U.S. Department of Justice Limits Seizure of - Digital ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2021
U.S. Department of Justice Limits Seizure of
Journalists’ Records and Information
O
n July 19, 2021, several media outlets reported of drone strikes for “targeted killings” overseas, among other
that U.S. Attorney General Merrick Garland revelations. (For more information on Hale’s leak and the
has formally prohibited the U.S. Department of prosecution against him, see Former Government Intelligence
Justice (DOJ) from seizing journalists’ phone and Analyst Charged with Leaking Classified Information to The
email records in connection with government Intercept in “Trump Administration Targets Two More Leakers
leak investigations. Observers praised the move as an of Government Information” in the Fall 2019 issue of the Silha
important step in protecting freedom of the press in the United Bulletin.)
States after revelations in the first half of 2021 that President In an amicus brief filed in July 2021 ahead of Hale’s sentenc-
Donald Trump’s administration secretly seized journalists’ ing hearing, 17 media law professors and scholars, including
records on at least three occasions. Silha Professor of Media Ethics and Law and Director of the
The Trump administration continued the trend started Silha Center Jane E. Kirtley and University of Minnesota Law
by President Barack Obama’s administration of prosecuting School Robins Kaplan Professor Heidi Kitrosser, argued that
individuals for leaking classified government information the prosecution of Hale and other government whistleblowers
under the Espionage Act, 18 U.S.C. § 793, including to under the Espionage Act “raises substantial First Amendment
members of the press. The first such case for the Trump concerns,” including that “the government will abuse its
administration came to an end on Aug. 23, 2018 when former censorial powers to target speech that it dislikes or that
National Security Agency (NSA) contractor Reality Winner threatens its interests or credibility. Prosecutions that target
was sentenced to 63 months in prison and three years of leaks to the [news] media directly raise these concerns.” They
probation, as well as 100 hours of community service upon also risk chilling speech and reporting about important topics
her release. Winner was released from federal prison on June and information of public interest.
2, 2021. (For more information on the cases against Winner Espionage Act prosecutions, according to the brief, also
and others, see “Investigations, Prosecutions, and Sentencing conflict with two First Amendment principles: “(1) speech
Continue in Government Leak Cases” in the Fall 2018 issue about the actions of our government receives the highest level
of the Silha Bulletin and “Trump Administration Targets of constitutional protection, and (2) heightened scrutiny is
Journalist, Leaker of Government Information, and Former necessary when the government seeks to shield particular
Government Employees Who Took Classified Documents” in information about itself from public view.” The brief therefore
the Summer 2018 issue.) called for a “just sentence” that would “necessarily take into
Additionally, on May 23, 2019, the DOJ released an account the First Amendment interests at stage when the
indictment alleging 18 charges against WikiLeaks founder Executive uses the [Espionage] Act in this unanticipated way
Julian Assange, 17 of which were under the Espionage Act, — weighing any harm caused by disclosure of the classified
prompting significant concern from journalists and press information at issue against the importance of the disclosure
advocates that the indictment was the next step in prosecuting to informed public disclosure and democratic accountability.”
traditional journalists under the statute. (For more informa- The full brief is available online at: https://drive.google.com/
tion on the charges against Assange, see “Federal Prosecutors file/d/1Y_yDOFXazv71XwlUJAX1X2QGQCO5qcI1/view.
Charge Julian Assange With Seventeen Counts Under the Additionally, on June 3, 2021, former U.S. Department of
Espionage Act, Prompting Renewed Concern for Journalists” the Treasury official Natalie Mayflower Sours Edwards was
in the Summer 2019 issue of the Silha Bulletin.) sentenced to six months in prison after she pled guilty to one
On July 27, 2021, several media outlets reported that former count of conspiracy to make unauthorized disclosures of
U.S. Air Force intelligence analyst Daniel Everette Hale was suspicious activity reports (SARs) in January 2021, as reported
sentenced to 45 months in prison for retention and transmis- by BuzzFeed News. (For more information on Edwards’
sion of national defense information under the Espionage Act. leak and the prosecution against her, see Senior Treasury
Previously, on March 31, 2021, Hale pleaded guilty after he Department Employee Charged with Leaking Confidential
leaked classified documents revealing the government’s use
DOJ Limits, continued on page 3Inside This Issue Summer 2021: Volume 26, No. 3
1 U.S. Department of Justice Limits Seizure of Journalists' 27 Special Report: European and U.S. Entities Interpret
Records and Information EU-U.S. Privacy Shield, GDPR, and Other Data Privacy Rules
Cover Story and Regulations
Special Report
6 Chauvin Trial Marks Key Moment in Minnesota Media
Access to Court Proceedings During Pandemic 38 First Circuit Rejects First and Fourth Amendment
Access Challenges to Border Searches and Seizures of Travelers'
Electronic Devices
8 Associated Press, ProPublica, and Well-Known Journalists
Searches and Seizures
Raise Ethical Questions and Considerations
Ethics 41 Federal Judge Allows Privacy Lawsuit Against Thomson
Reuters to Continue
11 Special Report: U.S. Supreme Court Rulings and Opinions
Data Privacy
Raise Numerous Freedom of Speech and Press, Privacy
Issues and Questions 44 36th Annual Silha Lecture: "The First Amendment &
Special Report Diversity: A Marketplace Failure?"
Silha Center Events
Silha Center Staff
Jane E. Kirtley
Silha Center Director and Silha Professor of Media Ethics and Law
Scott Memmel Jonathan Anderson
Postdoctoral Associate Silha Bulletin Co- Editor
Silha Bulletin Co-Editor
Samantha Brunn Claire Colby
Silha Research Assistant Silha Research Assistant
Elaine Hargrove
Silha Center Staff
2DOJ Limits, continued from page 1 (For more information on the secret subpoenas of the AP, see
“Justice Department Secretly Subpoenas Associated Press
Documents to BuzzFeed News in “Investigations, Prosecutions,
Phone Records” in the Winter/Spring 2013 issue of the Silha
and Sentencing Continue in Government Leak Cases” in the
Bulletin and “Department of Justice Revises Guidelines for
Fall 2018 issue of the Silha Bulletin.)
Investigating Journalists” in the Summer 2013 issue. For more
In some cases, leak investigations and prosecutions have
information on the targeting of Rosen, see “Attorney General
implicated members of the press. For example, in 2018, The
Holder Leaves Problematic Legacy on Press Rights and Civil
New York Times reported that during an FBI investigation
Liberty” in the Fall 2014 issue of the Silha Bulletin. For more
into alleged classified leaks by former U.S. Senate Select
on the Obama administration’s prosecution of individuals
Committee on Intelligence (SSCI) director of security James
under the Espionage Act, see “President Barack Obama Leaves
A. Wolfe, who was charged and arrested on three counts
Mixed Legacy on Government Transparency” in the Fall 2016
of lying to federal authorities, prosecutors secretly seized
issue of the Silha Bulletin, “Attorney General Holder Leaves
phone and email records of Times reporter Ali Watkins. (For
Problematic Legacy on Press Rights and Civil Liberties” in
more information on the confiscating of Watkins’ records,
the Fall 2014 issue, “Manning, Kiriakou Face Punishment
see Federal Prosecutors Seize Phone and Email Records of
for Blowing the Whistle on the War on Terror” in the Winter/
New York Times Reporter in Leak Investigation in “Trump
Spring 2013 issue, “Leaks: New Policies Emerge; Congress
Administration Targets Journalist, Leaker
Gets Involved” in the Summer 2012 issue, “The Obama Admin-
of Government Information, and Former
COVER STORY Government Employees Who Took istration Takes on Government Leakers; Transparency May be
a Casualty” in the Winter/Spring 2012 issue, “Judge Rebukes
Classified Documents” in the Summer
Government on Leak Prosecutions” in the Summer 2011 issue,
2018 issue of the Silha Bulletin. For more information on the
“Open Government Advocates Criticize Obama’s Prosecution
lawsuit, see “First Amendment Coalition Sues Department of
of Leakers” in the Winter/Spring 2011 issue, and “The Media
Justice Over Secret Collection of Journalist’s Telephone and
and the Military: Guantanamo Access Rules Loosened; Other
Email Records” in the Fall 2018 issue of the Silha Bulletin.)
Guidelines Set to Limit Leaks” in the Fall 2010 issue.)
Another example is James Risen, a Pulitzer Prize winning
In 2014 and 2015, the DOJ further revised the guidelines,
journalist and author. In 2010, federal prosecutors indicted
strengthening protections for reporters. However, in 2019, The
Jeffrey Sterling, a former Central Intelligence Agency (CIA)
Hill opinion contributor John Solomon reported that then-Dep-
officer, alleging that Sterling provided classified information
uty Attorney General Rod Rosenstein’s office had been
for Risen’s book, State of War. In 2011, then-Attorney General
overseeing for several months the revision of U.S. Department
Eric Holder authorized a subpoena ordering Risen to testify at
of Justice (DOJ) guidelines regarding the obtaining of journal-
Sterling’s trial, to which Risen refused. In 2013, a U.S. Court of
ists’ records by law enforcement. (For more information on
Appeals for the Fourth Circuit three-judge panel overturned
Rosenstein’s actions, see DOJ Reviews Guidelines Regarding
a district court order, which had prevented prosecutors from
Issuing Subpoenas, Court Orders, and Search Warrants
asking Risen the name of his source. After the U.S. Supreme
Against Journalists in “Department of Justice Continues
Court declined to hear Risen’s case in June 2014, he faced
Mulling Policies Regarding Jailing, Subpoenaing, and Searching
potential jail time for contempt. However, the DOJ ultimately
U.S. Journalists” in the Winter/Spring 2019 issue of the Silha
did not seek Risen’s testimony. (Risen and his attorney Joel
Bulletin.)
Kurtzberg were the 2015 Silha lecturers. For more information
The guidelines, titled “Policy regarding obtaining
about the lecture, see “30th Annual Silha Lecture Addresses
information from, or records of, members of the news media;
Challenges to Reporting on National Security Matters” in the
and regarding questioning, arresting, or charging members
Fall 2015 issue of the Silha Bulletin and “30th Annual Silha
of the news media,” previously provided that the “use of
Lecture to Feature New York Times Investigative Reporter
certain law enforcement tools, including subpoenas, court
James Risen and Attorney Joel Kurtzberg” in the Summer 2015
orders, . . . and search warrants to seek information from, or
issue. For more information on the background to Risen’s case,
records of, non-consenting members of the news media [are]
see “Espionage Conviction Ends Lengthy Struggle to Compel
extraordinary measures, not standard investigatory practices.”
Journalist’s Testimony” in the Winter/Spring 2015 issue of the
Therefore, according to the guidelines, these measures may
Silha Bulletin, “Attorney General Holder Leaves Problematic
only be used 1) after the Attorney General has authorized
Legacy on Press Rights and Civil Liberties” in the Fall 2014
the use, 2) when the information sought is “essential to a
issue, “Update: Supreme Court Declines to Hear Reporter’s
successful investigation, prosecution, or litigation,” and 3)
Privilege Cases” in the Summer 2014 issue, “Reporters Struggle
after “all reasonable alternative attempts have been made
to Claim Privilege to Avoid Testifying About Confidential
to obtain the information from alternative sources.” The full
Sources” in the Fall 2013 issue, and “Judges Rebuke Govern-
guidelines are available online at: https://www.law.cornell.edu/
ment on Leak Prosecutions” in the Summer 2011 issue.)
cfr/text/28/50.10. (For more information about the previous
The DOJ’s guidelines regarding obtaining journalists’
DOJ guidelines, see DOJ Reviews Guidelines Regarding
records, 28 CFR § 50.10, date back to 1970 when Attorney
Issuing Subpoenas, Court Orders, and Search Warrants
General John Mitchell instituted them in response to press
Against Journalists in “Department of Justice Continues
concerns about the growing number of subpoenas seeking to
Mulling Policies Regarding Jailing, Subpoenaing, and Searching
compel journalists to reveal confidential news sources. In 2013,
U.S. Journalists” in the Winter/Spring 2019 issue of the Silha
the DOJ amended the guidelines following growing criticism
Bulletin.)
after the department obtained Associated Press (AP) telephone
In 2021, at least three instances of the DOJ under President
records. The same year, the DOJ named Fox News reporter
Trump seizing journalists’ records came to light, prompting
James Rosen as a co-conspirator during a leak investigation of
a State Department official in order to obtain Rosen’s emails.
DOJ Limits, continued on page 4
3DOJ Limits, continued from page 3 CNN’s full reporting on the seizure informed U.S. House of Representatives
concern and criticism from members of of the phone and email records is Intelligence Committee Chairman
the news media and press advocates. available online at: https://www.cnn. Adam Schiff (D-Calif.) and Rep. Eric
First, on May 7, 2021, The Washington com/2021/05/20/politics/trump-secret- Swalwell (D-Calif.) in May 2021 that
Post reported that the DOJ secretly ly-obtained-cnn-reporter-records/index. their metadata had been subpoenaed
obtained Post journalists’ phone records html. and turned over to the DOJ in 2017 and
and attempted to obtain their email Finally, on June 2, 2021, The New 2018. The move came as the committee
records in connection to their reporting York Times reported that the DOJ was investigating President Trump’s ties
on Russian interference in the 2016 secretly seized the phone records of four to Russia. The subpoenas also targeted
presidential election. One story was Times reporters — Matt Apuzzo, Adam other members of the committee, as well
based on classified U.S. intelligence Goldman, Eric Lichtblau and Michael as staff and family members. The Times’
intercepts indicating that then-Sen. S. Schmidt — over the course of four full report is available online at: https://
Jeff Sessions (R-Ala.) had discussed months in 2017. In a letter to the Times, www.nytimes.com/2021/06/10/us/politics/
the Trump campaign with Russia’s the DOJ stated that it also obtained a justice-department-leaks-trump-adminis-
ambassador to the United States, Sergey tration.html.
Kislyak. The full story is available online “The attorney general has taken a On June 11, the
at: https://www.washingtonpost.com/ Associated Press
world/national-security/sessions-dis-
necessary and momentous step to (AP) reported that
cussed-trump-campaign-related-mat- protect press freedom at a critical DOJ Inspector
ters-with-russian-ambassador-us-intelli- time.. . . This historic new policy will General Michael
gence-intercepts-show/2017/07/21/3e704 Horowitz had
ensure that journalists can do their job announced that
692-6e44-11e7-9c15-177740635e83_story.
html?itid=lk_inline_manual_18. of informing the public without fear of his office, the
According to the Post, the DOJ sent federal government intrusion into their department’s
“three separate letters dated May 3 . . . to internal watchdog,
relationships with confidential sources.” was probing the
Post reporters Ellen Nakashima and
Greg Miller, and former Post reporter DOJ’s efforts. On
— Bruce D. Brown, June 17, CBS News
Adam Entous,” writing that the journal-
Reporters Committee for Freedom of the Press reported that the
ists were “hereby notified that pursuant
to legal process the United States
executive director House Judiciary
Department of Justice received toll Committee was
records associated with the following also investigating
telephone numbers for the period from court order to seize email logs, but that the secret subpoenas, including those
April 15, 2017 to July 31, 2017. The “no records were obtained.” The Times targeting members of the press.
letters listed work, home or cellphone reported that although the DOJ did not In a July 19 memo to DOJ leadership
numbers covering that three-and-a-half- specify which article was being probed and federal prosecutors, Garland
month period.” Federal prosecutors as part of an undisclosed leak investi- formalized the commitment he made in
also “got a court order to obtain ‘non gation, the “lineup of reporters and the June, according to the AP on the same
content communication records’ for the timing suggested that the leak investi- day. The memo first emphasized that
reporters’ work email accounts, but did gation related to classified information “a free and independent press is vital
not obtain such records,” according to reported in an April 22, 2017, article the to the functioning of our democracy.”
the Post. four reporters wrote about how James The memo next noted that the DOJ
The Post’s full reporting on the Comey, then the FBI director, handled previously used “a balancing test to
seizure of the phone records is available politically charged investigations during restrict the use of compulsory process
online at: https://www.washingtonpost. the 2016 presidential election.” to obtain information from or records of
com/national-security/trump-justice- The Times’ full reporting on members of the news media.” The memo
dept-seized-post-reporters-phone- the seizure of the phone records is also stated that “[t]he United States has,
records/2021/05/07/933cdfc6-af5b-11eb- available online at: https://www.nytimes. of course, an important national interest
b476-c3b287e52a01_story.html. com/2021/06/02/us/trump-administra- in protecting national security informa-
Second, on May 20, 2021, CNN tion-phone-records-times-reporters.html. tion against unauthorized disclosure.”
reported that the Trump administration On May 21, 2021, several media However, the memo contended that
seized phone records and email records outlets reported that President Joe Biden “a balancing test may fail to properly
of CNN Pentagon correspondent Barbara had said that he would not allow the DOJ weigh the important national interest in
Starr. The DOJ informed Starr about to seize journalists’ phone records and protecting journalists from compelled
the seizures in a May 3 letter, explaining emails, calling it “simply, simply wrong.” disclosure of information revealing their
that federal prosecutors obtained her On June 5, Garland announced that the sources, sources they need to apprise
phone and email records from June 1, DOJ would cease seizing journalists’ the American people of the workings of
2017 to July 31, 2017. According to CNN, materials in order to expose confidential their government.”
prosecutors targeted “Starr’s Pentagon sources. The memo therefore prohibited
extension, the CNN Pentagon booth Five days later, The New York Times several actions, including that “[t]he
phone number and her home and cell reported that the DOJ had also targeted Department of Justice will no longer
phones, as well as Starr’s work and Democratic legislators’ communication use compulsory legal process for the
personal email accounts.” data. The Times revealed that Apple purpose of gathering information
4from or records of members of the of newsgathering, only possessed or National Press Club president Lisa
news media acting within the scope of published government information, Nicole Matthews and National Press
newsgathering activities.” The records including classified information” (em- Club Journalism Institute president
and information enumerated in the phasis added). However, the prohibition Angela Greiling Keane also praised the
memo include compelled testimony, does not affect the DOJ’s ability to target memo in a July 19 statement. “We are
physical documents, telephone records, government employees who leaked grateful the attorney general has at long
metadata, and digital content. The “new government information. last squared Justice Department policy
prohibition applies to compulsory legal The full memo is available online with the First Amendment,” they wrote.
process issued to reporters directly, to at: https://www.washingtonpost.com/ “Too often in recent years, reporters’
their publishers and employers, and to context/u-s-sharply-limits-when-prose- communications records have been
third-party service providers for any of cutors-can-seek-reporter-phone-email- subpoenaed in the name of fighting
the foregoing.” The prohibition applies to records-to-investigate-leaks/9b41fc3b- leaks. The government has a right to
“subpoenas, warrants, court orders[,] . . . ad5d-406f-b061-39ebabccfaea/?itid=lk_in- try to protect legitimate secrets. But
[and] civil investigative demands.” line_manual_3. the public benefits in incalculable ways
The new policy included some The Hill reported on July 19 that Gar- from an unfettered press exposing facts
exceptions, including if “a member of the land said that the DOJ would “support that government officials sometimes
news media is under investigation for a congressional legislation” seeking to put would prefer to keep quiet. The broad
violation of criminal law, such as insider the new standards into a statute. As the and ongoing benefit of that sunshine
trading” or if a journalist “used criminal Bulletin went to press, Congress had not outweighs the government’s interest in
methods, such as breaking and entering, passed any legislation to this effect. clamping down on any particular leak.
to obtain government information.” In a July 19 statement following The new policy gets it right.”
According to The Washington Post on the memo, Reporters Committee for
July 19, the DOJ “may seek reporters’ Freedom of the Press (RCFP) executive — Scott Memmel
records only if the reporter is the subject director Bruce D. Brown praised the
Postdoctoral Associate
or target of an investigation outside move. “The attorney general has taken
Silha Bulletin Co-editor
their journalistic work or is suspected of a necessary and momentous step to
working as an agent of a foreign power protect press freedom at a critical time,”
or with a foreign terrorist group, or if he wrote. “This historic new policy will
there is an imminent risk of bodily harm ensure that journalists can do their job
or death.” of informing the public without fear of
The memo clarified that the federal government intrusion into their
“prohibition does apply when a member relationships with confidential sources.”
of the news media has, in the course
The Summer 2021 issue of the Silha Bulletin includes several
articles adapted from “Privacy and Data Protection,” a chapter
published in the course handbook for the Practising Law
Institute’s Communications Law in the Digital Age conference,
which will take place in November 2021.
Professor Kirtley gratefully acknowledges the contributions of
Silha research assistants Scott Memmel, Jonathan Anderson,
Samantha Brunn, and Claire Colby.
Jane E. Kirtley
Silha Center Director and
Silha Professor of Media Ethics and Law
5Chauvin Trial Marks Key Moment in Minnesota Media
Access to Court Proceedings During Pandemic
O
n Nov. 4, 2020, Hennepin the recording, and no witnesses under the right to a public trial or the right of
County District Judge the age of 18 could appear without access held by the public and press,”
Peter Cahill issued an order express parental consent. No members Cahill wrote. “Spectators may freely
allowing limited audio and of George Floyd’s family were to be attend trials, and the usual trial receives
video recording, broad- filmed without consent. According to little attention, except from family and
casting, and live streaming of the trial of Nielsen, at least 23.2 million Americans friends of the victim or the defendant
former Minneapolis police officer Derek watched on television as Chauvin was and the Court can easily accommodate
Chauvin. Cahill cited the “quite unique” convicted April 20 in the death of George those wishing to attend the trial in per-
circumstances Floyd. The trial represented Minnesota’s son. On occasion, members of the media
of the trial: first livestreamed criminal trial. After a attend and report on the proceedings.”
ACCESS the case drew successful experience with cameras in But due to the COVID-19 pandemic,
international the courtroom, some media attorneys Cahill wrote, televising the trial could
attention and the COVID-19 pandemic are hoping that the trial prompt the allow for meaningful public access while
limited public attendance. According Minnesota Supreme Court to change respecting social distancing guidelines. A
to Cahill, “the only way to vindicate the the rules in the future. Cahill’s full order copy of Cahill’s order is available online
Defendants’ constitutional right to a is available online at: https://z.umn. at: https://z.umn.edu/6z8t.
public trial and the media and public’s edu/6z8q. After Cahill’s initial order allowing
constitutional right of access to criminal On June 18, the Minnesota Supreme recording, Minnesota Assistant Attorney
trials is to allow audio and video cover- Court issued an order to the Advisory General Matthew Frank filed a motion
age of the trial, including broadcast by Committee for the Rules of Criminal Pro- to reconsider. “The risks of broadcasting
the media.” cedure to re-evaluate the current rules witness testimony are particularly acute,
Chauvin was charged with about coverage of criminal proceedings where, as here, live video and audio
second-degree murder, third-degree and “consider whether the requirements coverage may be intimidating to some
murder, and second-degree manslaugh- set forth in that rule for audio and video witnesses and make it less likely that
ter in the death of George Floyd. On May coverage of criminal proceedings should they will testify, potentially interfering
25, 2020, Chauvin, who was joined by be modified or expanded.” A copy of with a fair trial,” Frank wrote in his
three other police officers, apprehended the Minnesota Supreme Court’s order November 25 filing. A copy of the state’s
Floyd for suspicion of using a counterfeit is available online at: https://z.umn. filing is available online at: https://z.umn.
$20 bill. Chauvin knelt on Floyd’s neck edu/6z8s. edu/6z8u.
for 8 minutes and 46 seconds, even after On December 14, a coalition of media
Floyd said he could not breathe and Background organizations represented by Ballard
became nonresponsive, according to the Rule 4 of the Minnesota General Rules Spahr attorneys filed a memorandum
initial criminal complaint. A copy of the of Practice allows media cameras to opposing the prosecution’s motion to
criminal complaint is available online record most criminal proceedings only reconsider. The Silha Center for the
at: https://z.umn.edu/6z8r. On April 20, when the defense, prosecution, and Study of Media Ethics and Law was part
2021, a jury found Chauvin guilty on judge agree. Minn. Gen. R. Prac. 4.01 of the coalition. “The Court rightly held
all charges. (For more information on et seq. The Minnesota Supreme Court that, given the enormous public interest
Floyd’s death, protests that followed, enacted the rule in 2018. (For more infor- in this trial, the limitations imposed by
incidents between the press and police, mation about the evolution of cameras in the pandemic, and the options created by
incidents between the press and demon- Minnesota courtrooms, see “Minnesota modern technology, meaningful access
strators, and subsequent litigation, see Supreme Court Allows Audio and Video equates to remote access,” the filing
“Ongoing Protests and Confrontations Recordings in Some Portions of Criminal read. A copy of the media coalition’s
Between the Press and Police Prompt Cases” in the Summer 2018 issue of the filing is available online at: https://z.umn.
Legal Action, Ethical Debates, and Media Silha Bulletin.) Neighboring states like edu/6z8v.
Advocacy” in the Fall 2020 Silha Bulle- Iowa and Wisconsin have televised trials On December 18, Cahill issued an
tin; “Journalists Covering Fallout from previously, but the U.S. Supreme Court order denying the State’s motion to
George Floyd Death Take Legal Action; has not articulated a national standard, reconsider and amend the initial media
Misinformation Underscores Lessons according to the St. Paul Pioneer Press plan. A copy of that order is available
from 2020 Silha Spring Ethics Forum” in on May 1. online at: https://z.umn.edu/6z8w.
the Summer 2020 issue; and “Special Re- In this case, Chauvin initially agreed
port: Journalists Face Arrests, Attacks, to cameras, but the prosecution opposed Positive Results Build Momentum
and Threats by Police Amidst Protests them. In his Nov. 4, 2020 order, Cahill for Increased Press Access
Over the Death of George Floyd” in the invoked both the defendant’s Sixth Court TV — which provided
Winter/Spring 2020 issue.) Amendment right to a public trial and gavel-to-gavel coverage of the O.J.
According to Cahill’s order, a single the First Amendment right of the public Simpson trial — was the designated
pool producer was allowed to record and the press to access the trial. Cahill pool camera starting three weeks before
the trial and share the feed to other specifically addressed Rule 4 in his the trial, according to a memo from
media outlets. The order set out some order. “Normally, this rule can be applied Minnesota’s Fourth Judicial District on
limitations: no jurors were to appear on without concern that it will impinge on Feb. 16, 2021. A full copy of the memo
6is available at: https://www.mncourts. After the conviction, Minnesota Attor- It wasn’t disruptive, it didn’t create the
gov/mncourtsgov/media/High-Profile- ney General Keith Ellison told KMSP-TV, so-called media circus.”
Cases/27-CR-20-12646/MediaUpdate. the Twin Cities’ Fox affiliate, that he had Though the pandemic was cited as
pdf. Data from Nielsen show that more reconsidered his initial stance. “Look, a major reason for televising this trial,
than 23 million Americans watched the you know, we all watch reality TV shows, Walker said she hopes the success of
trial on television, and even more people that was one thing I was really worried this trial will influence future cases.
watched on their laptops or cellphones. about,” he told the station April 28. “I “We have to get the rule changed, and
The broadcast feed gave the public didn’t want this trial to be a reality show. we’re working on that with the Supreme
insight into the often-mundane happen- I wanted this trial to be a pursuit of the Court,” Walker said. “And I think you’ll
ings of the justice system. truth and I was worried cameras might see a movement to ask the court to
“For me, it’s an affirmation of how interfere with that goal. But it turned change Rule 4 because without that
ordinary this is,” Jane E. Kirtley, Silha out, it worked better than I thought, so change, any prosecutor, any defense
Professor of Media Ethics and Law and attorney can keep
Director of the Silha Center told the cameras out of
Minneapolis Star Tribune on March 19.
“The cameras are having no courts.”
“The cameras are having no impact on impact on what's happening in the On August
what’s happening in the courtroom.” courtroom.. . . There will be a great deal 4, Walker filed
The fact that the cameras did not a motion on
significantly affect the trial could be
of pressure on government entities to behalf of the Media
important. “I think it will eliminate continue this level of access.” Coalition asking
the argument that cameras are the court to unseal
inherently disruptive,” Kirtley told the — Jane Kirtley, juror identities and
Star Tribune. “There will be a great deal Silha Center Director and Silha Professor of “other juror infor-
of pressure on government entities to Media Ethics and Law mation, including
continue this level of access.” the prospective
Hennepin County District Chief Judge juror list, juror
Toddrick Barnette told Minnesota Public I’ll say, I can be wrong, I guess I was a profiles, juror questionnaires and the
Radio (MPR) on April 29 that he was little bit.” original verdict forms.” A full copy of
initially skeptical about allowing camer- In an interview with Silha Research the motion is available online at: https://
as in the courtroom but was reassured Assistant Claire Colby on June 16, mncourts.gov/mncourtsgov/media/
through working with journalists. “Over attorney Leita Walker said that the media High-Profile-Cases/27-CR-20-12646/
time, I felt more comfortable that they coalition she represented was generally Memorandum08042021.pdf.
were really interested in the integrity “really, really happy” with the level of Mitchell Hamline law professor Kate
of the process and worked very hard to access granted. “The camera access Kruse told the Pioneer Press on May 1
make sure there were no violations of itself was all they could have ever asked that the livestreaming of Chauvin’s trial
Judge Cahill’s order,” Barnette said. for — it was not only gavel to gavel, could make it difficult to find impartial
Retired Hennepin County District every second of open court, but it was jurors for the March 2022 trial of the
Judge Kevin Burke told KSTP-TV, the livestreamed as opposed to some sort of three other former police officers. The
Twin Cities’ ABC affiliate, on April 22 delayed, televised rebroadcast,” Walker federal civil rights case against Chauvin
that the process of allowing cameras in said. and his co-defendants “apparently
the courtroom “went perfect” and “gave As stipulated in Cahill’s order, camer- will not be televised or livestreamed,”
the public the right to be there, to see as were turned off for jury selection and because of strict federal court bans on
what happened and to make judgments for testimony of minor witnesses. audio or video presence in federal trial
themselves about the ultimate verdict.” “I think the media probably always courts, according to MinnPost on May
On June 24, Burke published an op-ed wants the cameras on for everything, but 18.
with reporter-turned-lawyer Elizabeth there was generally an understanding For more information on camera
Stawicki in the Pioneer Press arguing of why the court was limiting video, but access in the Chauvin trial, see Judge
for increased camera access to future not audio coverage of those portions,” Allows Audio-Video Recording, Lives-
criminal trials. “Opponents have long Walker said. treaming of Trial in “Court Access and
argued that cameras would taint the Allowing cameras in court was an Medical Privacy Issues Arise in Wake of
legal process and deny defendants fair overall positive experience, she said. George Floyd Killing” in the Fall 2020
trials: jurors would be reluctant to serve; “I think this was an example of where issue of the Silha Bulletin.
judges and attorneys would grandstand; the court really collaborated closely
and witnesses would be afraid to testify. with the press and in a way that allowed — Claire Colby
That didn’t happen in the Chauvin trial the public to see justice unfold in a Silha Research Assistant
— jury selection wrapped up early; the very, very important case,” Walker
judge controlled the courtroom; and said. “There were no moments where I
witnesses testified,” the op-ed read. think anyone regretted camera access.
7Associated Press, ProPublica, and Well-Known
Journalists Raise Ethical Questions and Considerations
I
n the spring and early summer of editor, told CNN on May 30, 2021. Wilder victory and turning their sights on more
2021, questions were raised about was not in a reporting position at the AP, AP journalists. They have routinely made
the ethics of several news reports Carovillano added, and her position did journalists’ identities subject to attack.
and decisions by journalists and not involve covering international news. Once we decide to play this game on the
news organizations. The Associated The AP further alleged Wilder put terms of those acting in bad faith, we
Press (AP) fired a reporter for her tweets other AP journalists in danger because can’t win.” A copy of the letter is avail-
on the Israel-Palestine conflict after she her tweets could suggest that the AP able online at: https://z.umn.edu/70ew.
faced a deluge of right-wing harassment takes sides and its reporters in war zones Margaret Sullivan, writing for The
online; New York would be targets. “It’s really important Washington Post on May 27, 2021, opined
Times op-ed that we maintain our credibility on these that Wilder’s firing is a cautionary tale of
ETHICS columnist David stories,” Carovillano told CNN. “Jour- what happens when bad-faith attacks are
Brooks’ financial nalists’ safety is at stake and the AP’s taken at face value. “News organizations
ties to Facebook credibility is at stake. Our credibility is need to do much more,” Sullivan wrote.
were unveiled; CNN anchor Chris Cuomo “They might start
was discovered to have advised his “Particularly in an era when operations by revisiting
elder brother, Andrew Cuomo, as the like Project Veritas exist in part to try the Gamergate
Governor of New York, who faced sexual controversy in 2014,
assault allegations earlier this year; and to discredit the mainstream media and the nightmarish
ProPublica published the tax information as hack-and-leak operations become campaign of
of some of the wealthiest Americans after more common, it is especially urgent misogynistic
an anonymous source leaked the verified stalking and
documents to the outlet. that news organizations prove they grievance-driven
understand the threat and develop a harassment against
Associated Press Fires Reporter plan to cope with it.” female video game
Emily Wilder journalists and
On May 19, 2021, the Associated Press — Janine Zacharia, other women in
(AP) fired one of its reporters, Emily that industry. The
Stanford University Department of
Wilder, after her pro-Palestine college journalists who
Communication Carlos Kelly McClatchy lecturer
activism at Stanford University and have been targeted
tweets critical of Israel became the target by these kinds of
of a right-wing social media take-down. attacks — espe-
Wilder had started working as an AP constantly under attack. Our social media cially women and people of color — best
Associate in Phoenix, Ariz., just three guidelines exist to protect that credibility, understand the insidious techniques,
weeks prior. The dismissal occurred in because protecting our credibility is the vile motivations and health-threatening
the context of escalating conflict between same as protecting journalists.” repercussions.”
Israel and Palestine. The AP claimed Wilder, however, said in a statement Janine Zacharia, writing for Politico
Wilder had violated its social media poli- on May 22, 2021, that she feels she is “one on May 26, 2021, argued that the AP
cies, but some commentators alleged that victim to the asymmetrical enforcement “essentially caved” to a disinformation
the news outlet had succumbed to what of rules around objectivity and social me- campaign against one of its journalists.
they characterized as a disinformation dia that has censored so many journalists “Wilder’s dismissal has emboldened those
campaign helmed by college students. — particularly Palestinian journalists and who aim to harm our most important
The controversy began on May 17, other journalists of color — before me.” journalistic institutions at a time when
when the Stanford College Republicans Wilder’s statement is available online at: restoring respect for fact-based news is
student group alleged on Twitter that https://z.umn.edu/70ev. paramount for sustaining democracy,”
Wilder, who is Jewish, is an “anti-Israel More than 100 AP employees signed Zacharia contended.
agitator” and highlighted her college an open letter criticizing Wilder’s firing. Zacharia further elaborated that she
activism. Two days later, the AP fired “Wilder was a young journalist, unneces- personally spent two years as part of a
Wilder. sarily harmed by the AP’s handling and Stanford working group studying the
The AP alleged that Wilder violated announcement of its firing of her,” the way actors use information warfare for
its social media policy during the three employees wrote. “We need to know that political purposes. The working group,
weeks of her employment, but the the AP would stand behind and provide Zacharia wrote, looked to the AP’s
company did not elaborate on which resources to journalists who are the practices in developing a playbook on
of Wilder’s tweets actually violated it. subject of smear campaigns and online how to handle situations involving propa-
“Emily Wilder was let go because she harassment. As journalists who cover ganda. And yet, Zacharia contended, “the
had a series of social media posts that contentious subjects, we are often the AP’s firing of Wilder demonstrates that
showed a clear bias toward one side target of people unhappy with scrutiny. managers there have not yet digested the
and against another in one of the most What happens when they orchestrate a threat of disingenuous campaigns even
divisive and difficult stories we cover,” smear campaign targeting another one of against their own employees. Particularly
Brian Carovillano, the AP's managing us? Interest groups are celebrating their in an era when operations like Project
8Veritas exist in part to try to discredit the he had written about the project, accord- the scenes,” the network said. “In part
mainstream media and as hack-and-leak ing to a New York Times statement from because, as he has said on his show,
operations become more common, it is March 6, 2021. The statement went on he could never be objective. But also
especially urgent that news organizations to explain that Brooks’ previous editors because he often serves as a sounding
prove they understand the threat and were aware of his ties to Facebook, board for his brother.. . . However, it was
develop a plan to cope with it.” but after a managerial transition on the inappropriate to engage in conversations
editorial staff his current editors were that included members of the Governor’s
David Brooks Failed to Disclose not. After Buzzfeed’s reporting, the staff, which Chris acknowledges. He will
Facebook Monetary Ties editorial team concluded that the setup not participate in such conversations
On March 3, 2021, Buzzfeed News presented conflicts of interest. Though going forward.” CNN said it would not
reported that David Brooks, a New York he did resign from the paid role, the discipline Chris for his actions.
Times columnist, had been earning a statement said Brooks would maintain Chris Cuomo offered an on-air apology
second salary through a nonprofit partly his volunteer position at the institute. to viewers on May 20, 2021, saying he has
funded by Facebook, yet Brooks had Commentators said they were a unique obligation to journalistic integ-
not disclosed this affiliation in any of his surprised by Brooks’ apparent disregard rity and to his family. “It was a mistake
columns, including those that promoted for such a basic tenet of professional because I put my colleagues here, who
the nonprofit’s work. journalism. In The Washington Post on I believe are the best in the business, in
Multiple news organizations reported March 4, 2021, Patrick Lee Plaisance, the a bad spot,” Cuomo said. But he went
that Brooks’ work on an initiative called editor of the Journal of Media Ethics and further to say he is still going to prioritize
Weave, which is affiliated with the Aspen a communications professor at Penn- his family, and that he knows where the
Institute, aims to combat social isolation sylvania State University, said Brooks’ ethical line is. The video recording of
and build communities of “weavers” “failure to disclose [his compensation] the on-air apology is available online at:
who are supposed to bring together undermines a reader’s ability to assess his https://z.umn.edu/74b7.
disparate groups in the social fabric of claims” and it also damages the overall Erik Wemple, writing for The
society. Brooks has written about Weave credibility of the Times, which readers Washington Post on May 20, 2021, was
on numerous occasions in the Times, expect to act transparently. skeptical of Chris Cuomo’s apology. “The
even going so far as to promote one of its Jan Schaffer, executive director reason that Chris Cuomo ‘acknowledges’
events and then reporting on it later after of J-Lab: The Institute for Interactive that it was inappropriate to advise his
attending it himself. Journalism and former ombudsman of brother in strategy sessions is because,
The Times refused to confirm whether the Corporation for Public Broadcasting well, he got caught violating one of
it knew Brooks was on the Aspen (CPB), wrote on March 8, 2021 that the journalism’s clearest ethical red lines,”
Institute’s payroll, or whether it knew the trend of celebrity journalists holding Wemple wrote. “He gets no credit for
Weave project was ultimately funded by multiple paid gigs is “disturbing.” “And acknowledging the transgression, and
Facebook. A Times spokesperson, Eileen it’s mystifying how journalists — in this how are we to trust the pledge not to
Murphy, told Buzzfeed after it broke era of 24/7 news developments — can backslide?”
the story that the Times would evaluate manage to report and produce breaking Tom Jones, writing for Poynter on May
Brooks’ ties and whether they should be news while also being a regular talking 20, 2021, emphasized the egregiousness
disclosed in future columns. head on various news programs,” of Cuomo’s actions. “The host of a prime-
On March 5, Brooks appeared on “PBS Schaffer wrote. time show on one of the country’s biggest
NewsHour.” When asked if he was re- and most influential cable news networks
thinking his decision not to disclose this Chris Cuomo Advises Andrew Cuomo is advising one of the most powerful and
funding relationship, Brooks refuted the on How to Respond to Sexual Assault influential politicians in this country on
allegation that he failed to disclose his Allegations how to handle serious sexual misconduct
relationship with Facebook. Brooks said, In the first half of 2021, CNN anchor allegations,” Jones wrote. And when
“We did totally disclose it. Everything has Chris Cuomo joined numerous strategy Chris Cuomo hosted Andrew Cuomo on
been public. First, the Times completely calls with his older brother, New York CNN’s primetime evening slot throughout
was informed when I started Weave [as Gov. Andrew Cuomo, as the elder Cuomo the COVID-19 pandemic, Jones asserted,
to] what it was going to be and how I faced multiple sexual assault allegations, the network could have predicted the
was going to get compensated by Aspen. according to The Washington Post on lines would get blurry. “CNN should’ve
Second, the Aspen Institute is completely May 21, 2021. Reportedly, Chris Cuomo seen all this coming, and now it has to
transparent about who the donors are, advised Andrew Cuomo not to resign live with the consequences — which is
and so we released the donors. Third, from office and instead to take a defiant some viewers not being able to trust a
since I started Weave in 2018, I have not stance. Chris Cuomo also invoked major personality on its network,” he
meaningfully written about any organi- “cancel culture” as a reason to hold firm wrote.
zation or individual who has supported against the allegations. Heidi Stevens, writing for the Chicago
us, including Facebook.. . . Fourth, I do According to the Post, CNN later Tribune on May 26, 2021, said that “CNN
understand the concerns, and . . . I want acknowledged in a statement that Chris is walking an uncomfortable line here. By
to be beyond question, and so we’re going Cuomo’s involvement in the strategy choosing not to discipline Chris Cuomo,
to make some changes.” sessions was a mistake. “Chris has they’re making it hard for viewers to trust
Ultimately, Brooks resigned from not been involved in CNN’s extensive that the network’s reports and analysis
his paid role at the Aspen Institute, and coverage of the allegations against are uncompromised by employees’
disclosures were added to all past stories Governor Cuomo — on air or behind
Ethical Questions, continued on page 10
9Ethical Questions, continued from page 9 evidence for lawmakers considering such obtaining the information,” Liptak
personal connections.” And when that changes: Should the biggest winners wrote. One such case is Bartnicki v.
trust erodes either by inaction or choice, in America’s epochal concentration of Vopper, 532 U.S. 514 (2001), in which the
Stevens wrote, “once it’s gone, [it] is wealth over the last 40 years be permitted Court found that the First Amendment
incredibly difficult to win back.” to pay levies of considerably less than allowed a Pennsylvania radio station to
On Aug. 8, 2021, CNN Chief Media 37%?” ProPublica’s editors wrote. air a surreptitious recording of a phone
Correspondent Brian Stelter commented The outlet acknowledged that call. The call participants were officials
on the scandal and appeared to defend whoever leaked the trove of information involved in collective-bargaining negoti-
Chris Cuomo. During a monologue on his to it may have had bad motives for doing ations at a Pennsylvania school district,
program, “Reliable Sources,” Stelter said, so. “We do not know the identity of our and the radio station had received the
“This has been a conundrum for CNN source,” the editors wrote. “We did not recording unsolicited. A federal law — 18
that has no perfect answer, no perfect solicit the information they sent us. The U.S.C. § 2511(1)(c) — makes it illegal for
solution. Some think CNN made it worse source says they were motivated by our any person to “intentionally disclose[],
by letting Chris interview his brother previous coverage of issues surrounding or endeavor[] to disclose, to any other
when COVID-19 was ravaging New York. the IRS and tax enforcement, but we do person the contents of any wire, oral,
But that was an unprecedented time not know for certain that is true. We have or electronic communication, knowing
period. And so is this one: A famous considered the possibility that informa- or having reason to know that the
family in the news, a governor who tion we have received could have come information was obtained through the
soared to the highest heights last year from a state actor hostile to American interception of a wire, oral, or electronic
now falling to the lowest lows — self-in- interests.” communication in violation of this sub-
flicted wounds — and a brother who just ProPublica acknowledged publication section.” The Court held in Bartnicki that
wants to do his job, just wants to anchor of the tax information may have violated the First Amendment protected the radio
his show.” federal law. The news outlet wrote, station’s airing of the recording because
On Aug. 10, 2021, Andrew Cuomo “A federal law ostensibly makes it a the radio station did not take part in the
announced that he would resign as criminal offense to disclose tax return illegal interception of the phone call and
New York’s governor. The decision information. But we do not believe that the content of the recording was a matter
came after the New York State Attorney law would be constitutional if applied of public concern. Further, the Bartnicki
General issued a report concluding that to bar or sanction publication of a story Court reasoned, enforcement of the
Cuomo “sexually harassed nearly a dozen in the public interest when the news federal statute at issue “implicates the
women, including current and former organization did not itself remove the core purposes of the First Amendment
government workers, by engaging in information from the control of the IRS because it imposes sanctions on the pub-
unwanted touching and making inappro- or solicit anyone else to do so — as lication of truthful information of public
priate comments,” and that both he and we did not. And this is not our first concern.” (For more information on the
his aides “unlawfully retaliated against at experience with this law.” ProPublica did Bartnicki case, see “Silha Lecture 2001
least one of the women for making her not reference the particular law at issue, To Focus on Bartnicki v. Vopper” in the
complaints public and fostered a toxic but the outlet may have been referring Spring 2001 Silha Bulletin; “U.S. Supreme
work environment,” The New York Times to 26 U.S.C. § 7213(a)(3), which states, Court Rules In Historic Bartnicki Case”
reported on Aug. 11, 2021. in relevant part: “It shall be unlawful in the Summer 2001 issue; and “Bartnicki
for any person to whom any return or v. Vopper Topic of Sixteenth Annual Silha
ProPublica Publishes Taxes of the return information . . . is disclosed in Lecture” in the Fall 2001 issue.)
Wealthiest in America a manner unauthorized by this title Tom Jones, writing for Poynter on
On June 8, 2021, ProPublica thereafter willfully to print or publish in June 9, 2021, argued the journalistic
published a series of articles on how any manner not provided by law any such value outweighed the risk. “ProPublica
much the wealthiest Americans pay in return or return information.” Violation does show, in detail, why we should at
taxes each year. The outlet expected of this provision is a felony and may be least examine how taxes work for the
people to question the ethics of such a punished by a fine of up to $5,000, up to 5 rich,” Jones wrote. “And that gives its
move, and its lead editors published an years in prison, or both. investigation journalistic value.”
explainer, writing, “Many will ask about However, legal experts believe Jeremy Barr, writing for The
the ethics of publishing such private data. this publication prohibition is Washington Post on June 8, 2021,
We are doing so — quite selectively and unconstitutional as a violation of the observed that media organizations
carefully — because we believe it serves First Amendment when a news outlet generally “prefer to know who is sending
the public interest in fundamental ways, has obtained the information lawfully source material to have a better grasp of
allowing readers to see patterns that and the information is a matter of public the authenticity of the material, the way
were until now hidden.” ProPublica’s concern. Writing about the statute on in which it was obtained and the moti-
explainer is available online at: https://z. March 3, 2017, New York Times Supreme vations of the sender. But, in this case,
umn.edu/70et. Court Correspondent Adam Liptak said some journalists praised ProPublica for
ProPublica aimed to reveal just how the publication prohibition “is almost focusing on the veracity of the docu-
inequitable the tax code is, and where certainly unconstitutional.” That is be- ments as the primary factor in deciding to
it can be changed to better reflect cause the Supreme Court has found that publish, not the identity of the source.”
Americans’ priorities as the Biden “journalists are free to publish truthful
Administration looks to levy funds for information on matters of public concern — Samantha Brunn
social programs in the next three years. notwithstanding laws to the contrary Silha Research Assistant
“The secret tax files offer new, factual as long as they did nothing illegal in
10You can also read
