Minneapolis police gesture made by the mayor ... amounted news organizations.” offi cer Michael Quinn, who formerly to a gang sign,” and that describing Asked whether news organizations managed the department’s Internal Affairs Gordon merely as a convicted felon “cre- should have policies in place to respond Unit. Quinn told KSTP that the photo was ates the appearance that the reporter is to public criticism, Kirtley replied that not “disappointing because it puts police of- a mouthpiece for members of the police only would such policies be useful, but fi cers at risk.” Kolls reported that Hodges force who have an axe to grind with the that news organizations ought to proac- declined to be interviewed about the pic- mayor’s offi ce.” Although Newmarker tively engage with the public and invite ture, but her offi ce stated that the gesture acknowledged that KSTP and Kolls had their participation in the news report- was not a gang sign. Nevertheless, Quinn made “invaluable contributions to the lo- ing and gathering process and express told KSTP, “[Hodges] can’t be that naive. cal journalism community through years its concerns. She suggested that news She is legitimizing gangs who are killing of solid reporting and good journalism,” organizations should listen to the pub- our; children; in Minneapolis and I just this particular story “was deeply fl awed.” lic’s concerns carefully. Enacting such can’t believe it. It hurts.” KSTP’s original The SPJ statement is available online at policies increases a news organization’s broadcast is available online at http://kstp. http://www.mnspj.org/2014/11/19/spj-calls- credibility, she said. Kirtley noted that al- com/news/stories/S3612199.shtml. on-kstp-to-disavow-pointergate-story. though people often want a single, simple After the story aired, the station faced On November 26, Hubbard Broadcast- narrative, the approach can oversimplify a public backlash on social media that in- ing Chairman and CEO Stanley S. Hub- complex issues and compartmentalize cluded questions about whether the story bard, owner of KSTP, responded to criti- people. “News organizations need to take was newsworthy, and whether KSTP’s cisms and defended Kolls’ story in a letter the time and resources to tell complicated reporting was intentionally taking the to Jonathan Kealing, SPJ’s Minnesota Pro stories and tell them well,” she said. picture out of context, as well as accusa- Chapter’s President-elect and news editor A video of the panel discussion is tions of racism. Many of the criticisms for PRI.org. Hubbard contended that Kolls available online at http://theuptake.org/ appeared on Twitter, with commentators had been informed that police offi cials live-video-post/journalists-discuss-poin- using “#PointerGate” to organize their were concerned that the Mayor’s used of tergate/. comments. In response to the criticism, a gesture associated with the gang, “Stick ELAINE HARGROVE KSTP ran a follow-up story on November Up Boys,” could create serious problems SILHA CENTER STAFF

27 Silha Center for the Study of Media Ethics and Law Non-profi t Org. School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID 111 Murphy Hall Twin Cities, MN Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625-3421

Silha Research Assistantships

The Silha Center offers Research Assistantships to outstanding law and graduate students with an interest in media law and media ethics. Silha Research Assistants are responsible for writing, editing and producing the Silha Bulletin during the academic year and the summer semester. They also assist Silha Professor Jane Kirtley with a variety of research projects, such as preparing a comprehensive outline on global privacy for the Practising Law Institute’s annual Communications Law in the Digital Age conference handbook; amicus briefs (including before the Supreme Court of the United States); and comments on proposed rules and regulations submitted to federal, state and international bodies.

The number of available Research Assistantships varies from year to year. Appointments are competitive. A strong academic record and excellent legal research and writing skills are required. Journalism experience is strongly preferred. Applications for Summer 2015 and for the 2015-16 academic year will be due in March 2015.

For more information, please visit the Silha Center website at http://www.silha.umn.edu