Archive | Privacy

Senate Judiciary Committee Meets to Discuss Federal Shield Law, S.987

By on September 12, 2013 in Journalism, Privacy

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Natasha Duarte contributed to this post.

The Senate Judiciary Committee is scheduled to meet with lawmakers today to discuss the federal reporter shield bill proposed by Senator Schumer (D-NY) in May of this year. Tune in to a live webcast of the meeting beginning at 10:00am.

The Free Flow of Information Act, S.987, includes some protection for reporters who are ordered to divulge confidential sources as part of a federal investigation. The public push for a federal shield law has gained traction over recent months as the public reacted to governmental invasions into journalist organizations like the Associated Press.

Although the bill seems to be a positive step towards granting journalists protection, critics have noted one troublesome section of the bill that limits the definition of who constitutes a “journalist” or a “covered person.” Senator Dianne Feinstein (D-Calif.) has proposed an amendment to S.987 that would limit the classification of a journalist to a salaried agent of an organization that “disseminates news or information.”

The Electronic Frontier Foundation outlined Feinstein’s proposed amendments to the definition of ”covered person”:

  • A person working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”
  • either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or
  • working as a student journalist “participating in a journalistic publication at an institution of higher education.”

Senator Feinstein cites a need to limit the bill’s protection from including those “who aren’t really reporters at all, who have no professional qualifications” and says she believes the bill should be applied to “real reporters.”

Critics of the proposed amendments have argued that a narrow definition of what it means to be a journalist doesn’t fit the ever-evolving model of reporting. Technological developments over the last two decades have resulted in a shift away from the traditional definition of what it means to be a “journalist.” Reporting is increasingly being done by citizen journalists, bloggers, and independent reporters who are not employed by traditional media outlets.

This model will no doubt continue to evolve along with new technology. Critics of the bill suggest that reporting is an act rather than a status and that those engaged in reporting should be protected from having to reveal their confidential sources regardless of medium, employer, or salary.

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Amicus brief argues NSA surveillance violates freedom of the press

By on September 11, 2013 in First Amendment, Journalism, Privacy

The Reporter’s Committee for the Freedom of the Press filed an amicus brief in ACLU v. Clapper arguing that government collection of call records violates the First Amendment freedom of the press by impeding reporters’ ability to maintain confidential sources.

The brief supports the ACLU’s motion for a preliminary injunction to stop the NSA from collecting logs of the time and duration of phone calls made within the United States. The ACLU’s complaint includes a First Amendment claim based on the freedom of association — the right to organize and express political ideas as a group — but RCFP’s brief focuses on the right of the press to gather news.

The brief argues that mass surveillance makes sources more wary of contacting journalists and emphasizes that confidential sources are critical to accurate reporting on important issues.

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Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

By on August 23, 2013 in Internet, Privacy, Transparency

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.

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EFF Weeks 8-9: How the NSA’s mass data collection violates the First Amendment

By on July 25, 2013 in First Amendment, Internet, Privacy

EFF filed a lawsuit last Tuesday against the National Security Agency for its mass collection of Verizon customers’ phone records. First Unitarian Church of Los Angeles v. National Security Agency was filed on behalf of a diverse group of 19 organizations and focuses on an important First Amendment right: the right of association. Protecting associational freedom is increasingly important in the context of the government’s collection of metadata — pieces of information, such as the numbers a person calls, which, when put together, reveal information about that person’s associations, including organizations he or she belongs to.

Background: The First Amendment Freedom of Association

The First Amendment right of association is based on the freedom to assemble without government interference. In a landmark 1958 case, NAACP v. Alabama, the Supreme Court recognized that government access to people’s associations creates a “chilling effect” — it makes people less likely to associate with certain organizations. In NAACP v. Alabama, the Court held that it would violate NAACP members’ First Amendment rights for the state to force the organization to turn over its membership lists. The right to organize and assemble without government interference is so fundamental because these associations are forums for political expression and the advancement of ideas — the type of speech the First Amendment was designed to protect.

While discussions about data privacy tend to focus on the Fourth Amendment, First Amendment rights are equally implicated in electronic surveillance. The ability to keep one’s associations private is critical to preserving the right to freely associate.

The case against the NSA

EFF’s case argues that when the NSA collects data about the numbers a person calls and how often, that data can reveal a person’s protected associations, and the surveillance constitutes an interference with the right of association. To illustrate that point, EFF joined with 19 different organizations from across the political spectrum that focus on a range of issues, many of which conflict with one another. These organizations include churches, marijuana legalization advocates, and gun owners’ groups, to name a few. Many members of these organizations hold controversial views and depend on the ability to express those views as a group, but fear individual exposure.

What do the plaintiffs have to hide?

The potential chilling effects and the need for privacy are perhaps best expressed by Gene Hoffman, Chairman of Calguns Foundation, a gun ownership rights group. The group runs a hotline for gun owners who have questions about California gun laws. “California is a difficult place to live if you’re a gun owner,” Hoffman said in a press conference on EFF’s new case. “People are turning to our hotline specifically because they didn’t want to have a record created.” He mentioned that the people who have the most at stake might be those who belong to multiple organizations with potentially conflicting views: “If you are a supporter of marijuana legalization…and you were known to have phoned both [our hotline] and NORML [a marijuana legalization advocacy group], it could cause people to ask questions you didn’t want to have asked.”

New developments: Congress rejects legislation to curtail NSA surveillance

In a close vote yesterday, the U.S. House of Representatives voted against an amendment that would have cut funding for the NSA’s mass surveillance of call records. By striking funding for bulk data collection, the bipartisan amendment would have required Foreign Intelligence Surveillance Court orders to pertain to a person already under investigation. The current legal authority doesn’t require the FISA court to make a showing of suspicion that a person has engaged in terrorism or any illegal activity before it collects data. This lack of standards has allowed the NSA to engage in the mass collection of all Americans’ phone call records. The amendment failed in an extremely close vote of 205 to 217 and garnered both Democratic and Republican support.

Off-topic: Cute pictures of ducks

It’s not uncommon to have three dogs in the office on any given day, but last week one of EFF’s technologists brought these ducklings to work.

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