TikTok Under the FBI’s Microscope
It could not have happened at a worse time for TikTok, the fourth most popular social media platform in America. Just days before TikTok CEO Shou Zi Chew was grilled before the House Energy and Commerce Committee, with calls echoing off the walls of the hearing chamber to ban TikTok in the U.S. market for scraping Americans’ data for China, news broke that the Department of Justice and FBI opened an investigation into the social media platform’s Chinese parent company, ByteDance. Investigators want to know if ByteDance used the app to track the location and movements of American journalists.
According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists.
If this story holds up, it will likely kill any serious consideration by the U.S. government of the proposal advanced by TikTok to compartmentalize its data inside the United States. As a series of leaks from inside the company show, for all practical purposes TikTok seems to have little independence from its owners. The use of TikTok to surveil American journalists would be an astonishing show of bad faith at a time when the company is pledging transparency and accountability.
In the Thursday hearing, Rep. Tim Walberg (R-MI) asked: “Today, do ByteDance employees in Beijing have access to American data?” Chew replied: “We rely on global interoperability, and have employees in China, so yes, the Chinese engineers do have access to global data.” He said data stored in the United States and Singapore is accessed in China only for “business purposes.”
As this story unfolds, we look forward to learning what Chinese intelligence believed was so important that it had to surveil U.S. journalists at this sensitive time. Were they following reporters who were speaking to dissidents or whistleblowers inside the company?
TikTok’s purported intrusion into journalists’ locations should remind us that confidentiality for sources is the lifeblood of journalism. Without being able to protect a source, journalists would struggle to reveal malfeasance in government and business. The TikTok story should prompt civil libertarians to double down on the need to protect journalists at home – as well as their sources – from the prying eyes of U.S. prosecutors.
As Members of Congress debate a ban of TikTok, we recommend that they also debate and pass the PRESS Act, which would bar prosecutors, except in emergency national security circumstances, from requiring the production of the notes and sources of journalists in court. This is a practice that has worked well in 49 states.
While there is a big difference between spying on journalists and using lawful domestic means to reveal their sources, the need to protect the independence of a free and unfettered press is unchanged.
Why Do Some on the Right and the Left Seem to Lack Basic Understanding of the First Amendment?
We were relieved to hear Gov. Ron DeSantis repudiate the bill introduced in the Florida legislature that would have required bloggers who write about state-elected officials to register with the state government. The bill, which the American Civil Liberties Union says is “un-American to its core,” will not enjoy the governor’s support or signature. What the news giveth with one hand, however, it taketh with the other.
The Federal Trade Commission is now demanding that, in the wake of Twitter’s release of data about government coordination with its content management, the company must now “identify all journalists” granted access to company records, including the “nature of access granted each person.” FTC also asked if Twitter had conducted background checks on the journalists, among other things. The Wall Street Journal observed: “So here we have a federal agency demanding that a private company disclose its interactions with a free press, including how much it snooped on those reporters. None of this is the business of the government.”
It certainly isn’t the business of the Federal Trade Commission, any more than a blogger in Florida should have to comply with a Republican state senator’s proposal that former House Speaker Newt Gingrich called “insane.”
First Amendment, folks. Not that hard.
Arrest of Wall Street Journal Reporter by Phoenix Police Reveals Arizona’s First Amendment Hang-ups
Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
“You wanna get arrested as well?” the police officer asked.
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record.
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.
The Indispensable U.S. Press Freedom Tracker
The freedom of the press is a First Amendment right that protects the ability of every American to know what our government is doing in our name. Reporters expose much of what the powerful in government and in corporations would rather keep quiet, and in doing so, journalists face a variety of threats in the performance of their jobs: harassment, assault, improper legal action, and even death threats.
The Freedom of the Press Foundation has been monitoring and logging these dangers for several years now. They provide hard data on their U.S. Press Freedom Tracker, a database of incidents involving journalists in the United States. It is an indispensable tool for anyone who wants to preserve, protect, and enhance civil liberties by protecting a free and unencumbered press.
The U.S. Press Freedom Tracker tracks the arrests of journalists, the seizure of their equipment, assaults, and interrogations at the U.S. border. It also tracks legal actions, such as subpoenas and prior restraint orders. The database extends back to 2017, grouping its data by well-defined categories. Altogether, the database offers a comprehensive understanding of the threats to press freedom at a glance.
For example, one can see the explosion in assault incidents that coincided with the protests and riots of the summer of 2020. The tracker data are complemented by up-to-date reporting on these incidents.
Among the events it tracks and reports on are legal actions that threaten to intimidate reporting. In October, for example, Ohio’s Scioto Valley Guardian Editor-in-Chief Derek Myers was charged with felony wiretapping for publishing a recording of witness testimony from an ongoing trial in Ohio.
After judicial back-and-forth on whether to bar recordings of testimony in a murder trial, someone did just that. Myers was out of the country when he was provided a secret recording of the testimony taken by someone in the courtroom. Myers later published condensed portions of that recording.
Judge Anthony Moraleja responded by issuing a search warrant for the Guardian equipment. A laptop was seized, along with Myers’ cellphone. Myers was then charged with interception of wire, electronic, or oral communications. Myers’ attorneys pointed to the Supreme Court case Bartnicki v. Vopper, which ruled that the media cannot be held liable for publishing information that was obtained illegally by a source.
All this information was logged and reported by the U.S. Press Freedom Tracker, just one example of the rich resources civil liberties advocates can find here.
Protect The 1st today joined with almost 40 other civil liberties and news organizations, led by the Freedom of the Press Foundation, in a letter urging Senate Majority Leader Chuck Schumer to include the PRESS Act in any year-end omnibus spending bill.
The PRESS Act, which passed the House in September, would provide a federal shield law protecting journalists from surveillance or compelled disclosure of source materials, except in emergency situations.
Other signers include the American Civil Liberties Union, the Center for Democracy & Technology, the Electronic Frontier Foundation, The Knight First Amendment Institute at Columbia University, PEN America, and the Project for Privacy and Surveillance Accountability.
Read the whole letter here.
How wrong does a journalist have to be in her reporting to be held liable for a false statement about a public figure?
The baseline for libel of a public figure traces back to the 1964 New York Times v. Sullivan opinion, in which the U.S. Supreme Court held that a city public safety commissioner could not win a liable suit against a newspaper over minor misstatements in an ad. That case set a lasting precedent that in order to prevail a public figure must prove actual “malice” – a statement made knowing that it is false or with reckless disregard to its truth or falsity – to win a libel case.
The limits of protected speech and the definition of a public figure were expanded when Hustler publisher Larry Flynt was sued by The Rev. Jerry Falwell after producing a fictional and pornographic “interview” with him in the 1980s. The Court ruled against Falwell, holding that the prominent minister was a public figure for First Amendment purposes.
Recent years, however, have seen fine-tuning in the direction of the plaintiffs. In 2017, Rolling Stone magazine agreed to pay $1.65 million to the University of Virginia chapter of a fraternity after falsely portraying its members as brutal gang rapists. The magazine capitulated because the reporter in this case was demonstrated to have practiced a degree of carelessness that could easily be judged as “malice.”
An ongoing, high-profile case will once again demonstrate the courts’ application of the “malice” standard and the rights of public figures in a libel suit. A federal court will allow former Rep. Devin Nunes to proceed on one claim made by MSNBC commentator Rachel Maddow on her eponymous TV show in 2021. Maddow’s statements concerned a mysterious package delivered to the House Permanent Select Committee on Intelligence more than a year before. Addressed to Nunes, the package had come from a Ukrainian politician believed to be close to the Putin government. Nunes’ staff delivered the package unopened to the FBI, while Rep. Nunes sent a letter to the attorney general notifying him of the receipt of the package.
In July 2020, Rep. Sean Maloney publicly asked Rep. Nunes if he had ever received materials from this individual, Andriy Derkach, suspected by U.S. intelligence of operating on behalf of the Kremlin. And if so, would Nunes share what he had received with the committee? Nunes declined to answer.
On her show, Maddow said that the mailer “is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Maddow’s next made more problematic statements: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
The U.S. District Court for the Southern District of New York refused to allow Rep. Nunes to sue over the statements that he had refused to answer questions, or that he had refused show the contents of the package to other members of the intelligence community. These statements are true (or true enough), the federal court reasoned, because to the average viewer the “intelligence community” would certainly cover the House intelligence oversight committee.
Where Maddow and her employer are at risk is the statement that Nunes refused to hand the package over to the FBI. The court found this statement “does not fall within the fair report privilege” because “it is not substantially true.” Thus, the court dismissed all of Nunes’ claims except this one.
Will Maddow’s false statement amount to “malice” in the eyes of the court? Would a loss by her lead to more careful reporting, or would it have a chilling effect on journalism? Once Maddow’s statement is litigated, the outcome will sharpen our understanding of how courts today judge a factual error, how they continue to apply libel law to public figures, and the implications of these judgments for the First Amendment.
This is a case to watch.
Last week, we applauded Attorney General Merrick Garland for formalizing a rule in the Department of Justice that restricts the ability of federal investigators and prosecutors to get their hands on the notes of journalists.
We applaud the Attorney General’s action because the freedom of journalists to protect confidential sources has proven time and again a way to hold the government accountable for wrongdoing or malfeasance. As we took a long look at the published rule over the weekend, however, one aspect of it popped out at us. The DOJ rule protects “members of the news media” without giving that term any definition.
Does the new DOJ rule protect local citizen journalists like Priscilla Villarreal, aka “Lagordiloca,” who was arrested by Laredo police and slapped with the Orwellian charge of “misuse of official information”? Does the rule protect the political and speech rights of activist groups, from BLM to Project Veritas, who post news? Or does it only protect salaried employees of large media organizations?
We reiterate that the announcement of this rule, while heartening, is not enough. As we noted, it can be changed at any time. The fuzziness about DOJ’s thinking on who is and who is not a journalist is more reason for the Senate to pass the PRESS Act. This bill would prohibit the federal government from compelling journalists, and phone and internet companies, to disclose journalists’ notes, except in limited circumstances such as preventing terrorism or imminent violence.
The PRESS Act, which passed the House by voice vote on Sept. 19, defines covered journalist as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
This bill follows a successful approach enshrined in the law in most states. With little debate and no time required, the U.S. Senate should show that we all agree on the need for a free and unfettered press.
Attorney General Merrick Garland this week formalized a policy he announced early in his tenure that restricts the use of legal tools by federal prosecutors to force journalists to divulge their notes and sources.
This new rule precludes “the use of compulsory legal process, including subpoenas, search warrants, and certain court orders for the purpose of obtaining information from or records of members of the news media.”
Such protections are sorely needed. We’ve seen federal intrusion into the records of the AP, CNN, The Washington Post, The New York Times, and even morning raids to confiscate the phones of activist journalists. Over the years, journalists have been held in contempt and jailed for refusing to reveal their confidential news sources. Most U.S. states have “press shield” laws that protect journalists’ sources and notes, with reasonable exceptions. But the federal government has no such law.
It is heartening to see the Attorney General make this directive a formal rule. We should remember, however, that Department of Justice rules can change with the next Attorney General and the next administration — or even if the current Attorney General changes his mind.
We value the ability of journalists to shield confidential sources because so many times revelations from whistleblowers have revealed wrongdoing or dysfunction that the American people need to know about. Recognition of a shield law as essential to freedom of the press explains why Reps. Jerry Nadler and Jim Jordan, Chair and Ranking respectively of the House Judiciary Committee, led a bipartisan group to vocally support the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden (D-OR) and Rep. Jamie Raskin (D-MD). The PRESS Act passed the House with unanimous support in September.
Attorney General Garland deserves our gratitude for pushing this issue forward and underscoring its importance. All that’s left is for the Senate to seal the deal and join the House in sending the PRESS Act to the president’s desk for signature.
A Death Penalty for Think Tanks?
Perhaps you’ve never heard of the U.S. Maritime Administration (MARAD), an agency of the U.S. Department of Transportation. You might not be interested in MARAD, but MARAD might be interested in you. Let us hope that MARAD does not have reason to want to put you to death.
Harry Byrd Wilt of The Dispatch (paywalled, but the Cato Institute has a good synopsis) revealed that in March 2020 a committee of the maritime shipping panel reacted to the opposition of two libertarian think tanks, the Cato Institute and the Mercatus Center, to the Jones Act – a 1920 law governing shipping. The Jones Act requires the use of U.S. flagged vessels for the transport of items originating at a U.S. port and bound for another U.S. port. Critics say the law inflates the shipping costs for intrastate traffic.
And what did MARAD propose as a response to these criticisms?
“Charge all past and present members of the Cato and Mercatus Institutes with treason.”
Treason, of course, is punishable by long prison sentences and even death. But why put all past and current members of the Cato Institute and Mercatus Center to death for criticizing the Jones Act when we could, with equal justice, put them to death for their positions on “zoning land use planning” and for writing papers with titles like “Improving the Regulatory Process through Regulatory Budgeting”?
On the surface, this is a silly story. But it contains within it a very serious one. One of the long-standing civic norms that has gone by the wayside in recent years is restraint in the use of the word “treason.” Politicians of both parties and of all ideological stripes now freely accuse one of another of being traitors. This is more dangerous than it seems, because in much of the world, loose standards for treason are a way to imprison and sometimes judicially murder critics of the government. From Iran, to China, to Russia, critics of the government are silenced by painting them as acting at the behest of some foreign (usually American) interests.
It is discouraging to see the same impulse emerging here.
Fortunately, the American Founders were alert to the danger that accusations of treason pose to free speech and the free exchange of ideas. In Article III, Section 3, of the U.S. Constitution, they set a very high bar for convicting an American of treason. Treason consists of a citizen who is guilty of “only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Note the use of the word “only.” In addition, the guilty person must either confess or have two witnesses testify against him or her in open court. Furthermore, the Constitution holds that a treasonous person’s guilt cannot be a reason to punish his or her family.
The Constitution is our guardrail against transforming rhetoric about treason into prosecutions. But we cannot rely on that document to shape our norms and political culture. Friedrich Hayek, the Nobel-Prize winning economist and for decades a leading light at the Cato Institute said that “to choose one’s government is not necessarily to secure freedom.” So much free talk about treason, both on the left and the right, betrays a growing desire to use force to silence the other side.
A recent Los Angeles Times editorial recounted how The Baltimore Sun won a Pulitzer Prize this year for unearthing a scandal that forced the resignation of Baltimore’s mayor. The editorial also told of The Boston Globe’s Pulitzer finalist series on how that city’s public schools fail to help even its best students succeed. And yet, The Times revealed, dogged shoe-leather reporting has not been enough to stem the tide of pay cuts, layoffs and furloughs with these and other newspapers. Across the nation, newsroom employment dropped 23 percent from 2008 to 2018.
What to do about the disintegration of local journalism in the face of the digital dominance of Google, Facebook, and Twitter, and the loss of classified advertisement to digital platforms?
The Times recommends federal and state support, stating this could be done in way that wouldn’t compromise the independence of local news. We respectfully disagree. Taking government money would create the appearance of being in the bag for the powers that be, whether that is true or not.
A better solution is emerging – of all places – in Washington, D.C. The full Senate will soon consider a bill sponsored by Sen. Amy Klobuchar (D-MN) that recently moved out of the Senate Judiciary Committee with strong bipartisan support from Sens. John Kennedy (R-LA) and Ted Cruz (R-TX). The Journalism Competition Preservation Act would grant news organizations with fewer than 1,500 full-time employees and non-network news broadcasters a narrow exemption from antitrust law to collectively negotiate payment for their content.
On the other side of the table would be companies that have at least 50 million U.S.-based users or subscribers or market cap greater than $550 billion. Translation – Google, Facebook, and Twitter.
Sen. Cruz had blown up an earlier version of this bill, which secured an agreement from Sen. Klobuchar that the bill would not extend antitrust protection to discussions of content moderation and censorship. That won him over and launched the bill with Republican support.
The bill as it exists now makes great sense. One reason local journalism is ailing is that Big Social Media has been displaying the fruits of local investigative reporting and writing for free. Journalists should be allowed to ask these companies to pony up for the use of their content.
That is one way to create a revenue stream for local journalism that won’t make the news dependent on handouts from government or grants from people and foundations with agendas.
“The Journalism Competition and Preservation Act is a needed correction to the free use of local news by digital giants,” said Rick Boucher, former U.S. Representative from Virginia, and Protect The 1st Senior Policy Advisor. “We wholeheartedly endorse it to protect the role of local journalists in exploring local issues and holding government accountable.”