Report to the 71th General Assembly
Charleston, South Carolina
October 2 – 6, 2015
During this period, on August 14, 2015, the Department of Justice released its first annual report under the new media subpoena guidelines, detailing the DOJ's use of legal process and other law enforcement tools against journalists and news organizations during 2014.
The report revealed the Attorney General authorized two subpoenas and one search warrant from the news media in 2014. The Attorney General also twice authorized the questioning of the news media. Further, the report disclosed United States attorneys authorized subpoenaing the news media seven times in 2014. The full report can be downloaded here: http://www.justice.gov/criminal/file/760981/download. The new regulations can be found here: https://www.law.cornell.edu/cfr/text/28/50.10. See also http://www.rcfp.org/attorney-generalguidelines.
New York Times reporter James Risen received one of the two subpoenas authorized by the Attorney General. Risen was subpoenaed to testify at a pretrial hearing in connection with the trial of former CIA officer Jeffrey Sterling. He answered limited questions from the government and Sterling's defense attorneys at the pretrial hearing, only confirming that he had confidentiality agreements with sources and spoke with Sterling for a 2002 article that quoted Sterling by name. The government did not call Risen to testify at the trial, a move that was widely applauded by U.S. press groups.
The Attorney General also authorized a subpoena to television news producer Richard Bonin of CBS News for documents connected to the trial of Khalid al Fawwaz for various offenses related to the 1998 bombings of the U.S. embassies in Kenya and Tanzania. Prosecutors sought Bonin to testify about his conversations with al Fawwaz while al Fawwaz was Osama bin Laden's media representative. The U.S. Attorney's Office did not ultimately issue the subpoena after Bonin declared he would contest it.
Reflecting the revised media subpoena guidelines, the Justice Department will update its new policies in the United States Attorneys' Manual before the end of 2015. Dialogue has also begun between new U.S. Attorney General Loretta Lynch and the news media. Members of the news media are scheduled to meet with Lynch in October.
In early June, the U.S. Attorney's Office for the Southern District of New York issued a subpoena to Reason magazine, demanding identifying information on six anonymous Reason.com users who commented on an article about the conviction of Silk Road founder Ross Ulbrich and the federal judge who sentenced Ulbrich to life in prison. The subpoena was attached to a letter asking Reason to voluntarily cease from disclosing the subpoena to third parties. In order to give the commenters the opportunity to contest the subpoena and defend their First Amendment right to comment, Reason informed the commenters about the subpoena. Soon after, Reason received a gag order from the U.S. Attorney's Office, ordering Reason not to disclose the existence of the subpoena or the gag order. However, because the subpoena was already released and made public, the court vacated the gag order on June 19. Reason has published an article about the case, which can be found here: https://reason.com/blog/2015/06/19/government-stifles-speech.
Even though authorization from the Attorney General is not required under the media subpoena guidelines when the government seeks information from the news media regarding online posts, free press advocates believe that prosecutors should be required to assess the consequences of using gag orders to cloak subpoenas in a veil of secrecy.
On August 26 reporter Alison Parker, 24, and cameraman Adam Ward, 27, of the local television channel WDBJ were killed at around 6:45 a.m. in the town of Moneta while they were interviewing a representative of the local Chamber of Commerce, who was injured in the attack. The two journalists died on the spot from their bullet wounds, after being struck by a former worker of the TV channel. The attacker died hours later after shooting himself moments before his arrest.
An outburst against the press by Republican U.S. presidential candidate Donald Trump after he expelled from an August 26 news conference Hispanic television newsman in the United States Jorge Ramos was protested by the IAPA. Ramos, the leading figure of the Univisión television network based in Miami, Florida, had sought to ask Trump about his immigration plan should he be elected president.
The Reporters Committee for Freedom of the Press, joined by a coalition of media organizations including the Inter American Press Association, wrote a letter to the Commission nationale de I'informatique et des libertés (CNIL), the French data protection agency, urging it to revoke its order requiring Google search delistings under the European Union's "right to be forgotten" to include domain names around the world. The letter to the French agency detailed a number of concerns with requiring delisting beyond the EU. Some of the contentions with the order described in the letter include the limitation on global users' access to information, the lack of notification to publishers of the delistings, and the inadequate protection of the fundamental right of free expression. The full text of the letter can be found here: https://www.rcfp.org/sites/default/files/RCFP_CNIL_Sept14-English.pdf.
On Sept. 21, CNIL indicated that it would proceed with further action against Google. CNIL President Isabelle Falque-Pierrotin said in a statement that delistings must be applied across all search engine extensions to guarantee that right to be forgotten requests are not circumvented. Google must now delist requested links across global domain names, including google.com, or face fines. Google responded to the rejected appeal in a statement, saying, "We respectfully disagree with the idea that one national data protection authority can assert global authority to control the content that people can access around the world."
The battle over the right to be forgotten promises to be a long one in Europe and may well spread to other parts of the world. Some groups are seeking similar protections in U.S. law through the Federal Trade Commission or new legislation, but there is little doubt that such laws would be incompatible with the First Amendment.
While covering the riots in Ferguson, Missouri in August 2014, police arrested journalists Ryan J. Reilly and Wesley Lowery when they attempted to gather news while being ordered out of a McDonald's where they were working. The journalists questioned and videotaped the officers as the police ordered the reporters to leave the public restaurant. Nearly a year later, St. Louis County prosecutors charged Reilly and Lowery for trespassing and interfering with a police officer's performance. The journalists are contesting these charges, and the Reporters Committee sent a letter of protest, joined by IAPA. See http://www.rcfp.org/reporterscommittee-led-coalition-calls-ferguson-officials-drop-charges-against-reporters.