Fwd: Transparency needed on FBI raid

Thu Oct 5 16:13:01 PDT 2023

---------- Forwarded message ----------
From: Freedom of the Press Foundation <newsletter at freedom.press>
Date: Thu,  5 Oct 2023 19:07:04 +0000
Subject: Transparency needed on FBI raid

Deferred prosecution agreements silence and extort journalists

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Dear friend of press freedom,

Here are some of the most important stories we’re following from the
U.S. and around the world. If you enjoy reading this newsletter,
please forward it to friends and family. If someone has forwarded you
this newsletter, please subscribe here
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Courtesy of Tim Burke. Over 50 organizations are demanding
transparency regarding the FBI's May raid of journalist Tim Burke's
home newsroom. The government's failure to explain how it believes
Burke broke the law threatens to chill reporting by journalists who
dig for news online.

** Press orgs demand answers about raid of journalist’s home
------------------------------------------------------------

An FBI raid on the home newsroom of Florida journalist Tim Burke in
May prompted Freedom of the Press Foundation (FPF) to lead more than
50 organizations in demanding transparency from the Department of
Justice (https://freedom.press/news/rights-orgs-broadcasters-demand-info-on-fbi-raid-of-journalists-home/)
about the government’s suggestion that Burke broke the law while
digging for news on the internet.

Burke is perhaps most well known for his 2013 reporting
(https://deadspin.com/manti-teos-dead-girlfriend-the-most-heartbreaking-an-5976517)
revealing the Manti Te'o catfishing hoax and a widely circulated 2018
video compilation
(https://deadspin.com/how-americas-largest-local-tv-owner-turned-its-news-anc-1824233490)
showing dozens of Sinclair Broadcasting Group anchors reciting the
same script.

The FBI raided (https://www.thedailybeast.com/raid-on-journalist-tim-burkes-home-related-to-tucker-carlson-videos-report?ref=author)
Burke’s home after he obtained outtakes of Tucker Carlson’s interview
with Ye (formerly known as Kanye West) where Ye made antisemitic and
other offensive remarks. According to court filings, the government is
investigating alleged violations of the Computer Fraud and Abuse Act
and a federal wiretapping law.

According to Burke
(https://www.cjr.org/the_media_today/qa-tim-burkes-lawyer-on-the-seizure-of-his-devices-and-what-it-means-for-journalism.php)
, he got the outtakes from unencrypted websites that anyone could
access using publicly accessible login credentials. As FPF’s Advocacy
Director Seth Stern explains
(https://freedom.press/news/rights-orgs-broadcasters-demand-info-on-fbi-raid-of-journalists-home/)
, “If that’s true, it’s highly problematic for press freedom.
Journalists cannot be expected to refrain from using the internet to
find newsworthy content just because powerful companies would prefer
to keep it private.”

In addition to the lack of transparency, FPF’s letter to the DOJ
(https://media.freedom.press/media/documents/Letter_to_DOJ_re_Raid_on_Tim_Burkes_Home_Newsroom.pdf)
takes issue with prosecutors’ arguments that Burke isn’t really a
journalist and demands answers about whether the government followed
its own procedures for searches
(https://freedom.press/news/new-guide-helps-journalists-know-their-rights-when-police-come-knocking/)
of journalists’ newsgathering materials.

The DOJ must provide more public information about the Burke case so
journalists don’t need to worry that their internet research may bring
the feds to their door.

Deferred prosecution agreements silence journalists

Arizona journalist Lucas Mullikin (https://lucasmullikin.com/) — who
was arrested (https://freedom.press/news/arrests-of-independent-journalists-should-make-headlines-too/)
in May for the “crime” of trying to record a violent trespassing
arrest by the Yuma, Arizona, police — recently accepted
(https://pressfreedomtracker.us/all-incidents/freelance-journalist-shoved-arrested-while-filming-police-in-arizona/)
a “deferred prosecution” agreement whereby charges against him will be
dismissed if he isn’t arrested again for a year. He also had to pay a
“fee” for the privilege of essentially being placed on probation for
exercising his constitutional rights.

As we explain on our blog
(https://freedom.press/news/deferred-prosecution-agreements-silence-and-extort-journalists/)
, prosecutors are increasingly
(https://pressfreedomtracker.us/all-incidents/photojournalist-arrested-at-candlelight-vigil-for-man-killed-on-nyc-subway/)
using deferred prosecution agreements in frivolous cases against
reporters, chilling journalism in the process. To avoid prosecution,
reporters must ensure they’re not arrested again by the same police
department that already demonstrated it will target them for doing
their jobs. How could any journalist not think twice about reporting
that might anger police under those circumstances?

Police departments that wrongly arrest journalists need to own up to
it, apologize, and discipline the officers involved — not attempt to
extract obedience and money from journalists they know did nothing
wrong.

Hidden press implications of Supreme Court social media cases

Two new cases before the Supreme Court about the First Amendment
rights of social media platforms to moderate content could have big
consequences for journalists and the news media.

In NetChoice v. Paxton
(https://www.supremecourt.gov/docket/docketfiles/html/public/22-555.html)
and Moody v. NetChoice
(https://www.supremecourt.gov/docket/docketfiles/html/public/22-277.html)
, the court will consider whether platforms have a First Amendment
right to engage in content moderation. But because the platforms are
relying on landmark free press decisions
(https://supreme.justia.com/cases/federal/us/418/241/) to make their
cases, the court’s decisions could also reshape fundamental First
Amendment protections for the press.

News media should monitor these cases especially closely when
presidential candidates, including Donald Trump, have made clear
(https://www.theguardian.com/us-news/2023/sep/25/trump-nbc-msnbc-comcast-country-threatening-treason)
their intentions to punish the press for coverage they claim is
unfair. Read our blog post
(https://freedom.press/news/the-hidden-press-implications-of-the-supreme-courts-social-media-cases/)
unpacking the potential impacts of these cases on the press to learn
more.

Judges should have to go to law school. And no, that's not as obvious
as it sounds.

The fallout from the illegal police raid of the Marion County Record
continued this week with the better-late-than-never suspension and
resignation (https://kansasreflector.com/2023/10/03/marion-police-chief-resigns-after-body-cam-footage-shows-him-rifling-through-records-about-himself/)
of the police chief who led the raid. The judge who approved the
warrant, Laura Viar, is also the subject of a judicial ethics
complaint (https://kansasreflector.com/2023/09/06/kansas-commission-seeks-magistrates-perspective-on-marion-search-warrant-complaint/)
over her decision to authorize the raid, while journalists investigate
her background (https://www.kansas.com/news/politics-government/article278237263.html)
and potential conflicts.

Viar happens to be a lawyer — but she didn’t have to be in order to
become a magistrate judge in Kansas, one of several states where
nonlawyer judges are empowered to, among other things, issue warrants
authorizing seizures of journalists’ materials. The Marion ordeal led
lawmakers in Kansas to introduce a bill
(https://www.kansascity.com/news/politics-government/article278502444.html)
to prevent magistrates from issuing warrants.

We write on our blog
(https://freedom.press/news/judges-should-have-to-go-to-law-school-thats-not-as-obvious-as-it-sounds/)
how requiring a law degree to serve on the bench is a good place to
start when it comes to protecting press freedom and other
constitutional rights. But we also need to have a larger conversation
around why many judges — lawyers or not — can’t seem to get press
freedom (https://www.nytimes.com/2023/08/20/opinion/kansas-press-freedom.html)
right these days.

** What we’re reading
------------------------------------------------------------

Return cameras to C-SPAN control and restore transparency
(https://freedom.press/news/return-cameras-to-c-span-control-and-restore-transparency/)
. Remember the last time we didn't have a speaker of the House?
C-SPAN’s cameras were able to show the entire chamber, not just the
person addressing the floor. Enjoy this #TBT to FPF’s blog post and
coalition letter (along with the Demand Progress Education Fund) about
why allowing C-SPAN to control the cameras during the negotiations
over the last speaker vacancy achieved an unusual and vastly improved
level of transparency. How about a repeat this time around? And then
let’s permanently free the House cameras from the control of
politicians.

Knight Institute and Reporters Committee File Amicus Brief in Case
Challenging Electronic Device Searches at the Border
(https://knightcolumbia.org/content/knight-institute-and-reporters-committee-file-amicus-brief-in-case-challenging-electronic-device-searches-at-the-border)
. Journalists often cross the U.S. border as part of their reporting,
and when they do, they’re likely to carry electronic devices
containing confidential information about sources and newsgathering.
But the government has repeatedly argued that it can conduct
warrantless searches of literally anyone’s devices at the border.
That’s wrong. Border guards rifling through devices of journalists and
others without a warrant violates the Fourth Amendment. Hopefully this
time the court will agree.
Five years after the Khashoggi murder: No justice, no closure
(https://www.washingtonpost.com/opinions/2023/09/27/khashoggi-murder-saudi-arabia/)
. "No one should accept the Saudi whitewash. MBS stole Jamal Khashoggi
from his family, friends and colleagues; escaped accountability for
his murder; and continues to torment Saudis who dissent," writes The
Washington Post editorial board.

** FPF Live: Police Search and Seizure in Marion
------------------------------------------------------------

On October 18, 2023, from 7-8 p.m. EDT, join FPF Deputy Advocacy
Director Caitlin Vogus for a virtual event, “Police Search and Seizure
in Marion: New — or Expanded — Front on Press Freedom
(https://www.facebook.com/photo/?fbid=710685661101221&set=a.554876033348852)
.” Caitlin will be part of a panel including Marion County Record
Editor and Publisher Eric Meyer and other experts to discuss changing
attitudes by officials and the public toward the free press, recent
attacks on journalism, and chilling effects on aggressive reporting.
Register here (https://us02web.zoom.us/meeting/register/tZYkfuCsqD4oE9amw6qkWG5GwPE9aMsvPJ_d#/registration)
.
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