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An Amicus Brief No. 19-783 IN THE ___________________ NATHAN VAN BUREN, Petitioner, v. UNITED STATES, Respondent. ___________________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________ BRIEF OF AMICUS CURIAE THE MARKUP IN SUPPORT OF PETITIONER __________________ Nabiha Syed Katherine M. Bolger* THE MARKUP John M. Browning 900 Broadway, Suite 202 DAVIS WRIGHT TREMAINE LLP New York, NY 10159 1251 Avenue of the Americas (347)894-3746 New York, NY 10020 [email protected] (212) 489-8230 [email protected] David M. Gossett DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave. NW Washington, DC 20006 *Counsel of Record Counsel for Amicus Curiae LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................... iii INTEREST OF AMICUS CURIAE ......................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ....................................................... 2 ARGUMENT ............................................................ 6 I. DATA JOURNALISM IS A VITAL FORM OF JOURNALISM. ......................... 7 II. THE MARKUP USES DATA JOURNALISM TECHNIQUES TO REPORT ON THE TECHNOLOGY SHAPING OUR SOCIETY. ...................... 11 A. The Markup Gathers News by Observing What Can Be Done on Online Platforms............................... 13 B. Data Scraping Is a Vital Tool for Data Journalists. .............................. 15 III. THE FIRST AMENDMENT PROTECTS THE ONLINE NEWSGATHERING PRACTICES OF DATA JOURNALISTS. ............................ 21 A. Routine Newsgathering Activities Cannot Be Criminalized Under the First Amendment Just Because They Were Conducted Online. ......... 21 ii B. The CFAA Should Be Interpreted to Avoid Violating the First Amendment ....................................... 27 CONCLUSION ....................................................... 29 iii TABLE OF AUTHORITIES Page(s) Cases Bartnicki v. Vopper, 532 U.S. 514 (2001) .............................................. 24 Bond v. United States, 572 U.S. 844 (2014) .............................................. 27 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .............................................. 22 Florida Star v. B.J.F., 491 U.S. 524 (1989) ........................................ 23, 25 Garrison v. Louisiana, 379 U.S. 64 (1964) ................................................ 22 HiQLabs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019) ................................ 25 J.H. Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th Cir. 1995) ............................... 14 Oklahoma Publ’g Co. v. District Ct., 430 U.S. 308 (1977) .......................................... 6, 22 Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ................................ 6, 22, 26 Reno v. ACLU, 521 U.S. 844 (1997) .......................................... 6, 26 iv Sandvig v. Barr, --- F. Supp. 3d ---, 2020 WL 1494065 (D.D.C. Mar. 27, 2020), appeal filed, No. 20-5153 (D.C. Cir. May 28, 2020) ......... 5, 6, 28 Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979) ...................................... 5, 23, 25 Constitutional Provisions and Statutes U.S. Const. amend. I ......................................... passim 18 U.S.C. § 1030 ................................................ passim Other Authorities Julia Angwin, A Letter from the Editor, THE MARKUP (Feb. 25, 2020) ....................................... 12 Julia Angwin et al., Despite Disavowals, Leading Tech Companies Help Extremist Sites Monetize Hate, PROPUBLICA (Aug. 19, 2017) ....................................................................... 9 Julia Angwin, et al., Facebook Lets Advertisers Exclude Users by Race, PROPUBLICA (Oct. 28, 2016) ............................................................... 11 Julia Angwin et al., Machine Bias, PROPUBLICA (May 23, 2016) ............................ 3, 11 Nellie Bly, TEN DAYS IN A MAD HOUSE (1887) .......... 14 Jacquellena Carrero, Note, Access Granted: A First Amendment Theory of Reform of the CFAA Access Provision, 120 COLUM. L. REV. 131 (2020) ............................................................... 4 v Bill Dedman, The Color of Money, ATLANTA JOURNAL-CONSTITUTION (1988) .................. 3, 7, 8, 9 John Keegan, Blue Feed, Red Feed, WALL STREET JOURNAL (Aug. 19, 2019) ......................... 19 Nathaniel Lash, Why Pinellas County is the worst place in Florida to be black and go to public school, TAMPA BAY TIMES (Aug. 12, 2015) ....................................................................... 3 Wesley Lowery et al., 994 people shot dead by police in 2015, WASH.POST (2015) .................... 3 Rob O’Dell et al., Copy, paste, legislate, USA TODAY (Apr. 3, 2019) ............................................ 10 Komal S. Patel, Note, Testing the Limits of the First Amendment: How Online Civil Rights Testing Is Protected Speech Activity, 118 COLUM. L. REV. 1473 (2018) ................................... 4 Aaron Sankin & Maddy Varner, Want to Find a Misinformed Public? Facebook’s Already Done It, THE MARKUP (Feb. 25, 2020) ..................................................................... 13 Ken Schwencke et al., Nonprofit Explorer, PROPUBLICA .......................................................... 19 Nate Silver et al., Latest Polls, FIVETHIRTYEIGHT.COM (June 7, 2020)............. 3, 10 Nabiha Syed, President, The Markup, Salant Lecture on Freedom of the Press at the Harvard Kennedy Center (Nov. 14, 2018) .......... 17 vi Nabiha Syed, A Letter from the President, THE MARKUP (Feb. 25, 2020) ............................... 12 Ida B. Wells-Barnett, LYNCHING AND THE EXCUSES FOR IT (1901) ........... 2 Ida B. Wells-Barnett, THE RED RECORD (1895) ......................................... 2 Leon Yin & Adrianne Jeffries, Show Your Work: How We Examined Gmail’s Treatment of Political Emails, THE MARKUP (Feb. 26, 2020) ....................................... 15 Sandhya Somashekhar et al., Black and Unarmed, WASH.POST (Aug. 8, 2015) ................... 9 Taken, PULITZER CENTER .......................................... 10 Wayback Machine, INTERNET ARCHIVE .................... 16 1 INTEREST OF AMICUS CURIAE1 The Markup is a nonprofit news organization that conducts data-driven investigations into how powerful institutions use digital technology to reshape our society. Launched in February 2020, The Markup has assembled a staff of journalists who specialize in data journalism – also known as computational journalism – and publishes their work online at themarkup.org. The core mission of The Markup is to use the tools of data journalism to investigate how technology works, particularly when it is wielded by the online platforms, government entities, and other organizations that play an increasingly prominent role in our online (and real world) lives. The Markup thus has a compelling interest in ensuring that the newsgathering practices that make data journalism a valuable tool for holding the powerful accountable in our modern democracy are not chilled or made illegal by overbroad application of data security laws. 1 All parties have provided their consent to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no person or entity other than amicus and its counsel made a monetary contribution to the preparation or submission of this brief. 2 INTRODUCTION AND SUMMARY OF ARGUMENT In 1895, pioneering journalist Ida B. Wells published The Red Record: Tabulated Statistics and Alleged Causes of Lynching in the United States, 1892- 1894. Ida B. Wells-Barnett, THE RED RECORD (1895). In that publication and several others like it, Wells combed through public records and compiled statistical charts to demonstrate the frequency with which men, and particularly Black men, were lynched. The purpose of Wells’ statistical analysis was not merely actuarial. Rather, it served as the raw material for her news reporting, which changed the way lynching was perceived and debated, both by its critics and its supporters. The power of Ms. Wells’ reporting lay in her devotion to facts. As she wrote, “[n]o good result can come from any investigation which refuses to consider the facts. A conclusion that is based upon a presumption, instead of the best evidence, is unworthy of a moment’s consideration.” Ida B. Wells-Barnett, LYNCHING AND THE EXCUSES FOR IT (1901). By carefully gathering and marshalling indisputable facts from public records scattered across the nation, Ms. Wells revealed the frightful scale of lynching in this country; without her work, the truth may have remained hidden in plain sight. The Markup continues the tradition of data journalism that Ms. Wells pioneered, the need for which could not be greater today. Like Ms. Wells, The Markup seeks to inform and influence public debate by marshaling the “best evidence” available – which is now increasingly online. Whereas Ms. Wells forced society to confront the evils of lynching by manually 3 searching paper records, modern data journalists analyze enormous datasets to identify abuses of power in the modern world. With increasingly powerful and sophisticated tools at their disposal, data journalists have exposed countless injustices, including: systemic racial discrimination by banks refusing to issue loans to Black customers; the re-segregation of Florida schools after integration was no longer enforced; and flaws in algorithms designed to assist with sentencing, which incorrectly rated Black defendants as posing higher risks
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