The Reporters Committee for Freedom of the Press and 115 media and press freedom organizations sent a letter last week to officials in Minnesota, demanding that law enforcement officers immediately stop attacks against credentialed, clearly identifiable journalists covering nationwide protests in response to a white Minneapolis police officer killing George Floyd, a Black man, on May 25. The Reporters Committee also sent a letter to officials in New York, and will be contacting officials in other states in the coming days.
The Reporters Committee is also tracking curfew orders imposed by cities, counties and states in response to the protests — and whether they include exemptions for members of the news media.
Here’s what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.
Two developments this week point to the potential use of technology to automate how government documents are processed internally and in response to public records requests. As access to government records are a mainstay of a journalist’s toolbox, how these advances play out will be critical to the profession.
At the federal level, the Public Interest Declassification Board issued recommendations largely focused around transitioning the classification system from the “analog age” to digital. The report was decidedly pro-transparency; it opens by acknowledging the “bipartisan recognition that the Government classifies too much information for too long.” Specific goals include implementing “Big Data, Artificial Intelligence, Machine Learning, and Cloud storage and retrieval” to automate classification and declassification decisions and potentially streamlining the classification categories by adopting a two-tiered system.
A California Supreme Court judge, Justice Mariano-Florentino Cuéllar, commented on similar technological improvements in the context of public records requests. The case, National Lawyers Guild v. City of Hayward, involved a public records request that included police body camera footage with audio and visual material exempt from disclosure.
The court ruled that the requesters would not have to pay a fee for redactions from electronic records under the California public records law. (The Reporters Committee filed a friend-of-the-court brief in support of the NLG, which had submitted the public records request.) Cuéllar wrote separately from the majority, noting that implementation of artificial intelligence or other advanced software to collect and redact records en masse will “merit nuanced application of statutory provisions.” He suggested that because a better, more efficient records system might be more expensive, it would at times be “prudent” to interpret the law such that certain requests will fall under the fee-bearing provisions.
Enhanced technology in records systems has the potential to unlock far more records, permitting journalists, in particular, to obtain and disseminate that information to the public. And as technological advances are applied to the management of government records, courts and legislators should be wary of undermining government transparency by overburdening the individuals and organizations — particularly in media — who function as critical watchdogs.
The Center for Democracy and Technology on Tuesday filed a lawsuit against President Trump in his official capacity, arguing that the recently signed “Executive Order on Preventing Online Censorship” violates the First Amendment. The organization notes that the order is “plainly retaliatory” against Twitter, and that it “seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals — by demonstrating the willingness to use government authority to retaliate against those who criticize the government.” On May 28, the Reporters Committee issued a statement raising constitutional concerns about the executive order.
On Tuesday, the Reporters Committee joined a friend-of-the-court brief, drafted by the Harvard Cyberlaw Clinic, in Everytown for Gun Safety v. ATF. The Second Circuit case arose out of a Freedom of Information Act request Everytown made for records from the Bureau of Alcohol, Tobacco, Firearms, and Explosives regarding firearms recovered from the scenes of suicides. ATF denied the request, claiming that retrieval of aggregate data from a database requires the creation of a new record. The amicus brief argues that there is no legal distinction between searching data in a database and retrieving aggregate data. Privacy and civil liberties advocates are raising concerns about government efforts to conduct surveillance on protesters using facial recognition software, license plate readers, body cameras, drones, and other tools. Additionally, BuzzFeed News reported on Tuesday that the Justice Department signed off on new authority for the Drug Enforcement Administration to “conduct covert surveillance” and collect intelligence on protesters, which some note could require the use of “stingray” devices that simulate cell sites.
On Monday, the FBI announced on Twitter that it is soliciting information, photos, and videos that show violent encounters during demonstrations. In a press release, the FBI stated that it was collecting this information as part of what it dubbed a commitment “to apprehending and charging violent instigators who are exploiting legitimate, peaceful protests.”
