Author Archives: Camille Fassett

An important free speech statute that protects journalists in Texas is in danger

Alan Kotok
Alan Kotok

Back in 2005, a local newspaper in Texas was sued by a housing developer for its investigation, claiming that the paper’s reporting was a defamation attempt. And in 2008, a home health care business sued FOX 4 after it exposed alleged widespread fraud carried out by the company.

These suits are representative of the meritless legal action that news organizations in the state of Texas were vulnerable to until the passage of the Citizen Participation Act in 2011. Now, that statute is in serious danger.

The Texas legislature is considering narrowing the state’s law that allows courts to quickly dismiss baseless libel lawsuits that attempt to harass and intimidate those that report on or criticize powerful individuals and corporations — including journalists and news organizations.

The 2011 Citizens Participation Act (TCPA) offered protections against these silencing legal attacks, called ”strategic lawsuits against public participation”, or SLAPP. Texas’s anti-SLAPP law was backed from the beginning by a large coalition of media organizations, some of which had been previously sued.

Freedom of the Press Foundation has written previously about SLAPP lawsuits, and the dangerous implications they could pose to protest, free speech, and press freedom.

First Amendment attorney Laura Prather was involved with the passage of the 2011 statute, and she continues to fight against SLAPP in Texas.

“People were seeing that there was a rush of litigation against individuals and public interest groups when they spoke out, and there was interest at that time in preserving people’s free speech rights,” Prather said of the political climate in the Texas legislature at the time the statute was passed.

Now, she says, vocal opponents are pushing for the law to be narrowed in a way that strikes at the heart of the law, which would undermine the important protections it has codified. The legislative effort by lobbying group Texans for Lawsuit Reform to weaken TCPA — HB 2730/SB 2162 — is outwardly an attempt to cut down on the instances in which the law is used to dismiss “legitimate” libel lawsuits, but Prather notes that the vast majority of the time, the statute is used as intended.

“The citizens have overwhelmingly benefitted from this law,” she said. “You can’t even measure the amount of times it has deterred SLAPP lawsuits.” Any refinement of the statute, according to Prather, should be done with a scalpel rather than a sledgehammer.

“The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law,” wrote Rick Blum, Policy Director at Reporters Committee for Freedom of the Press. “The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern. This would eliminate clear protection under TCPA for meritless defamation lawsuits.”

A narrowed, less robust anti-SLAPP statute in Texas threatens such protections elsewhere, according to Prather. Many anti-SLAPP provisions across the country are based on Texas’s, which is particularly robust.

“Speech will be chilled, because [news organizations] won’t necessarily have the resources to fight against meritless lawsuits if they won’t be able to cover fees. They may self-censor out of caution because they can’t afford a lawyer, and even when they can, media organizations and journalists will be left in the court system for far longer.”

A group of Texas news organizations and transparency groups are joining together to oppose the bill and maintain the state’s strong free speech-protecting statute.

“The heart and soul of this statute must be preserved,” reads the coalition website. “The Texas Legislature shouldn’t allow this effective and equitable law to be eviscerated and the citizens of Texas to be deprived of its free speech protections.”

The Freedom of Information Act is getting worse under the Trump administration

Gage Skidmore trump

Donald Trump speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

Gage Skidmore

More than two years ago, a developer and researcher wants to know what changes the Travel Security Administration (TSA) made to its pat-down procedures at airports around the country. A TSA spokesperson acknowledged changes in a Bloomberg article on Mar. 3, 2017, so days later, Parker Higgins — now Director of Special Projects at Freedom of the Press Foundation — filed a Freedom of Information Act (FOIA) request to learn more.

It’s almost April 2019, and Higgins has yet to receive any documents responsive to his request. Higgins filed it through government transparency website MuckRock, so he’s been automatically following up on his request every month for nearly two years. At times, TSA has given him an estimated date at which his case might be complete. But the dates fly by, with no real updates provided to the requester.

Higgins is not alone in being kept waiting for documents. The data that formed the basis for an article my colleague Freddy Martinez and I wrote about border agencies’ asset seizures was obtained through a FOIA request that was filed about a year before any records were released. Another requester who filed a request with the FBI in July of 2018 was told that the agency was working on processing requests that were filed in 2016.

Waiting years for disclosure of records through FOIA is not unusual, and it’s not unique to requesters in the Trump era. In rare cares, requesters can even wait decades — like Monte Finkelstein, who requested records in 1993 that he hoped would add to a history book he was writing — only to give up 20 years later and publish his book without them.

For all its flaws, FOIA remains a critical tool for journalists, activists, and community residents who seek to illuminate government activities. But it’s getting harder.

“On a practical level, it’s becoming more and more difficult for individuals—including journalists—to pursue FOIA requests as individuals,” corroborates First Amendment and FOIA attorney Kevin Goldberg.

FOIA: A vital but broken law

On Dec. 28, 2018, the Department of the Interior filed major proposed changes to the way the agency processes FOIA requests. Critics say if adopted, the new rules could make it easier for the agency to deny FOIA requests, take more time to respond, and place a heavier burden on requesters to state even more explicitly to state what they are looking for.

One proposed change could place a monthly cap on the number of FOIA requests each group or individual can file monthly. The Department of the Interior FOIA Policy Office did not immediately respond to questions about the status of these changes, but public records attorneys are concerned.

“Not processing requests that require research is just silly,” said Adam Marshall — an attorney at Reporters Committee for Freedom of the Press—on the Interior Department’s changes. “Every request requires research.”

“They are depriving the American people of their right to know what the government is doing — they are only going to cause themselves more fights and more litigation,” Nada Culver, senior counsel at The Wilderness Society, told The Hill.

Marshall notes that ex-EPA Administrator Scott Pruitt’s decision not to proactively disclose his official calendar is another example of the way agency brings unnecessary litigation itself.

“There have been so many FOIA requests for his calendar, which is a basic thing that should have been made available online anyway,” he said “The EPA could have saved itself many lawsuits.”

The Project on Government Oversight (POGO) — an international effort on open governance — notes that according to the Trump administration’s own data, the Interior’s FOIA office has seen a 30 percent spike in FOIA requests filed between fiscal years 2016 and 2018.

Departments from the Justice Department to the EPA and the Interior have been hit by huge increases in FOIA lawsuits under the Trump administration.

Foia project lawsuits

FOIA lawsuits against the Department of Justice in fiscal years 2001 — 2018

The FOIA Project
They aren’t alone, and their numbers are representative of FOIA lawsuit spikes across federal agencies. 

“It’s definitely accurate to say that both FOIA requests and lawsuits have risen,” said open government advocate Alex Howard. “And reasons for that include new technologies like MuckRock, so that it’s easier to file requests.” (The government transparency and news website facilitates a simpler FOIA process for the public, who can file requests through the website’s platform, which automates regular follow-ups on requests.)

“Lawsuits are significant because that’s generally a tell that affirmative disclosure isn’t where it should be, and that FOIA officers aren’t releasing information upon request. It’s a capacity issue, a political will issue, a training issue, and a funding issue.”

Obama and Trump on transparency: Bad and worse

The Obama administration promised to be the most transparent in history, employing lofty rhetoric around disclosure and access. His tone around public records about open governance differed wildly from Trump’s, but some transparency advocates argue that Obama did not just fall short of his goals — parts of his administration worked to ensure his commitments were never realized at all.

On Barack Obama’s first full day in office as president, he issued a memo on FOIA, and called on government agencies to “usher in an era of open government.” He also instructed Attorney General Eric Holder to release new guidelines that would reaffirm the administration’s commitment to transparency. (Many presidents have released memos early in their administrations that clarify how they intend to handle FOIA.)

Holder’s guidelines made central
the “presumption of disclosure” at the heart of FOIA, and encouraged agencies to make disclosures of records, and to release them in parts when releasing in full would be impossible.

This presumption is a critical principle that has informed understandings of access for journalists and the public, but the Obama administration also worked to undermine its own publicly-stated commitment to openness.

Behind the scenes, Obama had lobbied to kill reforms to the Freedom of Information Act in 2014 that would have codified these new standards into law — even through they had virtually unanimous support in Congress. The Obama Justice Department opposed the bill , despite the fact that it was based on many of its own policies, and would have codified the very “presumption of disclosure” principle that Obama had declared so early into his administration.

When this became public in 2016 after a FOIA lawsuit by Freedom of the Press Foundation, the administration was forced to publicly commit to signing a similar bill that passed in Congress that year.

Transparency was bad under Obama, but there’s an argument to be made that it’s gotten worse under Trump.

Aside from the meaningfulness of such commitments, Trump did not release any memo on how he expected government agencies to handle public records requests. The Trump administration’s inaction and silence on FOIA speaks volumes. For him, public records and open governance are certainly not priorities, seemingly nowhere on his radar.

“I’m not even sure Trump knows how to spell FOIA,” Goldberg joked. “If you came to him and told him this is how people get information about you and your administration, I’m sure he would explode, and staffers would have to tell him that he can’t do anything about it.”

In some cases, Trump has silently undone transparency mechanisms, catalyzing an erosion of accountability principles. The Obama administration participated in POGO, the international open governance partnership under which governments like Mexico and South Africa convene to submit plans on how they plan to increase access and openness.

The Trump administration’s plan was due to POGO in 2017, and Alex Howard says that the U.S. will be made inactive in the partnership if it does not submit a plan in the next year. “It would not be unlike withdrawing from the Paris Accord,” he said. “They are non-binding, but it’s a real withdrawal from public trust in government.”

“POGO is one of the big things that I would have identified specifically as an area where the positive gains by the Obama administration have stopped because the Trump administration hasn’t followed through,” said Goldberg.

“This partnership was probably some show, but by not participating ourselves, we lose the moral authority to say other governments should do better. It provided a mechanism for agencies to push better for transparency, and it’s largely symbolic, but with POGO at least there was some bar, some sort of plan. Sometimes they were even met.”

Steven Aftergood thinks that top-level leadership around FOIA and openness, while not everything, matters quite a lot.

“By its nature, FOIA goes against the grain of government bureaucracy, and there is built-in resistance to its implementation. When leaders endorse FOIA and embrace transparency as a value, it can mitigate such resistance—though it does not eliminate it. So even if the Holder memo and similar issuances were not decisive in their impact, they helped to nurture a conversation and to promote a culture of compliance with FOIA.”

“If you don’t at least set the tone, you are certainly not coming to meet any basic bar you’ve set, so there won’t be any initiative from lower down,” said Goldberg.

But even more important than tone and rhetoric, according to Goldberg, is real commitment to transparency at the highest level. “Every agency has limited bandwidth and funding, and a lot of discretion over how they will accomplish their goals, given these limitations. Some prioritize other things, but some prioritize FOIA. And when the highest of levels of an agency say, ‘Our FOIA backlog is embarrassing,’ and reallocate funding and people to get it done,’ that commitment goes a long way.”

And when it comes to the material reality of transparency under Trump, the public is experiencing record levels of government non-compliance.

“People who asked for records under the Freedom of Information Act received censored files or nothing in 78 percent of 823,222 requests, a record over the past decade,” according to analysis by the Associated Press.. “When it provided no records, the government said it could find no information related to the request in a little over half those cases.”

The Trump administration’s FOIA offices’ record levels of censorship provides a reliable indicator on how unimportant he finds transparency to the public.

What's next for FOIA?

Traditional means of obtaining information, such as White House press briefings—in past administrations held every day—are decreasing in frequency. When Trump holds news conferences, he sometimes takes no questions at all, preventing an opportunity for journalists to push back on the president’s lies. Even for journalists at large and well-resourced newsrooms, the tools available to hold power to account are dwindling, and those that remain may be substantially less useful than in previous years.

“News organizations are being lied to, and maybe journalists can’t trust a source, and the government won’t actually tell them what’s happening,” said Alex Howard. “Suits are rising because people are lying to journalists and the public, and the government won’t even offer comment.”

To compensate for a less open government, in which fewer officials answer fewer questions, some journalists increasingly rely on public records.

But if FOIA becomes more difficult and less of a reliably useful tool every year, when each FOIA request is a massive fight that is increasingly likely to require a lawsuit, the number of people that can use it to obtain documents dwindles, too.

Who is FOIA for?

One of the many things FOIA is such a useful tool for transparency is that anyone can file a request for any record that exists at all. Whether a senior New York Times reporter, an early career journalist with a lot to prove, or a concerned citizen, anyone has the ability to obtain government secrets.

Alex Howard brings up BuzzFeed investigative reporter Jason Leopold as a prime example of this. “It’s no accident that BuzzFeed punches way above its weight, according to the organization’s size. Leopold’s success in prying documents is huge. He’s got the receipts.”  

With the power of a FOIA request, ideally, a young journalist could launch herself into the world of hard-hitting investigative journalism, and a citizen could obtain evidence of government corruption.

“Current political appointees prefer to operate in secrecy and regard the Freedom of Information Act as a nuisance, not a responsibility,” Jeff Ruch, executive director of Public Employees for Environmental Responsibility, said in a statement about the Department of the Interior’s proposed changes.

According to several of the transparency advocates and attorneys I spoke to, FOIA will never change meaningfully without an investment of real resources. To do so, they say, will require a true commitment from the highest levels, and, critically, funding.

“How can we improve FOIA and reduce litigation, not by denying requesters the right to sue, but by making it less necessary? How can we build a FOIA that actually works? More staffing, and more training,” emphasized Morisy.

Goldberg says fundamental changes would require “a shift in leadership, a shift in tone and attitude, and critically an increase in funding. “We need to think smarter about FOIA, and this administration, like several prior, has not even begun to think about what that would look like meaningfully.”

In a brewing First Amendment fight, California’s Attorney General threatens journalists for possessing a public records document

DOJ CA
Michael Patrick

The California Attorney General’s office is threatening reporters with legal action merely for possessing a list of the state’s law enforcement officers that have been convicted of crimes — obtained through a public records request.

In a Jan. 29 letter to journalists Jason Paladino and Robert Lewis, California Attorney General Xavier Becerra’s office called possession of the list a crime.

“You are hereby on notice that the unauthorized receipt or possession of a record from the Department's ACHS or information obtained from such a record is a misdemeanor. (Pen. Code § 11143.),” reads the letter from Becerra’s office.

The letter demanded that the reporters destroy the list and refrain from disseminating it, and threatened that “[i]f you do not intend to comply with our request, the Department can take legal action to ensure that the spreadsheets are properly deleted and not disseminated.”

Lewis and Paladino both said that they will not comply with the order to destroy the record.

Lewis was doing some reporting on police that had been arrested, and became interested in which agencies might have records that could illuminate how frequently this happens. Around the same time, Paladino sought data that would shed light on when police officers were disqualified from their positions due to being convicted of crimes. 

The reporters — both affiliated with UC Berkeley’s Investigative Reporting Program (IRP) — filed similar requests under California’s public records law in December with the Commission on Peace Officer Standards and Training (POST).

“In January, I got an email that said, ‘Here are the records,’” said Lewis. “But they sent us something we didn’t ask for — it was some sort of redacted training program, completely unrelated to the request. I reached back out and said that they sent the wrong thing, and they said, ‘Sorry, here is the correct document.’”

Lewis and Paladino received a list that included 12,000 names of current and former California police officers, as well as police applicants, that were convicted of crimes. In their report about the list and Becerra’s legal threats for the East Bay Times, they noted that the list included Greg Jeong — who was convicted of impersonating a police officer after failing a police field training program — and Hayward police officer Joshua Cannon, who was convicted of driving under the influence and remains on the force.

While Becerra’s office and POST both sent letters to Lewis and Paladino claiming that the record was released “inadvertently,” it was only disclosed after much back and forth between POST and the reporters.

“It’s not like someone clicked ‘send’ on the wrong thing! They did that the first time!” said Paladino, referring to POST initially emailing the reporters an unrelated record.

“As a reporter, I had the Marine Corps once give me documents that were not fully redacted involving a crash that happened. They weren’t sending me intimidating legal letters; they called me and said they messed up, and asked me not to make protected information public, like people’s names.”

In contrast, Becerra’s office has chosen to respond by threatening reporters with an injunction and even criminal charges.

David Snyder, an attorney at the First Amendment Coalition, said he had never heard of a case like this, and told Freedom of the Press Foundation that two aspects of Becerra’s legal threat are highly unusual:

“One is the somewhat veiled threat to criminally prosecute them for mere possession of this data. And the second is the less veiled threat to get a court order — an injunction — to prevent publication of it,” Snyder said. “As for the first, which says that it’s a misdemeanor to possess the list, the Supreme Court has made clear that if a journalist or anyone else lawfully receives information, they are protected from civil liability for publishing it. And the threat to bring criminal charges is totally groundless under the First Amendment,” he continued.

Snyder also noted that “the California statute that is cited in the letter specifically carves out journalists — that statute that they rely on, consistent with the First Amendment, says you can’t charge journalists with this kind of activity.”

Courts have generally held that prior restraint that come in the form of a court order prohibiting publishing is an unconstitutional violation of the First Amendment. Cases in both the federal Supreme Court and California Supreme Court indicate any prosecution here would also be unconstitutional.

In a statement provided to Freedom of the Press Foundation on Wednesday, a spokesman for the California Department of Justice doubled down on the contention that the journalists are breaking the law:  

“The UC Berkeley Investigative Reporting Program is not an entity permitted to possess or use this confidential data. The UC Berkeley Investigative Reporting Program chose to publish the confidential information of Californians despite being alerted by the Department of Justice that doing so was prohibited by law.”

But as Paladino noted, the list is, fundamentally public information. “It’s just convictions, not arrests,” he said. “Maybe there could be more of a privacy concern if they weren’t convictions. But anyone can walk into a courthouse, search the name of a cop, and see what's on the record. It’s summarized public information.”

And besides the three examples of police officer convictions noted in the East Bay Times report, the list has not been published at all in any broad sense.

“Part of the reason we haven’t published is to do due diligence,” Lewis said. “I’ve been a reporter for a number of years, and I’ve done some pretty tough stories, but this is the first time I’ve ever been threatened by a top law enforcement official in this way. It was pretty stunning to be, and it continues to be.”

When Freedom of the Press Foundation followed up with the AG’s office to clarify whether they recognize any of the serious First Amendment concerns with their letter, a spokesperson passed along a statement from Attorney General Becerra himself:

“We always strive to balance the public’s right to know, the need to be transparent and an individual’s right to privacy. In this case, information from a database that’s required by law to be confidential was released erroneously, jeopardizing personal data of individuals across our state. No one wants to shield criminal behavior; we’re subject to the rule of law.”

His response included no reference to the First Amendment.

The US government is increasingly targeting journalists at the US-Mexico border

ariana drehsler

Unlike the U.S. side, where onlookers are supposed to keep a distance, those at Las Playas de Tijuana in Mexico are allowed to get close to the border wall that separates the two countries.

Courtesy Ariana Drehsler

Journalists covering the arrival of caravans of migrants from Central America along the U.S. southern border have faced harassment, additional screenings, and targeting by both U.S. and Mexican authorities.

The U.S. Press Freedom Tracker has documented at least five journalists who have been stopped on the U.S. side of the border since December 2018 in the course of doing their jobs covering the migrant caravan. Some have been stopped numerous times, where they are put in situations that could threaten their privacy, reporting processes, and confidential sources.

In addition, Mexican authorities denied entry to at least two journalists — along with two immigration attorneys — who were attempting to travel to the country last month, making headlines and sparking concerns about public access and press freedom issues along the border.

The journalists’ — Kitra Cahana and Daniel Ochoa — and the attorneys’ accounts of what happened were nearly identical. Mexican authorities detained them when they attempted to enter, informed them that their passports were “flagged,” and then turned them away.

“I’m in limbo,” Cahana told the Los Angeles Times. “What kind of list am I on? Who put me on this list? And how many journalists is this affecting?”

It’s unclear whether it was the Mexican or United States government that placed an alert on their travel documents, but both journalists reported that their passports had previously been photographed by both U.S. and Mexican authorities.

These passport alerts have not only impacted journalists trying to enter Mexico, but also those attempting to enter the United States. While entering the country via San Diego at the end of last year, freelance journalist Ariana Drehsler was told by border authorities that her passport had been flagged, but that they did not know why.

Customs and Border Protection did not provide details on what these “flags” on passports like Drehsler’s might be or why they may have been placed. But since then, she has been subjected to secondary screenings — including questionings that made her feel like “an informant,” and searches — every time she has entered the United States. She isn’t the only one.

Manuel Rapalo, a journalist who freelances for Al Jazeera, said he has been stopped at least three times at the U.S.-Mexico border in 2019. (Read details about each border stop on the US Press Freedom Tracker.)

Out of concern about the frequency of equipment searches during these stops, he said he has changed his behavior to ensure his sources and reporting materials are protected. He brings new memory cards with him on each reporting trip to minimize what material could end up in border officials’ hands.

The numerous journalists stopped at the border and questioned about their work while covering the arrival of Central American immigrants to Mexico aren’t the only ones that have been targeted by CBP recently. In January, a filmmaker had his device taken by order officials, who demanded he unlock his phone and then took it into a different room. And when an Al-Jazeera anchor had his device seized at the border, CBP agents asked him about his social media accounts.

A recent report by the Committee to Protect Journalists found that between 2006 and June 2018, the 37 journalists surveyed for the report were collectively stopped for screenings more than 110 times. In many cases, journalists were asked to unlock their electronic devices, answer invasive questions about their reporting, and had their personal belongings searched. In a particularly egregious case in 2016, well-known photojournalist and Canadian citizen Ed Ou was even denied entry into the United States.

CPJ found that CBP’s broad and relatively unchecked powers pose a significant press freedom threat — particular since the agency can share the information it gains for journalists’ devices with other federal agencies, including sources and sensitive documents.

“With a more aggressive administration openly hostile to the press and leaks, CBP should implement tighter guidelines to protect the First Amendment rights of all individuals crossing the border,” CPJ concluded.

“Press freedom rights should not cease at the border,” said Freedom of the Press Executive Director Trevor Timm. “These egregious and invasive border stops are a threat to both journalists and their sources, and they give authoritarian countries every excuse to use similar tactics on their borders as well. CBP and the Trump administration need to publicly account for these disturbing events.”

How Trump’s government shutdown ground transparency to a halt

redactions
WikiMedia Commons

During President Trump’s shutdown of parts of the federal government over a border wall, transparency was declared a nonessential part of the government’s operations—with very real effects on the public’s right to know.

Last Thursday—the day before Congress signed a short-term bill ending the 35-day partial government shutdown—I spent several hours contacting numerous federal agencies’ public information and FOIA offices, in an attempt to understand which were accepting and processing requests, which were accepting new requests but not processing them, and those that were doing neither.

Considering the Department of the Interior had shut down its online FOIA request portal altogether due to the shutdown, it might seem like a reasonable assumption that no federal agencies would be processing FOIAs due to the lapse of funding. An Interior Department spokesperson noted that "FOIA requests are not directly related to protecting life and imminent threats to property."

But at least some federal FOIA requests were still slowly moving along—security researcher Trammell Hudson received an update on a request with the FBI on Jan. 9, in the midst of the shutdown. And the Justice Department's FOIA handbook clearly states that FOIA officers were still obligated to fill requests within the appropriate timeline—even in situations of government shutdowns—so I wanted to clarify.

The FBI employee that answered my phone call told me that questions about FOIA processing would be a question for FBI headquarters. But upon calling FBI headquarters, there was no one to answer the phone. I called a dozen different CBP and ICE public affairs officers, and never once reached a human. Some voice mail boxes said that they were unable to return messages due to the furlough.

On Jan. 28, days after making the calls, a spokesperson for the Environmental Protection Agency finally sent me an email: “EPA will start processing FOIA requests now that the shutdown has ended.”

I was, for every agency I contacted, unable to confirm or deny whether it was processing FOIA requests at all. (I suppose I was GLOMAR’ed yet again.)

“There is no basis for government to blow its deadlines just because of shutdown,” said Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press. “But as a practical matter, that’s exactly what we’re seeing. Even under the guidance of previous shutdowns, agencies have to count the days that they took to respond. And this is really damaging the public's right to access government records.”

According to transparency activist and technologist Freddy Martinez (who was previously a fellow at Freedom of the Press Foundation), it’s important that government agencies count the number of days that a FOIA request goes untouched. If an agency does not respond at all to a request within 20 days, the requester has the right to sue.

“Making an exception to the deadlines the government has in place, for a government shutdown, would weaken FOIA and interfere with people’s right to sue. The government has seen those deadlines as necessary, considering they are the law,” he said.

Litigation over FOIA requests is not only more common than ever, but some also argue that lawsuits are increasingly necessary to obtain government records in the face of pervasive bureaucratic resistance.

Adam Marshall noted that during the shutdown, all of his federal FOIA litigation literally ground to a halt. “It’s disturbing because by the time a requester is at the point of litigation, people have invested time and money into an attorney and lawsuit.”

Another prominent FOIA attorney corroborated that his federal cases were also delayed. “I can tell you all of my FOIA litigation is on hold,” said the Electronic Frontier Foundation’s David Sobel. “The Justice Department has moved for stays in all of my pending cases and my understanding from other attorneys is that that’s pretty much across the board—because the assistant US attorneys who represent in these cases are furloughed.”

Kevin Goldberg—a First Amendment and FOIA attorney—said he would imagine that under any administration, FOIA would be declared a nonessential function of the federal government.

“I don’t think that’s a change, and I’m not sure it’s sort of specific action on [Trump’s] part to shut things down,” he said.

This most recent partial shutdown was certainly not the first of its kind, and in previous shutdowns, such as one in October 2013 during the Obama administration, FOIA operations similarly shutodwn. But this most recent instance—which stretched from December into late January—was the longest in history. Whether the effects of the shutdown on FOIA were intentional or not, they were very real.

“If government shutdowns become more frequent, and particularly if they become longer and longer, I could see them start to affect the process and usefulness of filing FOIA requests—including the litigation process—in really troubling way,” said Martinez.

Michael Morisy, cofounder of MuckRock, noted that FOIA offices were already stretched to the breaking point before Trump’s hiring freeze and certainly before the partial shutdown. “Telling FOIA officers that they’re without pay, when they weren’t paid well in the first place?”

Federal court dismisses dangerous charges in lawsuit that threatens First Amendment

logging
WikiMedia Commons

Abusive ‘racketeering’ charges in a lawsuit brought by a logging company against Greenpeace and other environment groups have been dismissed. The case is a prime example of how powerful corporations bring lawsuits primarily in an attempt to drain their critics of resources and intimidate them into silence.

The lawsuit brought by Resolute Forest products against Greenpeace Inc., Greenpeace Fund, Greenpeace International, Stand.earth, and five individuals is a classic SLAPP lawsuit—”strategic lawsuits against public participation”—which is a tool often used by corporations to suppress First Amendment-protected speech. While this lawsuit was brought against advocacy groups, news organizations are also particularly vulnerable to them.

SLAPP suits usually focus on specious libel claims, but this time, Resolute Forest went a step further and included racketeering charges under the Racketeer Influenced and Corrupt Organizations Act (RICO)—a controversial, sweeping law that provides for huge penalties for acts performed as an “alleged criminal enterprise.”

It’s a lawsuit against environmental groups, but one with huge implications for political advocacy more generally, and for press freedom. SLAPP lawsuits—especially with RICO charges—often intend to hold small nonprofits responsible for acts committed by unaffiliated groups or individuals.

This type of application of the law could have had severe implications beyond the case, and ensure all sorts of advocacy organizations and even news outlets.

As we wrote last year in our coverage of a similar lawsuit by a pipeline company, which attempted to hold Greenpeace, a small environmental news publication, and other groups responsible for alleged criminal activity by other entities:

“The press freedom implications of this claim are chilling. Say a news organization like the Washington Post publishes a story about activists boycotting internet services providers who refuse to treat digital content neutrality. Under this legal theory, internet service providers could conceivably sue the Washington Post and try to hold it responsible for the actions of unaffiliated individuals or groups because they read the story and took independent action.”

A California judge thankfully tossed out the racketeering and charges, and a majority of Resolute’s defamation claims. Greenpeace and the other organizations named in the lawsuit will continue to fight the remaining charges.


Greenpeace USA General Counsel Tom Wetterer issued the following statement:

“From day one, it was clear Resolute intended to bully legitimate advocacy organizations and forest defenders by abusing laws designed to curtail the mafia. The judge made it clear this would not be tolerated...Today’s landmark decision should be a lesson for other corporate bullies attempting the same underhanded legal tactics, like Energy Transfer, that they will not succeed in attempts to criminalize free speech. We will continue to speak truth to power.”

It’s worth noting that Resolute Forest Products is the largest newsprint producer in North America. While newspapers across the country are doing important work of publishing the news and keeping the public informed, they are doing so on materials produced by a company that targets advocacy groups and attempts to silence free expression.

This isn’t the first time Resolute Forest Products has sued environmental advocacy groups—this is the logging company’s second defamation case against Greenpeace, the first of which was brought against Greenpeace Canada and is still pending. And Resolute Forest Products is far from the only corporation that has used just tactics to attempt to criminalize legitimate advocacy—groups that advocated against the construction of the Dakota Access Pipeline were hit by a $900 million lawsuit accuses them of defamation and racketeering, and essentially calls them a criminal enterprise. We have previously documented how SLAPP suits can also intimidate and even bankrupt news organizations who publish critical coverage.

These lawsuits post huge threats to political advocacy and press freedom. While most of the charges against Greenpeace were dismissed, some do remain. In our mind, the entire lawsuit should be dismissed immediately.

Another ‘ag-gag’ law struck down as a First Amendment violation, yet several states still have them in place

piglets
Bicaksi

Despite a long history of journalists going undercover to investigate and shed light on secretive industries like the animal agriculture industry, several states have statutes—commonly known as ‘ag gag’ laws—that criminalize reporting on animal abuse at farms. Last Wednesday, a federal judge ruled Iowa’s such law unconstitutional on the grounds that it violates the First Amendment.

The decision was welcome. The ostensible function of ag-gag laws is to protect the animal agriculture industry from public scrutiny, and state lawmakers have barely hid the fact that they have no problem trampling on press freedom rights to pass them.

Just before Iowa’s statute—which threatened undercover journalists or activists who reported on farm activities with up to a year in jail—became law in 2012, several high profile farm investigations put Iowa’s animal agriculture industry in the spotlight. At one farm, a 2011 undercover investigation revealed reports of workers throwing piglets onto the floor. Another investigation exposed farm workers beating pigs with rods, kicking them, and sticking clothespins in their faces.

As the judge in the case described, lawmakers advocated for the bill that would become Iowa’s ‘ag gag’ law, in part, by explicitly arguing it could prevent ‘harms’ that might result from investigative journalism.

Last week’s ruling is only the latest state ag-gag law to be struck down by US courts. In 2017, a federal judge ruled Utah’s equivalent violated the First Amendment. A 9th Circuit Court of Appeals court ruling struck down key parts of an Idaho ‘ag gag’ law earlier last year, and a judge found a Wyoming statue that was highly similar to Iowa’s unconstitutional in October 2018. (Read more about the press freedom implications of ag gag laws here.)

But other states still have such statutes in place that continue to punish undercover investigations—and most of those are states in which the agriculture industry is especially powerful, like North Carolina, Kansas, Missouri, and Arkansas. North Carolina’s sets a civil penalty of $5,000 per day for anyone who records footage on an employer’s property and uses it to “breach the person’s duty of loyalty to the employer.” Violators of Missouri’s law could be subject to up to four years in prison.

Legal challenges to Kansas and North Carolina’s ‘ag gag’ laws are pending.

“These kinds of undercover investigations at factory farms have found sadistic workers kicking pigs in the head, spray painting them in the eyes, stomping and throwing chickens and turkeys like footballs, and smashing piglets’ heads against concrete floors,” Matthew Strugar, one of the attorneys who worked on the Iowa case, told Freedom of the Press Foundation.

“These exposes have drastically changed the public conversation about our treatment of farmed animals,” he added. “So the implications [of this ruling] are that the public will continue to be able to be informed about this cruelty, and, hopefully, the statehouses and agriculture industry will know that they can't get away with passing these unconstitutional laws.”

Strugar emphasized that the ruling has huge implications for journalism, and noted that reporters investigate all sorts of industries besides animal agriculture.

As long as any laws that criminalize undercover investigations are in place, journalists and whistleblowers face huge legal risks for bringing public interest information forward. Ag-gag laws pose a direct threat to journalists’ constitutional rights and until every one of these state laws is struck down or repealed, countless Americans’ First Amendment rights are in serious jeopardy.

The legal challenge to Iowa’s ag gag law was filed in October 2017 by animal rights groups including the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, and People for the Ethical Treatment of Animals (PETA).

Canadian police block journalists from covering pipeline protest in British Columbia

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Bilfinger SE

The Royal Mounted Canadian Police are preventing journalists from covering members of the Wet’suwet’en First Nation’s opposition to the construction of a natural gas pipeline that would run through British Columbia.

Members of the Wet’suwet’en First Nation—including the hereditary leaders—began running checkpoints that block access to the planned construction site of the Coastal GasLink LNG pipeline, which would transport natural gas to the coast of British Columbia. Some members of the the Wet’suwet’en First Nation are concerned that it could damage the watershed and threaten wildlife.

Indigenous opposition to the pipeline is an issue of huge public importance that has been covered by Canadian news outlets for years, including the CBC. But at Gidimt'en camp—one of the checkpoints restricting access without the consent of the hereditary leaders—Royal Canadian Mounted Police turned away numerous members of the press on Jan. 7. This included APTN News and a CBC TV crew from Vancouver.

APTN News reported
that its reporters were informed by an officer that they were barred due to safety concerns, and if reporters tried to pass the checkpoint, they could be arrested and charged with obstruction.

Around the time that RCMP arrived at the checkpoint, several news outlets reported that the communication halted with journalists present at the camp. This reportedly included Jesse Winter and Perrin Grauer at The Star Vancouver, and the Twitter feeds of CBC reporter Chantelle Bellrichard and The Moose’s Sawyer Bogdan.

The Star deputy bureau chief Joanna Chiu tweeted that she had been informed that communications to the area had “been cut” due to a satellite issue. RCMP quickly denied that police had played any part in this lack of communications.

“It sounds like the RCMP is once again using every tactic that they can to bend the law as much as possible to prevent journalists from gaining access to sites,” said Tom Henheffer, vice president of Canadian Journalists for Free Expression (CJFE).

“This is a tactic that is very commonly employed and is very difficult to fight against in the moment because [police] know that when you’ve got a bunch of officers with guns telling people what they can and cannot do, it doesn’t necessarily matter whether the law is on the RCMP’s side or not – because it takes too long for a journalist to get a lawyer, go to court to get an order to allow them to get on to the site,” Henheffer said.

That same day on Jan. 7, RCMP arrested 14 people for allegedly violating a court injunction granting the pipeline company access. The Royal Police also created a "temporary exclusion zone,” which made the area off limits to all but members of the enforcement team.

Pipeline protests can be dangerous for both protesters—who face risks of arrest and physical violence for their political expression—and the press, who are attacked and arrested in large numbers for doing their jobs highlighting it.

Particularly when arrests are being made, media coverage serves a critical function that can help ensure law enforcement does not use excessive force, and if they do, journalists will be there to document it.

Media coverage has been critical in illuminating law enforcement treatment of pipeline resistance protesters across the United States. At Standing Rock in North Dakota, pipeline security forces—both public and private—attacked protesters with dogs, rubber bullets, tear gas, mace, compression grenades, and beanbag grounds.

Reporters and livestreamers at Standing Rock quickly documented these tactics, which quickly gained mainstream media attention and faced intense public backlash. The United Nations' special rapporteur on the rights of freedom of association and peaceful assembly called out the violence against protesters opposing the pipeline, and denounced the arrest conditions as “inhuman and degrading.”

Solidarity rallies are being organized
across Canada and the United States in support of the Wet’suwet’en nation members opposing the LNG pipeline.

"Authorities in Canada should immediately end the arbitrary restrictions on journalists covering the police breakup of the pipeline protest," said CPJ North America Program Coordinator Alexandra Ellerbeck. "Journalists should be able to freely cover events of national importance, without fear of arrest."

The U.S. Press Freedom Tracker in 2018: Year two of documenting attacks on the press in the Trump era

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Footage from a Denver police officer's body camera shows officers handcuffing Colorado Independent editor Susan Greene.

In June, a man entered the newsroom of the Capital Gazette in Annapolis, Maryland, and shot and killed four journalists and a media worker. Their names were Rob Hiaasen, Gerald Fischman, John McNamara, Wendi Winters, and Rebecca Smith. It emerged later that the shooter had been harassing and threatening the Gazette for years.

Earlier this year, a independent music journalist Zachary Stoner was also shot and killed, bringing the total number of members of the press killed in 2018 in the United States to five. (The US Press Freedom Tracker has not established the motive in the murder of Stoner, but there are some indications that it could be related to his work.)

Before 2018, the last time a journalist was killed in direct reprisal for their work in the United States was in 2007, with the murder of Oakland-based reporter Chauncey Bailey. In 2017, when the US Press Freedom Tracker—a reporting website and database attempting to systematically document press freedom violations in the United States—launched, we did not anticipate the need to track the number of murdered journalists, or to add a “killed” tag to the Tracker’s incident database.

The journalistic landscape in the United States is volatile, and 2018 has been a harrowing year for press freedom. The Tracker has documented more than 100 press freedom incidents since January, from murders and physical attacks to stops at the border and legal orders.

2018 saw an aggressive uptick in the number of leak investigations by the Trump administration compared to 2017. Five government employees or contractors have been charged with allegedly sharing information with the press—Reality Winner, Terry Albury, Joshua Schulte, James Wolfe, and Natalie Mayflower Sours Edwards—and there could be others that have not been publicly reported.

Fewer journalists were arrested in 2018 than 2017, which was marked with high levels of protests, at which numerous members of the press were arrested. Though the number is still disturbing: at least 11 journalists were arrested while doing their jobs this year. In 2018, journalists were also arrested at protests, but others were arrested while documenting police interactions and courtroom proceedings.


Leak cases

Cases counted in 2017: 1
Cases in 2018: 4

Since 2008, the United States government has aggressively prosecuted journalistic sources. In eight years, the Obama Justice Department brought charges against at least eight people accused of leaking to journalists—Thomas Drake, Shamai Leibowitz, Stephen Kim, Chelsea Manning, Donald Sachtleben, Jeffrey Sterling, John Kiriakou, and Edward Snowden.

At the end of 2017, the Trump Justice Department prosecuted one government contractor in connection with a leak case—Reality Winner. But by the end of 2018, the Tracker has documented another four cases—a significant uptick bringing the total number of prosecutions under Trump up to five.  

Terry Albury became the first person to be charged under the Espionage Act in 2018. In April, he pled guilty to disclosing confidential government information, and was sentenced in October to four years in prison. While the news organization in question was not named in the charges against Albury, reporting has identified it as The Intercept, and he is assumed to have shared information about targeted FBI surveillance of minorities and monitoring of journalists.

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Terry Albury

The most recent known leak case is that of Treasury official Natalie Mayflour Sours Edwards— who was arrested and charged in October, and stands accused of giving details about suspicious banking transactions to a reporter at BuzzFeed News. The Justice Department has indicated they are investigating dozens more.

Legal orders and subpoenas

Cases counted in 2017: 6
Cases in 2018: 21

The Tracker counts legal orders that are made by state and federal government agencies against journalists, such as subpoenas by prosecutors for journalists to produce their reporting materials or testify in court. This could also include legal orders by private entities on the behalf of public officials—such as an October subpoena by a private attorney for a Chicago police officer for Jamie Kalven, an independent journalist to testify in a trial.

Kalven fought the subpoena—arguing that reporter’s privilege protects him from testifying about his reporting—and won. It wasn’t the first time—Kalven was also subpoenaed to testify and reveal his confidential sources at the end of 2017 in a different case.

The Department of Homeland Security also subpoenaed the editor of an immigration law journal in an attempt to identify the source of a leaked ICE memo, which the editor of the journal had published.

The Tracker has documented a total of 27 subpoena or legal order cases—with 21 of those occurring in 2018. It’s likely that many subpoenas are not reported, and many legal orders for journalists’ records are conducted with high levels of secrecy. Therefore, the number of legal order and subpoena cases counted by the Tracker are likely to be a severe undercount, making a straight comparison of the data between years sometimes difficult.

2018 also saw the first publicly known seizure by the Trump administration of a journalist’s communications records, when the Department of Justice seized years of New York Times reporter Ali Watkins’ phone and email records as part of an investigation into her confidential sources. She was notified of this seizure after the fact, so she had no way to challenge the seizure in court.

Physical attacks
Cases in 2017: 53
Cases in 2018: 35

Across the country, journalists were attacked and interfered with by police and protesters in the course of their reporting. A freelance journalist was ‘decked in the face’ by a police officer in August, and a police officer body-slammed and shoved other reporters covering the same rally. On other occasions, journalists were pushed to the ground and shot with “less-lethal” rounds by police.

And reporters were also attacked by far-right protesters covering rallies in 2018—such as Portland Mercury reporter Kelly Kenoyer, who was shoved in July by a right wing demonstrator, and independent journalist Jon Ziegler, who was struck by white nationalists with a shield while reporting in January.

It’s a physical attack when a journalist faces violence, injury, equipment damage, or aggressive interference as the result of a targeted act by a public or private individual. We’ve documented 35 such incidents this year.

When explosive devices were sent to CNN headquarters in New York City in October, this also comprised a physical attack. The entire bureau was quickly evacuated and the NYPD bomb squad was dispatched, and CNN employees were permitted to return once the building was cleared.

Another suspicious package addressed to CNN was found later at a post office in Georgia, near CNN’s global headquarters.

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When a pipe bomb forced the evacuation of CNN's New York bureau, anchors Poppy Harlow and Jim Sciutto used cell phones to report on the situation from a street corner outside CNN's offices.

Arrests
Cases in 2017: 33
Cases in 2018: 11

Journalists were arrested doing their jobs twelve times in 2018, compared to 34 in 2017. While the 2018 numbers are lower than the year before, the circumstances around the bulk of arrests are strikingly similar.

In both years, journalists were arrested at protests—specifically, fascist and anti-fascist demonstrations, and in several cases, protests in opposition to pipeline constructions. In 2017, there were two events in which large journalists were arrested—protests on Trump’s Inauguration Day in January, and protests against the Dakota Access Pipeline. There were comparatively fewer arrests in 2018.

Photojournalist Michael Nigro
was arrested while documenting an act of civil disobedience in Missouri, and Karen Savage, a freelance reporter, who was arrested multiple times in the course of covering a pipeline resistance protest in Louisiana’s Atchafalaya River Basin.

In one case, Savage said that after arresting her, sheriff’s deputies put her in the back of a police car and drove around through sugar cane fields for around an hour. “It was a very clear intimidation tactic to stop me from covering the story,” Savage said.

“I will go back,” she added. “I’m not going to let them intimidate me. It’s our job to hold these officials accountable.”

While covering a protest in Tennessee, Manuel Duran was also arrested this April. All charges against him were quickly dropped, but he was transferred to the custody of Immigration and Customs Enforcement (ICE), and has remained in ICE detention since the spring. “I was doing my work and nothing more, like any other journalist does,” he said.

And at least two journalists were arrested while taking photographs of police. Susan Greene, after photographing a police interaction in Denver, and Edgar Mendez, for “trespassing” onto police property to take pictures of squad cars for a story.

“I wondered afterwards if what happened to me was because of my brown skin, or because I was a reporter writing about the MPD,” Mendez wrote in a first-person account of the incident for the Neighborhood News Service. “You have to remember that my arrest occurred at a time when President Trump had attacked people of Hispanic descent, repeatedly declared that all the news he didn’t agree with was “fake news,” and begun to call the press the “enemy of the people,” a sentiment he continues to espouse.”


We have attempted to systematically count press freedom violations in the United States since January 2017, the month that Trump entered into office. Much of the rhetoric about the press freedom climate in the United States has focused on President Trump.


We have documented numerous threats and chilling statements by Trump, and other administration officials like ex-Attorney General Jeff Sessions, that pose serious threats to journalism in the United States.

The Trump administration has charged at least five alleged sources of journalists with crimes in less than two years in office—a pace that would shatter the Obama administration’s record on leak prosecutions. Trump has threatened his critics, seized a reporter’s communications in pursuit of her source, and blamed journalists for “creating violence.” His Department of Justice has secretly charged WikiLeaks founder Julian Assange, and if the charges in question relate to Assange’s publishing activities, the press freedom implications would be profoundly devastating. And in November, Trump revoked the press credentials of a reporter that persistently asked him a follow-up question.

But journalists faced diverse threats in the United States while reporting the news in 2018, and many of them have nothing to do with Trump. The journalistic landscape has continued to shift since we began counting incidents at the US Press Freedom Tracker, and we will continue to document threats to free expression as they evolve in coming years.

Note: The categories and cases above do not represent all of the types of incidents that the US Press Freedom Tracker documents; the Tracker catalogs incidents in more than a dozen categories, and the full database is available here. The Tracker also maintains an API endpoint and a link to easily download our data.

Good riddance to Attorney General Jeff Sessions, enemy of press freedom

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Attorney General Jeff Sessions resigned yesterday, apparently at the request of President Donald Trump. During his two years in office, Sessions has used the power of the Justice Department to lead a crackdown on civil liberties and press freedom. As the ACLU remarked, Sessions “was the worst attorney general in modern American history."

Here’s a look back at some of the damage Sessions has done to journalists and whistleblowers:

Tripling number of investigations
The Justice Department has tripled the number of leak investigations since the Obama administration, which had already brought a record number of prosecutions. Sessions said last year that there were 27 open leak investigations, compared to a total of nine in the previous history of the United States. There are now almost certainly more.

Prosecutions of sources and whistleblowers
In less than two years, Sessions' Justice Department has brought charges against at least five alleged sources of journalists and investigated potentially dozens more. The Trump administration is on pace to shatter the Obama administration’s record for prosecuting sources.

Two have already been sentenced to years in prison—Reality Winner, convicted of leaking information related to the security of election infrastructure, and Terry Albury, for sharing information about the FBI’s racially-charged investigative tactics and monitoring of journalists. Whistleblowers like Winner and Albury should be applauded for their acts of courage—instead, they’ll spend years in prison.

Seizure of a reporter’s phone and email records
The Sessions Justice Department escalated its crackdown on leaks when it seized an entire year’s worth of the phone and email records of a New York Times reporter. She was not notified that her records had been seized until after the fact, so she had no opportunity to challenge it in court. This is the first publicly known instance of the Trump administration directly surveilling a reporter to attempt to root out their source, and given the number of leak investigations by Sessions, it’s quite possible there are others.

Demonizing encryption
In the digital age, the confidentiality of communications between journalists and sources requires strong encryption. Sessions said that breaking encryption is “critical”, noting how the FBI is unable to access thousands of devices tied to ongoing investigations due to encryption. “Ultimately, we may need Congress to take action on this issue," he said.

Potential prosecution of WikiLeaks and other journalists
Sessions has indicated that the United States wants to bring criminal charges against WikiLeaks for publishing secret information, which would have devastating implications for the countless journalists and news outlets that publish and report on classified documents. When asked to commit to not jailing reporters for doing their jobs if the Justice Department successfully gets its desired precedent against WikiLeaks, Sessions refused, saying that he could not “make a blanket commitment to that effect.”

Making subpoenaing journalists easier
Without evidence, Sessions suggested news organizations had endangered people’s lives by publishing stories based on leaked information, and considered making it easier for reporters to be subpoenaed. He said last August that the Justice Department was “reviewing our policies affecting media subpoenas.”

Jeff Sessions caused serious damage to freedoms of press and expression in the United States, and he has played a central role in the Trump administration’s crackdown on whistleblowers. The American people deserve an Attorney General who will defend press freedom and civil liberties—in other words, the opposite of Jeff Sessions.

How new state legislation is making reporting on pipeline protests a felony

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Freelance journalist Karen Savage is arrested by sheriff's deputies while covering anti-pipeline protests in Louisiana, on September 18, 2018.

When tens of thousands of activists streamed onto the Standing Rock indigenous reservation near the Missouri River in defense of indigenous land sovereignty and water rights, journalists were there to document it. At least nine reporters or filmmakers were injured or arrested by police or pipeline security guards while covering the protest, and over a year later, the stakes for journalists covering pipeline protests are even higher.

Karen Savage is a freelance reporter who has been covering the L’eau Est La Vie camp, an environmental protest group which is resisting the construction of an oil pipeline in the Atchafalaya Basin of southern Louisiana. Her work, which has been published in outlets like The Appeal, has exposed the cozy relationship between law enforcement and pipeline construction companies—even detailing that some police officers work second jobs as pipeline security guards.

In the course of her reporting, Savage has been arrested twice by officers with the St. Martin’s Sheriff's Department. In one instance, she was arrested for “unauthorized of entry of a critical infrastructure project.” Last year, this would have been a misdemeanor crime. But thanks to a newly minted law in Louisiana, it’s now a felony.

The state’s new law imposes felony charges on anyone who enter pipeline construction sites without permission. It’s similar to model legislation by American Legislative Exchange Council (ALEC), a right wing advocacy organization that authors pro-corporate legislation and finds sympathetic legislators to move it forward. ALEC’s members include oil and gas companies.

Louisiana’s version of the “ALEC critical infrastructure bill” went into effect on August 1, 2018—just weeks before Savage’s arrest. Pamela Spees, a senior attorney at the Center for Constitutional Rights who represented groups opposed to the Bayou Bridge project, called Louisiana’s bill “ALEC-plus”, noting that it went beyond ALEC’s model legislation.

Louisiana is far from the only state to adopt laws escalating the criminalization of alleged crimes at supposed “critical infrastructure” sites: similar bills have been introduced in Iowa, Virginia, New York, Colorado, Ohio, Oklahoma, Wyoming, Minnesota, Colorado, Washington, and Pennsylvania.

Not all of these bills have become law, but Rick Blum—Policy Director at Reporters Committee for Freedom of the Press—is concerned about the implications of these efforts for press freedom.

“Reporters have been shut out from covering protests, such as in Ferguson,” he said. “They tried to close off the airspace from news helicopters—not because of safety concerns—but because they wanted to keep reporters from covering the police response to protests.”

Blum thinks it’s a huge problem when reporters are not granted reasonable access to cover newsworthy events, including on private property. “Whether pipeline constructions or natural gas processing near schools, we should not make it hard for journalists to cover newsworthy events at critical infrastructure sites,” he said.

Karen Savage is one of very few reporters covering the water protectors’ protests in southern Louisiana, and she thinks a lack of media coverage and public attention allows law enforcement and pipeline construction companies to operate without accountability.

The second time she was arrested, she said she was driven around by the police through sugar cane fields for an hour, when the drive to the police station should have taken just 20 minutes. While sheriff’s deputies told her there was a warrant out for her arrest, it’s unclear whether that was the case.

Reporter Karen Savage and the L’eau Est La Vie resistance camp did have permission to be on the land. Savage explains that because the land has been passed on from generation to generation so many times, there are around 700 total property owners, and the company constructing the pipeline must obtain permission from all of them to do so. Some of the owners are actively resisting the pipeline construction, and have written letters granting the camp permission to remain.

But even when protesters and journalists like Karen Savage have permission to be on the contested land, law enforcement are arresting them for what would be felony charges. Although the District Attorney's office hasn’t officially brought charges in Savage’s case, Savage’s attorney said that it can take up to a year for charges to be filed in felony cases when the individual is out on bail. And protesters or journalists do not have to be convicted for the arrests and charges to have a chilling effect.

“It was a very clear intimidation tactic to stop me from covering this story,” Savage said about her arrests.

From Standing Rock in North Dakota to the Atchafalaya Basin, people are rising up in defense of indigenous land and water rights. Press coverage of these protests has exposed the close relationships between oil and gas companies and police, and unconscionable treatment of protesters by law enforcement. The ability of the press to cover pipeline protests is critical, and legislation that escalates penalties for people who “trespass” on critical infrastructure projects is dangerous for political protest and press freedom.

Important new report sheds light on the US government’s border stops of journalists

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Reuters/Patrick T. Fallon

Sometimes, journalists’ stories take them across borders. But when journalists are targeted for interrogation about their work or are pressured into to handing over their devices, they must go to extra lengths to protect their sources and reporting. A new report by the Committee to Protect Journalists (CPJ) sheds light on officials’ unacceptable targeting of reporters at the border.

CPJ identified 37 journalists who found secondary screenings by Customs and Border Patrol (CBP) to be invasive. Out of that group, 30 said they were questioned about their reporting, and 20 of them said their electronic devices were searched by border officers without a warrant. Between 2006 and June 2018, the 37 journalists were collectively stopped for screenings more than 110 times.

In several instances, United States border agents have demanded passwords to unlock journalists’ devices, which often contain sensitive information about stories and sources, as condition for entry into the United States. Some journalists, like photojournalist David Devgen, have opted to surrender their passwords rather than have their devices confiscated. Journalist Ali Lafti unlocked his phone for CBP, believing he did not have a choice, and cultural reporter Anne Elizabeth Moore complied when asked to leave her phone on and unlocked on the dashboard of her car by border agents.

Others, like Canadian journalist Ed Ou, refuse to provide the passwords to their devices, and are denied entry into the country altogether. That journalists are forced to choose between their privacy and protecting the integrity of their reporting and their ability to report out a story is outrageous, and not a real choice at all.

In many of the cases included in CPJ’s report, journalists did not feel that they fully understood their rights, and whether they could refuse to surrender their devices or passwords. Ed Ou said that he was not prepared for what happened in the United States, which he had thought protected press freedom and freedom of expression.

CBP has broad authority to conduct searches at the border, including without a warrant.

“Courts have so far upheld the so-called “border exception” to the Fourth Amendment’s requirement that authorities obtain a warrant to search people and their belongings,” CPJ’s report reads. “But legal challenges are being mounted over whether physical objects—such as laptops and phones—and the digital information contained on these devices should be treated the same way.”

Senators have proposed two bills that would move to reign in CBP’s sweeping powers relating to device searches of U.S. citizens and permanent residents. The Protecting Data at the Border Act would require CBP to obtain a warrant for searches of Americans’ devices, and the Leahy-Daines Bill would prohibit border officers from conducting searches without first meeting a standard of reasonable suspicion.

Legislation that would protect the rights of American journalists at the border is critical, and these bills should be adopted (preferably the stronger Protecting Data at the Border Act). But oftentimes, it’s non-American journalists that are the most vulnerable at the border, who may have less legal support, and are perhaps less likely to know their rights in the United States. No journalist, American or not, should face threats to their reporting at the border, and the civil liberties and privacy of journalists who are not citizens or permanent residents are no less important.

The 37 cases explored by CPJ is a small set of the millions of people and likely thousands of journalists who leave and enter the United States every year. So while it’s impossible to make any sort of conclusion about trends, in general, border stops have increased under the Trump administration.

U.S. Customs and Border Patrol reported in April
last year that searches increased from 8,500 in fiscal year 2015 to about 19,000 in fiscal year 2016, with another 15,000 conducted in just the first half of 2017. CPJ’s report has shed light on CBP’s dangerous treatment of journalists going about doing their jobs in the context of CBP’s increasingly disturbing privacy violations.

Secondary screenings that target journalists traveling for work are deeply concerning and threaten to undermine press freedom. As federal agencies ramp up warrantless searches of devices at the border, the protection of journalists’ digital lives and the work of civil liberties groups has never been more important.

One year on, the push for change since the murder of Malta’s most famous investigative journalist

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Daphne Caruana Galizia

WikiMedia Commons

On the 16th day of every month since the murder of Malta’s most famous investigative journalist, a crowd gathers at the top of a hill in the center of the capital city, Valletta.

At the base of the Great Siege monument, three bronze figures representing faith, fortitude, and civilization, a handwritten sign reads: “BE HERE TODAY AT 7:30PM: VIGIL FOR DAPHNE.” In mid-May, on the seventh month since journalist Daphne Caruana Galizia was murdered, I sit at a nearby cafe and watch tourists stop to view the memorial, and read the posters detailing what happened. Like silent actors, their expressions almost identically transition from curiosity to shock to outrage.

“Here? A journalist, killed for her work, here, in Malta? Is this not the European Union?”

People gather at dusk: first, a trickle, then a swell. Some carry candles and flowers that they lay at the base of the statue, while others hold signs with written messages like  “end impunity” and “ġustizzja,” the Maltese word for “justice.”

The vigils, organized by civil society groups, are relatively unobtrusive. But the response both by the Maltese public and government officials is indicative of the state of political dissent in Malta. 

Early this year, someone destroyed the memorial with a broomstick. It was reconstructed soon after, but since then, it has been damaged and removed constantly by both government officials and private citizens.

Caruana Galizia was 53 years old when she was murdered on October 16, 2017. She was driving near her home in Bidnija at around 3pm when her car exploded. Her son heard the blast from the family home, and found her remains. Although ten men were arrested and three charged with her assassination, who ordered her killing and why remains unclear.

The death of Daphne Caruana Galizia has divided Malta and shaken governmental and journalistic institutions to their core. The year since has functioned as a national reckoning, a questioning, and a movement.



The way I heard her describe it is the way a painter is compelled to paint—you do it because, what else do you do?

Daphne Caruana Galizia was called many things, from a “one woman WikiLeaks” to “witch.” Throughout my time in Malta, I needed only to refer to her by her first name for people to know exactly who I meant.

But she was also the eldest of three sisters, a daughter, and a mother to three boys—Matthew, Andrew, and Paul. She was born in Sliema, and was politicised young—she was arrested as a teenager while attending protests.

“Even as a child, she very much had her own mind,” said Cora Vella, Caruana Galizia’s younger sister. “She was naturally curious, and she read a lot, which opened her mind even further. She always liked writing. But it wasn’t something people did then.”

It wasn’t until after the birth of her sons that Caruana Galizia started writing regularly.

“It started out with her hammering out a column, and she’d send it to the Times of Malta,” said Vella. “She’d think ‘well, okay, at least I had fun writing it.’ But she kept doing it.”

Opinion writing was relatively new then in Malta. Cora Vella described the journalistic landscape then as ‘dry as dust.’ “All the reporters were men, and articles weren’t signed. With few exceptions, there were no proper opinion columnists.”

Malta has no journalism school, and Caruana Galizia received no formal training. She simply began to write, and as she did, she refined her skill.

She worked as a news reporter for the Sunday Times of Malta, and wrote columns for both the Times and The Malta Independent. In 2008, she launched a own blog—Running Commentary—a one-woman operation that regularly racked up 400,000 views a day, outpacing the combined circulation of the country’s newspapers.

“The blog gave her freedom,” Vella said.

Perhaps the last time Malta made front page headlines across the world was the Panama Papers—documents leaked in 2015 that detailed transnational tax evasion and corporate abuse dating back to the 1970s. It was Caruana Galizia that led the Panama Papers investigation in Malta, which implicated officials including the Minister of Energy and Health.

Caruana Galizia was almost uniquely adversarial in her approach to reporting on power in Malta. Her reporting was uncompromising and she wrote fiercely—with enormous consequences for her personal life.

Instinctively, you know something might happen,” said Vella about her sister’s death. “It’s like someone with a terminal illness. You still don’t expect them to die, it’s still a shock.


In 1995, Vella said, the family’s pet dog had its throat slit. Another dog was poisoned, and a third was shot. The family home was set on fire multiple times.

The first time, when Caruana Galizia’s sons were young, Vella said the family heard a cracking sound by the front door. A plant had been set on fire, and the family quickly extinguished it.

“Setting a front door on fire is a warning, but it's not necessarily an attempt to kill. The first time was a threat. The second was a murder attempt.”

Vella said Paul, one of Caruana Galizia’s sons, returned late one night in 2006 and saw flames through a window into the house.

“It was premeditated, and it was opportunistic,” Vella said. “It involved dragging tires across a series of fields, to the back of the house, and up a hill. It’s quite a big job for one person. They stacked the tires against the back of house, big glass doors, poured fuel over them and set it a light. The idea was that it would explode into the house and then you can't get out, and the only reason they managed to get out was that Paul was out of the house.”

The threats took different forms, from killed pets and fires to messages cut out of magazines and mailed to her home. Caruana Galizia took precautions, and there were times when she filed police reports. But the threats did not stop her.

“Instinctively, you know something might happen,” said Vella about her sister’s death. “It’s like someone with a terminal illness. You still don’t expect them to die, it’s still a shock.”

At the time of her death, there were 47 civil and criminal pending libel lawsuits against Caruana Galizia—including some brought by prominent government officials. Even the Maltese Prime Minister Joseph Muscat had brought a suit against the journalist, over her report that alleged that Muscat’s wife was a beneficial owner of an offshore company. (Caruana Galizia’s family members inherited responsibility for some of these suits after her death, including Muscat’s.)

Vella isn’t sure where her sister’s fighting spirit came from, and isn’t sure Caruana Galizia would even know herself.

“There’s the cliche of the starving artist—why do they do it?” she said. “Why don’t they just go to work where they can get paid? It’s because it matters so much to you, more than anything else. You can’t keep a pianist away from a piano. The way I heard her describe it is the way a painter is compelled to paint—you do it because, what else do you do?”

A few months after Caruana Galizia’s death, another journalist was murdered in the European Union. Ján Kuciak, a 27-year-old Slovak investigative journalist, was shot twice in the chest and killed along with his fiancee, in Bratislava, Slovakia.

The response was immediate.

Just days after Kuciak’s murder, Slovakia’s Minister of Culture announced his resignation on the grounds that he could not cope with the fact that a journalist was killed during his tenure. And in the wake of his death, protests were held in almost 50 cities across the country. The protests were endorsed by teachers, artists, and non-governmental organizations, universities cancelled their clases, and over 60,000 people marched in Bratislava alone.

Following the protests, Prime Minister Robert Fico resigned. Although the investigation into his death is ongoing, police have stated that Kociak was likely killed because of his work as a journalist, and that his death had been ordered.

Like Caruana Galizia, Kuciak reported on tax fraud, government abuse of power, and shady connections between officials and high profile businessmen. The murders of both journalists sparked were crimes that deeply divided their countries. But to Gulnoza Said, Europe and Central Asia Research Associate at the Committee to Protect Journalists, the stark differences in the responses to the deaths of Kuciak and Caruana Galizia illuminate the specific press freedom climate in Malta.

“Unlike Slovakia, there was no public solidarity in Malta when it comes to [Caruana Galizia’s] murder,” Said said. “There was no universal condemnation, including from the journalist community. Daphne irritated a lot of people. And some said that she deserved what she got, and you didn’t see that in Slovakia.

Shortly before the publication of this post in October 2018, a third European investigative journalist—Bulgarian television reporter Viktoria Marinova—was murdered. Days later, large crowds turned up to mourn her death and protest corruption.

Said thinks that there is a lack of awareness among the Maltese press and public about the implications of the murder of an investigative journalist, and that if there is no justice for Caruana Galizia, this could happen again.

The first anniversary of Caruana Galizia’s death is October 16, 2018. Vigils are planned to commemorate her in cities from Berlin to London—and, in Malta itself, in Valletta at the base of the Great Siege monument.


Why wouldn’t people in Malta care about the murder of investigative journalists?

Tina Urso, an activist who helped found civil society group Il-Kenniesa, explained that the Maltese public is comfortable with corruption in a unique way that it is difficult to articulate with people unfamiliar with the country.

“In other countries, maybe what corruption does is it takes away from the people and gives to the politicians, when in Malta it hasn't actually done that—it has given more money to the people. Like the sale of passports—the country has made so much money from that.”

Malta’s sale of citizenship is deeply controversial. The rocky island nation of 400,000 people is a fully-fledged EU member state, making it an attractive destination for wealthy foreigners in search of an EU passport. To obtain Maltese citizenship, a non-EU citizen just has to agree to reside on the island for at least one year, invest in local property, and pay 650,000 euros to the government.

Urso wrote later that she thinks the impacts of corruption are slowly being felt, and that in the long term, it could be a mechanism of pressuring for change. And many Maltese are concerned that the program is increasing housing costs and facilitating money laundering by Russian and Middle Eastern billionaires—issues that Caruana Galizia wrote about extensively before she was killed.

But for the large proportion of the Maltese public who sees government corruption as materially beneficial, criticism of the Maltese government is tantamount to an attack on Malta itself, and political organizing and investigative journalism are threats to a specific way of life. This line of thinking can lead people to justify or excuse attacks on activists like Urso and journalists like Caruana Galizia.

Urso and two other women organized their first protest in June of 2017, months before Caruana Galizia’s death.

People don’t understand that when we fight for justice for Daphne, it’s justice for what she exposed.

"I cant even explain to people how scared we were. We were just three girls holding a banner. I remember thinking, ‘I can’t believe we are so scared to protest in a democratic country.’”


The June protest was Il-Kenniesa’s first protest, but after Caruana Galizia’s murder in October, the group began to organize around the injustice of her silencing with impunity. “Kenniesa” means “sweepers” in Maltese, and the metaphorical broom in question aims to clear away corruption across the country and stand in defense of dissent, rather than organizing against any particular political party.

“I think about the women’s march in the United States, for example and the idea that protest, in recent years does not result in effective or immediate change, but that doesn't mean we stop protesting,” Urso said. She noted that when she speaks to people in Malta about protest, the response she generally gets is that there is no point, and that nothing will change.

Despite this, Urso said that she is driven by hope. “I want to empower people to protest. People don’t understand that when we fight for justice for Daphne, it’s justice for what she exposed. She didn’t just write about Labour.”

Malta has few robust civil society groups, and many are partisan. Il-Kenniesa, in contrast, calls out corruption from both the Labour and Nationalist parties.

“It makes us vulnerable,” Urso told me. “Because we get hate from everyone.”

Urso has been the target of extensive online harassment. She said that she has received emails with threatening messages advocating that she should be burned alive, and that rumors are constantly spread about her on social media platforms, like the lie that she dated one of Caruana Galizia’s sons. And early in 2018, Urso’s parents’ home address was posted on Facebook, and people even planned a protest outside of the house.

The rumors and threats targeting not just Urso, but also other transparency activists and Caruana Galizia’s family members, seem to originate from large Facebook groups. Their memberships total tens of thousands of people, including government officials. The phenomenon was detailed at length in an investigation by Caroline Muscat, a journalist and co-founder at The Shift News.

“Alongside the Prime Minister and Labour leader himself, a minimum of eight senior staff working for him are members of Facebook groups containing violent comments, including the distribution of anti-corruption activists’ personal details and calls for them to be physically attacked, sexually assaulted, and stalked,” Muscat’s reporting reads.

Urso explained the dynamic: “People will create these fake Facebook profiles and put up libellous information about me, and they’ll be shared by real accounts. As soon as it’s reported, Facebook will take it down a few hours later, but the information is already out there and it’ll be re-posted and shared so many times. I file police reports because I want it to be on record, but they asked me to send the URLs of the posts. I was like, ‘This was weeks in! Those posts aren’t still up!’ I had the screenshots.”

(Later, Urso said that some people have been charged in connection with the police reports she filed, but no court cases have begun.)

She takes extensive precautions now to protect her personal information online, but she worries that she is being made an example out of in order to intimidate others from speaking out.

“They see what happens to protesters like me and they think, ‘If that happens to me, I will lose my job.’ People are scared.”

Urso said that she is still inspired by the people she has seen raise their voices and call for change in recent months, and that Il-Kenniesa, will continue campaigning for justice for Caruana Galizia and her stories. She hopes for a change in Maltese culture around corruption. “Honoring her means a commitment to not stop asking the questions she was asking.”


Approaching the one year anniversary of Daphne’s death, what has changed?

Three men have been charged
with Caruana Galizia’s murder.

Gulnoza Said with Committee to Protect Journalists (CPJ) noted that there have been numerous attempts by authorities to influence the trial already, and that there are reasons to question the judiciary’s independence. Because of this, CPJ has hired local lawyers to monitor and document every aspect of the trial, and CPJ and other press freedom groups will be going to Malta to meet with government officials about the case.

But there are the men who allegedly triggered the bomb, and then there are the people that ordered it done—who are in all likelihood vastly more powerful, and, according to numerous people I talked to during my time in Malta, unlikely to be brought to justice.

“Daphne’s family has called on the government to set up a judicial public inquiry into whether her life could have been saved,” Cora Vella wrote. She thinks that this is obligatory under Article II of the European Convention on Human Rights, which guarantees a right to life. “A public inquiry is the only way to rule out state complicity or failure, and the only way to learn how to prevent future deaths.”

Some people, like Tina Urso, are skeptical that the investigation will ever uncover who ordered her killing. To her, it’s representative of the way corruption functions in Malta—like grasping in the dark, the evidence just disappears.

Caruana Galizia’s husband Peter said in April that political interests had compromised the integrity of the investigation, and that he feared the mastermind would never be found guilty.

But there are different kinds of justice. After Caruana Galizia’s death, a group of 45 journalists from 15 countries has picked up the journalist’s work, continuing and expanding the reporting she was doing before she was killed. The Daphne Project is coordinated by Forbidden Stories, a Paris-based organization that continues the work not only of journalists who have been killed, but also those that have been imprisoned or otherwise incapacitated.

“By protecting and continuing the work of reporters who can no longer investigate, we can send a powerful signal to enemies of the press: even if you succeed in stopping a single messenger, you will not stop the message,” Forbidden Stories’ website reads.

Since its launch, the Daphne Project’s published investigations have focused on subjects including Malta’s sale of citizenship, the Sicilian mafia, and the implications of Malta’s gas deal with Azerbaijan for the public.

And civil society groups like Il-Kenniesa continue to organize: calling attention to broad dynamics of corruption and dangerous partisan loyalty in Malta, pushing for answers around Caruana Galizia’s death, and holding vigils.
memorial

Caruana Galizia's memorial in May 2018

Tensions continue to flare around Caruana Galizia’s memorial in Valletta. In September, officials cleared the area on orders from the Justice Minister, who cited “health and safety” reasons. One journalist tweeted that she caught public employees removing a photograph of Caruana Galizia in the middle of the night before driving away in a government car.

The memorial has become a key battleground site and symbolic of larger tensions around freedom of expression in Malta.

"Is it now extremely evident that our freedom of expression is being blatantly suppressed," said activist group Occupy Justice to the Times of Malta. "This has basically become an issue of health and safety of our democracy."

Activists defend the memorial, even spending the night at the base of the Great Siege monument to guard it. And every time the memorial is cleared, whether by cleansing department employees, police, or angry members of the public, banners and candles seem to sprout back.

And as for Daphne, I have this maddening, maddening feeling that she knew what to do to avoid that end, but wouldn’t do it, because duty calls.



On an overcast day in mid-May, I meet blogger and activist Manuel Delia blocks from Caruana Galizia’s memorial.

Delia’s blog, like Caruana Galizia’s, takes aim at some of the most powerful figures in Malta, and features sharp commentary on local and European politics.

“I knew [Caruana Galizia] for the better part of 20 or 25 years,” Delia said. “The first time I remember meeting her, I was around 17, and she was an associate editor at the Independent.”

Delia had written a letter to the editor, and Caruana Galizia called him in for a chat. But Delia remembers reading her work long before that, ever since he was a preteen reading the news. “Her writing would just jump out at you. I was aware of her way before she was aware of me.”

While Delia worked in politics for over 15 years, including as a press secretary for the prime minister, he interacted with Caruana Galizia professionally. “She would give you hell, but demanded incredible respect,” he said, smiling. “I was always an admirer, and you know, she would whip the people I worked with. I always had a bit of a teenage crush.”

It wasn’t until the last four or five months of Caruana Galizia’s life that Delia got to know her in a deeper sense, when he started writing a blog in his free time. Caruana Galizia noticed his blog after he had written a 3,000 word analysis of a recent election, and she put up her own post that pointed to his—which brought a flood of readers to Delia’s new blog.

As he wrote a few posts a week, Delia said it was clear that she was reading them. They discussed politics and blogging, and after Caruana Galizia’s death, Delia quit his full-time job to focus on the blog.

The day before our meeting, Delia’s website was taken offline completely targeted with a denial of service attack.

“It was a massive attack,” Delia told me. “My website hosting managers said that in 18 years they’d never seen anything like it. It was meant to work. Someone knew what they were doing.”

Rising readership of his blog and denial of service attacks on his website have increased the technical and financial burdens of maintaining the site. But despite the inconveniences and what Delia sees as a chilling precedent of the targeting of citizen journalists and bloggers in Malta, he is also flattered by the attention.

“I suppose it says that I’m annoying people the same way Daphne used to,” he said.

As an amateur historian, Delia recognizes that it’s a common and easy mistake to color the past with the supreme benefit of hindsight. But yet, reflecting on some of the last things that Caruana Galizia wrote before her death, he thinks that she did understand the seriousness of the threats to her life, and the potential implications—although not to the point of accepting it.

“She would write things like, ‘I think by now they must have realized that unless they kill me, I won’t stop.’ These are not easy things to say: I don’t say them flippantly and neither did she. She was anything but flippant.”

It is, of course, impossible to know to what extent Caruana Galizia had resigned herself to the possibility of martyrdom for her work. And knowing there is a potential for something to happen is not the same as viscerally coming to terms with it. But it all feels a bit beside the point. None of it makes her murder less tragic or her journalism less powerful. If anything, the constant threats and violence that she faced make her death only more of an outrage.

Delia refers to a biblical passage in which God asks Jesus to drink a cup of poison containing God’s accumulated wrath and fury against all sin.

“Jesus understood what was going to happen, and that he could walk away from it. And yet, he won’t, because duty calls. And as for Daphne, I have this maddening, maddening feeling that she knew what to do to avoid that end, but wouldn’t do it, because duty calls.”

Delia sighs. “That’s a scary thing because in order to go on, you find ways of not allowing that to be in the front of your considerations. And I wonder if I’m doing that. I’m nowhere near doing what Daphne did. But if I could, I would.”

If Caruana Galizia could have known that her life would end the way it did, and foreseen the impact her journalism would have, both in terms of questions she asked and the national conversations that her writing sparked, perhaps she would have done nothing differently. But we must be careful to not fetishize sacrifice and legitimize living under constant threat of violence as a cost of brave journalism.

Daphne Caruana Galizia was unreasonably, impossibly, brave. Her life’s work challenged not only the narratives of the powerful, but also pushed the Maltese public to question and think differently. One year after her death, even as the search for answers continues, her work continues to drive the movement against corruption and for transparency forward in Malta.

Support FBI whistleblower Terry Albury, who is set to be sentenced next week

albury

Terry Albury

FBI whistleblower Terry Albury, the second person prosecuted by the Trump administration for leaking information to the press, will be be sentenced next week in federal court. The documents he is assumed to have shared detail the FBI’s recruitment tactics and how the agency monitors journalists. For his act of courage, he could face years in prison.

Albury pleaded guilty to two counts of violating the Espionage Act in March—each punishable by up to ten years in prison. Passed in 1917, the archaic law was originally intended for use against foreign spies, but since its inception, it has been weaponized against sources of journalists and whistleblowers. (Read more about the history of the Espionage Act here.)

Albury is no spy. His attorneys have described him as being driven to action by a “conscientious commitment to long-term national security and addressing the well-documented systemic biases within the FBI.” Albury has stated he witnessed discrimination both as by working as the only black field agent in the agency’s Minneapolis office, and by observing profiling of minority communities in Minnesota.

Although the complaint against Albury did not name a specific news organization, he is assumed to be the source behind The Intercept’s important “FBI Files” investigative series that  detailed controversial FBI tactics for investigating minorities and for monitoring journalists through National Security Letters (NSLs).

By using NSLs, the FBI can obtain journalists’ phone records with no court oversight whatsoever and can circumvent the Justice Department’s normally strict guidelines for spying on journalists. The fact that we know this is (presumably) thanks to Albury.

The charges against Albury came as the Justice Department ramped up its leak investigations by 800% since the previous administration. Albury’s case is the latest in a travesty of leak prosecutions under the Espionage Act, a practice normalized by the Obama administration and expanded on by Trump.

Albury will be sentenced on October 18 in St. Paul, Minnesota. His attorneys argue that guidelines suggest a sentence of approximately three years, but that given his moral character, role as a father of two young children, and the fact that he no longer works for the FBI, a sentence of probation would be most appropriate.

In the sentencing motion, Albury’s defense draw attention to his workplace environment, and how the racism he experienced within the FBI and the racial profiling witnessed the agency propagate in Minnesota sickened and isolated him.

“In 2016, Terry Albury, a highly-regarded and decorated FBI agent in the Minneapolis office (and who had previously served the FBI in Iraq), and the only black field agent in his region at that time, disclosed classified materials to a reporter relating to FBI surveillance, profiling, and informant-recruitment practices in national security cases,” the motion reads. “He did so as an act of conscience, of patriotism and in the public interest, and for no personal gain whatsoever.”

Trevor Timm, executive director of Freedom of the Press Foundation, noted in April that former FBI officials like James Comey and and Andrew McCabe have received extensive media coverage and public and financial support—and don’t face prosecution. But Albury, who apparently released information with huge implications for racial inequity and press freedom, has received very little such support.

Albury's lawyers have launched a GoFundMe page to help with his legal expenses, which you can contribute to here.

The justice system is deeply broken when a courageous whistleblower like Albury should face any prison time at all for speaking out about racial profiling and discrimination within his workplace and making details of monitoring of the press public.

New documents reveal details of the FBI’s dangerous practice of impersonating journalists

RCFP

FBI policy governing journalist impersonation, released by Reporters Committee for Freedom of the Press

Trust between journalists and their sources is paramount. When first approached by journalists, sources or subjects of stories can often be skeptical of a journalist’s motives—or even question whether they are really a journalist at all. Reporters often find themselves in life or death situations when when speaking with members of armed militias, accused terrorists, government rebels, or in myriad other cases.  

So every time a government agent impersonates a journalist to conduct its own investigation, they are putting countless other real journalists at physical risk.

Yet for years, the FBI has engaged in the impersonation of journalists and has defended its practice at the highest level—while keeping its exact policies that govern the tactic. Thanks to documents released as part of a Freedom of Information Act lawsuit by Reporters Committee for Freedom of the Press, we now know a little more.

Back in 2007, a man identifying himself as a reporter with the Associated Press approached a 15 year old high school student online and asked him to review an article about threats to his school for accuracy. But he wasn’t a real reporter, and it wasn’t real article.

Instead, the man was a FBI agent impersonating a journalist in an attempt to catch a suspect accused of making bomb threats. The faked article sent to the student included malware that revealed his computer’s location and IP address, allowing the FBI to confirm details about the suspect’s identity.

When this became public in 2015, backlash from the press and public was swift and intense. Press freedom advocates and the Associated Press itself raised serious concerns that this tactic could endanger journalists and undermine public trust in news gathering.

"This latest revelation of how the FBI misappropriated the trusted name of The Associated Press doubles our concern and outrage...about how the agency's unacceptable tactics undermine AP and the vital distinction between the government and the press," Kathleen Carroll, then-execute editor of the AP, said in a statement.

Despite the criticism, then-FBI director James Comey defended the agency impersonating journalists in the New York Times, and the FBI’s inspector general also signed off on the controversial practice.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

In response to these harrowing incidents, Reporters Committee for Freedom of the Press (RCFP) has been working to uncover the details of FBI’s tactic of impersonating journalists. It is engaged in multiple FOIA lawsuits about the practice—one that relates to the AP case from 2007, and one about impersonation of filmmakers, which led to this most recent disclosure.

This week, after fighting the government for years in court, they finally obtained the FBI’s internal policies for impersonating journalists.

The records show that in order to impersonate a journalist, a FBI field office is supposed to submit an application to do so with the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General.

“We’ve understood for a long time that the FBI engages in this practice, so I think it’s helpful for the public to understand the internal rules it utilizes when engaging in it,” said Jen Nelson, a staff attorney at RCFP.

While we know the FBI has impersonated members of the press on multiple occasions, it’s possible that other agencies have also done so as part of their operations. Freedom of the Press Foundation has filed FOIA requests with over a dozen other federal agencies seeking more information.

RCFP continues to work to uncover the details and frequency of the FBI’s use of the tactic, which poses huge chilling effects for journalism.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

“That’s our entire point,” said Nelson. “By impersonating members of the media, the FBI causes significant harm to the institution of journalism and undermines the practice.”

The FBI should immediately halt its use of the tactic, which poses real and significant dangers to journalists, who may have to deal with suspicion of being federal agents while going about their work. And the public also suffers when sources may be more reluctant to bring critical information to the press because they may not know who is a real journalist and who is fake.

If the agency refuses to do so, Congress has the ability to step in and ban the practice by law. Many lawmakers have defended press freedom in the fact of attacks on it by the president, and this would be a powerful way to protect countless journalists nationwide.

California transparency legislation could improve access to police records for journalists and the public

police
WikiMedia Commons

In November 2014, James De La Rosa was shot and killed by Bakersfield police officers. He was unarmed and 22 years old. Following his death, his family desperately wanted answers. But in California, police misconduct records are generally not available to the public—limiting what the De La Rosa family was able to learn about the officers who killed James.

“One of the officers who was involved in James’s shooting has reportedly also been involved in seven other shootings, while another officer has reportedly been involved in another killing,” James De La Rosa’s mother Leticia said in a statement to the ACLU. “Yet state law shields their records and families like mine rarely get answers to the questions we ask. All we get is secrecy.”

Like Leticia De La Rosa, Theresa Smith had a son killed by California police officers. Caesar Cruz was shot in a Walmart parking lot—allegedly multiple times—by Anaheim police officers before dying in a hospital a half hour later. An attorney for Cruz’ family called his death a “police execution.”

But all that Cruz’ family was allowed to know about her son’s death was that five officers were involved, and it took Smith over a year and a half to determine the name of the officer who killed Caesar Cruz.

While police misconduct information is public record in many states, that’s not the case in California. Even when an officer is repeatedly accused of or disciplined for abuse, these records are considered part of an officer’s personnel file.

In the 1970s, Gov. Jerry Brown signed into law a measure that blocked public access to misconduct documents, and forced defendants to petition a judge to examine these records in private and decide if the information warranted disclosure. In 2006, the California Supreme Court ruled that police misconduct investigations are confidential, a ruling that has kept answers from families of people hurt by police violence, obscured critical information about public officials from journalists, and shielded police from scrutiny.

Leticia De La Rosa and Theresa Smith are both advocates for a California bill that could make police investigation and disciplinary records available to the public in particularly egregious instances of misconduct.

“This bill would require, notwithstanding any other law, certain peace officer or custodial officer personnel records and records relating to specified incidents, complaints, and investigations involving peace officers and custodial officers to be made available for public inspection pursuant to the California Public Records Act,” reads California State Senate Bill 1421.

If SB 1421, sponsored by Sen. Nancy Skinner (D-Berkeley), becomes law, personnel records could be released to the public. Journalists would be able to more easily access information, like when officers shoot, kill, commit perjury, sexually assault, lie in an investigation, or seriously injure a citizen.

Some police labor unions have fought the bill fiercely. The California Sheriffs Association argued that the bill could jeopardize officer privacy and create a financial burden on local agencies. Los Angeles Times journalist Liam Dillon noted that the Los Angeles Police Protective League gave the maximum contribution allowable to a dozen Assembly Democrats as they considered the bill.

Despite opposition from police unions, Nikki Moore, legal counsel and legislative at California News Publishers Association, noted that the California Police Chiefs Association came on in support of the bill. “When they fire an officer and have evidence of misconduct, they can’t tell the public. They saw value in this transparency, and it’s a new perspective.”

SB 1421 has made it to the governor’s desk. It isn’t the only bill awaiting Jerry Brown’s signature that could improve access to police records. Assembly Bill 748 would require police departments to make body camera footage of most officer shootings and serious uses of force publicly available.

In a blog post, California Public Records Act attorney Anna von Herrmann wrote that the bill would open up critical access to records about egregious officer misconduct. “Given the enormous power that law enforcement agencies wield, from the power to arrest and detain individuals to the power to use lethal force, public access to this information could be a powerful tool to understanding and challenging law enforcement abuses.”

The impacts of both bills for transparency could be huge—for families like Cruz’ and De La Rosa’s, community organizers, and journalists reporting on police violence and abuse of power.

“Access to government records is a fundamental principle of democracy,” said Moore. “California, for so long, has denied access to these records, retaining complete discretion over disclosure. You have government agencies acting as editor.”

SB 1421 and AB 748 both await Governor Jerry Brown’s signature. He should sign them both.

Google should protect whistleblowers and increase transparency, not stifle it

Goog
Guillermo JM

The Intercept recently revealed that Google is working to develop a censored search application for the Chinese market, sparking intense criticism from human rights groups about the implications for human rights and freedom of speech in China. Concerned Google employees brought this secretive project into the light, and in doing so enabled Google employees, the public, and Chinese citizens to evaluate and mobilize in opposition.

These employees are whistleblowers—people who exposed information that’s of critical importance to the rest of Google and the public. And it isn’t the first time that Google employees have go to the press to expose a project that could have disastrous consequences for human rights.

When Gizmodo broke the news that Google was in collaboration with the Department of Defense in developing artificial intelligence technology for analyzing drone footage, Google employees quickly denounced the partnership. Thousands of employees mobilized and signed onto a letter demanding Google pull out of the project, and on June 1, Google announced that it would not renew its contract for Project Maven.

As with Maven, the backlash to Google’s complicity in expanding censorship and surveillance in China has been swift and intense. Over a dozen human rights organizations are demanding Google end its participation in Chinese repression of its citizens’ rights to freedom of expression and privacy and demanded that Google both protect the whistleblowers involved and be more transparent with the public.

“In relation both to Project Dragonfly and to Google’s involvement in the US government’s drone programme, Project Maven, whistle-blowers have been crucial in bringing ethical concerns over Google’s operations to public attention,” the letter said. “The protection of whistle-blowers who disclose information that is clearly in the public interest is grounded in the rights to freedom of expression and access to information.”

The rights organizations went on to say, “We are calling on Google to publicly commit to protect whistle-blowers in the company and to take immediate steps to address the concerns employees have raised about Project Dragonfly.” Freedom of the Press Foundation echoes these calls and stands with the whistleblowers and journalists who revealed these projects. 

Dragonfly also has huge implications for press freedom worldwide. “Since China is providing a template for other press freedom violations, its relationship with Google takes on a specific significance,” the Committee to Project Journalist’s Avi Asher-Schapiro wrote in an article about what the project could mean for journalism. “By integrating its services into China's press censorship apparatus, Xiao says Google risks dealing a major blow to digital press freedoms norms, which are already under siege globally.”

Google employees are also calling for the company to make significant internal changes.

“Our industry has entered a new era of ethical responsibility: the choices we make matter on a global scale,” Google employees wrote in an open letter demanding changes. “Yet most of us only learned about Project Dragonfly through news reports in early August.”

To many Google employees, that they learned about Project Dragonfly only due to leaks to the press indicates a need for leadership to establish clear transparency and oversight processes. Since the existence of the project is now public, it allows them—along with humans rights groups—to organize and advocate for more transparency and accountability. That’s thanks to whistleblowers.

Companies that claim to care about transparency—especially those like Google, which have the power to influence civil liberties for people across the world—should implement robust internal policies to protect whistleblowers. Whether they bring their ethical concerns to their supervisors or the press, tech workers should not have to fear retaliation for alerting people to an issue of profound public concern.

Google should immediately address the concerns that its employees have raised about the company’s complicity in a project that could expand China’s censorship and surveillance apparatus and deal serious blows to press freedom.

Prisons are censoring publications that challenge state power

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Jon S / Flickr

Many civil liberties violations and instances of state abuse that incarcerated people experience are rendered invisible from the rest of the country. Prisons are cracking down on incarcerated people’s rights to access information, learn, and read the news—a huge threat to the First and Fourth Amendments.

The concept of banned books and magazines—reading materials deemed too dangerous or subversive—may seem anachronistic and even Orwellian. But prisons across the United States have long attempted to restrict what prisoners can read, and some are currently attempting to limit inmates’ access to a particular magazine.

Prison Legal News is a monthly magazine published by the Human Rights Defense Center (HRDC). It primarily reports on criminal justice issues, and features both investigative pieces as well as educational resources for inmates to fight abuse or government misconduct in prisons. It’s also banned in prisons in the State of Florida.

This May, the Eleventh Circuit Court of Appeals upheld Florida’s 2009 decision to ban the publication in the state’s public prisons on the grounds that the magazine contains advertisements for services that aren’t allowed in the prisons, like the sale of postage stamps and pen pal services.

Judge Ed Carnes speculated that the ads may provide “temptation” for inmates to commit fraud and other criminal acts. It’s a legal framework that could, according to Sabarish Neelakanta, General Counsel & Litigation Director at HRDC, allow for a broad range of censorship of reading materials. Advertisements for kitchen knives or alcohol, for example, could justify banning a cooking magazine entirely.

“That was one of the arguments we raised in our briefing to the Eleventh Circuit,” Neelakanta said. “If there’s an article that talks about ‘escape to Bermuda,’ that’s illegal within a jail, and presumably could be encompassed under a technical reading. A whole slew of other publishing entities could be affected.”

Human Rights Defense Center is fighting back and challenging the decision, and is preparing to the petition the United States Supreme Court for review. But Florida isn’t the only legal battleground for HRDC, which has brought lawsuits against over 50 prisons in 40 states. And unlike in Florida, censorship is in many cases based on content.

HRDC is suing the Illinois Department of Corrections, alleging that the institution has implemented policies that deny inmates access to HRDC materials. In the complaint, HRDC details incidents of incarcerated subscribers to Prison Legal News not receiving complete copies of the magazine, and argued that this censorship violates both the First and Fourteenth Amendments.

“Defendants have adopted and implemented mail policies and practices prohibiting delivery of written speech from HRDC while failing to provide due process notice of and an opportunity to challenge that censorship,” the complaint reads.

As part of an interim experiment, Neelakanta said the parties have agreed to track the delivery of Prison Legal News to around 15 facilities in Illinois to determine whether issues were being delivered and censored. According to Neelakanta, although the experiment has only been in place for less than a month, they’ve continued to observe delivery problems .

Prison Legal News is also suing the Arizona Department of Corrections for banning specific issues of the magazine because of alleged “sexually explicit content” in its pages. The content in question includes an excerpt from a court opinion describing an incident of sexual assault against an inmate.

Paul Wright, founder and executive director of the Human Rights Defense Center and editor of Prison Legal News, thinks that the publication is targeted because it focuses on jail conditions, corruption, and brutality in prisons. “It makes them look bad,” he said. “It gives readers the tools to stop these things.”

While Prison Legal News could be the publication most frequently banned in the United States, it’s far from the only instance of censorship in prisons. Many of the reading materials that are banned in prisons are those that challenge the criminal justice system. Prisons in states including New Jersey and North Carolina had banned The New Jim Crow: Mass Incarceration in the Age of Colorblindness. And The New Jim Crow was also labeled a security threat in Florida—as was Douglas Blackmon’s Slavery By Another Name.

Incarcerated people do not lose their rights to stay informed when they are detained by the state, but correctional facilities using “security concerns” to deny inmates’ access to reading materials is not uncommon. Some have only allowed incarcerated people to receive postcards, claiming that magazines and letters allow inmates to more easily receive contraband. Others, Neelakanta said, have argued that staples used to bind magazines could be used for weapons or tattoo guns. Jails have other ways to manage those “security risks”, and Neelakanta thinks it’s problematic that they often resort to censorship of political content.

HRDC has won most of its First Amendment lawsuits—Neelakanta estimates over a 95% success rate. But that prisons are denying inmates access to reading materials—whether by labeling them a “security threat” or invoking archaic statutes—comprises a huge threat to press freedom, and publications’ right to reach their audiences.