A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2017 Reporters and Leakers of Classifi ed Documents Targeted by President Trump and the DOJ n the fi rst half of 2017, President Donald Trump and the false information about the size of the crowds attending the Department of Justice (DOJ) sought to address leaks tied inauguration. Additionally, at the May 17, 2017 commencement to the Trump administration. In a Feb. 14, 2017 meeting ceremonies at the Coast Guard Academy, President Trump with thenFederal Bureau of Investigation (FBI) director told graduates that “no politician in history has been treated James Comey, President Trump suggested that the worse or more unfairly” by the media, according to The New Idirector consider jailing journalists who disseminate classifi ed York Times . (For more information on President Trump’s information, raising concerns from media law experts and relationship with the press as a presidential candidate and advocates. In an August 4 news conference, Attorney General as president, see “Media Face Several Challenges During Jeff Sessions announced that the DOJ was considering President Trump’s First Months in Offi ce” in the Winter/ subpoenaing members of the news media who publish leaked Spring 2017 issue of the Silha Bulletin and “2016 Presidential information. Sessions’ comments further raised concerns from Candidates Present Challenges for Free Expression” in the media experts and advocates about the Trump administration’s Summer 2016 issue.) attacks on freedom of the press. Meanwhile, on June 9, 2017, Prior to President Trump’s February 2017 meeting with a National Security Agency (NSA) contractor who leaked a Comey, there were multiple leaks apparently from or near his classifi ed report regarding Russia’s interference in the 2016 administration. In late January 2017, unauthorized transcripts presidential election to The Intercept pled “not guilty” after of phone conversations between President Trump and the being indicted by a federal grand jury on one count of “willful leaders of Mexico and Australia went public, The Washington retention and transmission of national defense information.” Post reported on February 5. Drafts of executive orders, Reality Leigh Winner faces 10 years in prison if convicted including one that would grant legal protection to people under the Espionage Act, the fi rst such prosecution under the and businesses that discriminate against samesex married Trump administration. couples, were also leaked in January. On February 9, The Washington Post , among other publications, reported on a President Trump Suggests FBI Director Should Jail leak that suggested former national security adviser Michael Reporters for Publishing Classifi ed Information T. Flynn spoke privately with Russian Ambassador Sergey On May 16, 2017, The New York Times reported that Kislyak and that the two discussed the U.S. sanctions on President Trump suggested to thenFBI director James Russia for the country’s interference with the 2016 presidential Comey that he should consider putting reporters in prison election. Following President Trump’s meeting with Comey, for disseminating classifi ed information. During the February additional leaks alleged that Comey was fi red because the 14 meeting, President Trump was “fi xated on a series of administration felt increasing pressure under the Russia damaging leaks during his presidency” and efforts to stop investigation, according to The Hill on May 12. such leaks, according to the Times . Several media law experts On July 6, 2017, Politico reported that Senate Homeland and advocates expressed concern over President Trump’s Security and Governmental Affairs Committee Chairman comments, noting that the idea of jailing journalists was not Ron Johnson (RWis.) released a report and sent a letter to impossible. Attorney General Jeff Sessions claiming that an “avalanche” Trump, throughout the 2016 campaign and the fi rst of media leaks under the Trump administration was harming several months of his presidency, was critical of the press, national security. The report claimed that at least 125 often speaking about his distaste for the media. In February stories containing leaked information potentially damaging 2016, Trump said that he believed news organizations often to national security were published by national news published false stories because they knew they would not be organizations between January 20 and May 25, 2017. On July sued for libel. In May 2016, Trump called reporters “dishonest,” 10, Alexandra Ellerbeck, senior Americas and U.S. research “not good people,” and among “the worst human beings” he associate for the Committee to Protect Journalists (CPJ), had ever met, according to CNN on May 31, 2016. The day wrote that the Senate report was “deeply fl awed,” citing after Trump was inaugurated as the 45th president of the nonscientifi c methodology and political bias, among other United States, he and thenWhite House Press Secretary Sean concerns. “The naming of more than a hundred journalists Spicer accused news organizations of deliberately reporting Classifi ed docs, continued on page 3 Inside This Issue Summer 2017: Volume 22, No. 3 1 Reporters and Leakers of Classifi ed Documents Targeted by 32 U.S. Customs and Border Protection Searches of Electronic President Trump and the DOJ Devices, Data at U.S. Borders Raise Privacy and Legal Cover Story Concerns Law Enforcement 7 Journalists Face Physical Restraints and Arrests; Trump Video Raises Further Concerns about Violence Against the 37 Ninth Circuit Addresses Spokeo after Supreme Court Media Remands Case; Circuit Courts Split on Article III Standing Endangered Journalists Bar Following Spokeo Data Privacy 11 President Trump and His Administration Spark Debate Over Media Law Issues 41 Eleventh Circuit Affi rms Dismissal of Video Privacy Class Action; Legal Questions Remain First Amendment Data Privacy 16 U.S. Supreme Court Rules in Two Signifi cant First 43 Controversial Undercover Video Makers Face Legal Action Amendment Cases and Ethical Concerns Supreme Court News Media Ethics 20 Vermont Governor Signs New Shield Law; U of M Board of 50 Third Circuit Declares a First Amendment Right to Record Regents and a New York Appeals Court Address Reporter’s On-Duty Police Offi cers Privilege Issues Law Enforcement Reporter’s Privilege 53 Several State Courts and Legislatures Grapple with 24 Rolling Stone, Daily Mail, and ABC Settle High-Profi le Anti-SLAPP Laws Defamation Lawsuits Anti-SLAPP Defamation 58 Google Hands Over Only One Record Following Expansive 29 Media Groups and Transparency Advocates Challenge Search Warrant Family’s Lawsuit, Judge’s Ruling Halting the Release of “Personal” Information Update Privacy 59 New York Times Deputy General Counsel to Deliver 2017 Silha Lecture, “Making Media Law Great Again: The First Amendment in the Time of Trump” Silha Center Events SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW SCOTT M EMMEL SILHA BULLETIN E DITOR CASEY C ARMODY ASHLEY T URACEK SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT BRITTANY R OBB ELAINE H ARGROVE SILHA R ESEARCH A SSISTANT SILHA C ENTER S TAFF 2 Classifi ed docs, continued from page 1 rhetoric and actions he can take to undermine the work of accused of harming national security seems intended to have the media,” said Simon to The New York Times. “That gap has a chilling effect on the press and is the type of measure that now been closed.” we see more often in authoritarian countries,” Ellerbeck Several media law experts indicated that it could be wrote. “The free press and national security are not opposing possible for the Trump administration to attempt to send interests: the American people are best served when a journalists to prison. Silha Center Director and Silha Professor vigorous media holds the government to account.” The of Media Ethics and Law Jane Kirtley said it is “risky” to report full report is available online at: http://www.politico.com/ on classifi ed information under the Trump administration. f/?id=0000015d174cd1a7a95d5f4dd0350000. “The law is untested, in terms of prosecuting journalists for Several rightwing media outlets took the opportunity to reporting classifi ed information, as distinguished from sources use President Trump’s frustration with the leaks to condemn leaking it,” Kirtley told Paste magazine. “This would make “leftleaning” media outlets for sabotaging the president, as reporting legally risky.” reported by The New York Times. Breitbart News and Fox University of Chicago law professor Geoffrey R. Stone told News criticized the Times and The Washington Post for The Washington Post on May 17 that it may be possible for relying on anonymous leakers, including those from or near reporters to be jailed for doing their jobs, perhaps under the the Trump administration. Espionage Act, 18 U.S.C. § 793 et seq. According to Stone, As the Bulletin went to press, neither the Trump news organizations that publish leaked information seem administration nor the Department of Justice (DOJ) had to be safe, citing the New York Times v. United States, also sought to jail a journalist. Nevertheless, known as “The Pentagon Papers Case,” in which the U.S. Supreme Court held that the government could not issue a COVER STORY President Trump’s comments sparked criticism from media experts. prior restraint against newspapers that sought to publish In a May 17 story for The New York classifi ed documents after they received the information from Times , correspondents Michael M. Grynbaum and Charlie someone who illegally photocopied the documents. 403 U.S. Savage, together with reporter Sydney Ember, wrote that 713 (1971). However, he also agreed with Kirtley that although President Trump’s proposal to Comey to jail journalists the law is clear about the leakers as well, “[t]he law is not “breached new territory for political reporters who already clearly resolved for the journalist who actively encourages the consider their profession under siege.” They quoted The leak.