Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world. It maintains an extensive database of international case law. This is its newsletter dealing with recent developments in the field.
Community Highlights and Recent News
• Columbia Global Freedom of Expression has joined nearly three dozen media and press freedom organizations in an amicus briefs in support of CPJ’s appeal in its lawsuit against the CIA seeking documents on whether U.S. intelligence agencies knew of threats to Washington Post columnist Jamal Khashoggi before his murder by the Saudi government.
● In case you missed it, the archived video of Columbia Global Freedom of Expression’s panel at RightsCon “The business of spying: litigating against surveillance” is now posted. The panel was co-hosted by the Electronic Frontier Foundation and brought together David Greene, Civil Liberties Director at Electronic Frontier Foundation, Sarah McKune, Surveillance Strategic Litigation Project Lead at Amnesty Tech and Gil Gan-Mor, Director of Civil and Social Rights Units at the Association for Civil Rights in Israel, to discuss human rights risks posed by surveillance and litigation efforts to curb them.
● In light of demonstrations across the world, the UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, has issued General Comment No. 37 on Article 21– Right of peaceful assembly. The timing coincides with UN Special Procedures and the UN human rights office condemning the disproportionate use of force against people taking part in peaceful demonstrations across the United States as well as journalists covering these protests. US authorities have deployed federal security officers to various cities to quell demonstrations against racial injustice, raising concerns some protestors have been detained outside the protection of the law which may give rise to arbitrary detention and other human rights violations.
● Freedom of the Press Foundation joined a US Supreme Court brief this month in Van Buren v. United States, an upcoming case about the primary federal “anti-hacking” law: the Computer Fraud and Abuse Act. Their brief, led by the Reporters Committee for Freedom of the Press, argues that the law must be narrowly construed or risk unconstitutionally restricting protected First Amendment speech.
Decisions this Week
Trump v. Vance
Decision Date: July 9, 2020
The Supreme Court of the United States ruled that US President Donald Trump must comply with a grand jury subpoena for his personal financial records, rejecting his claim of absolute immunity while in office. New York District Attorney Cyrus Vance, Jr. issued a grand jury subpoena to Trump’s accounting firm Mazars USA, LLP for personal financial records, including his tax returns as part of a criminal investigation into alleged campaign finance violations and other illegal conduct involving the President and his businesses. President Trump brought the action claiming neither he nor Mazars had to comply on the grounds that as President he had complete immunity from state criminal processes under the Supremacy Clause of the US Constitution and that the subpoena created a burden of ‘diversion, stigma and harassment’ which interfered with his ability to execute his official duties under Article II. The Court rejected Trump’s argument that it would create an undue burden and taking into consideration that the subpoena was for personal documents required for a state criminal investigation, the Court found the President stood in ‘nearly’ the same situation as any other ordinary citizen. Further, rules of grand jury secrecy would prevent any stigmatization and grand juries were prohibited from initiating investigations out of an intent to harass or cause malice. The Court also rejected the argument that a heightened standard of need was required for such information under Article II on the ground that denying the grand jury evidence for the criminal investigation would hamper the public interest in fair and effective law enforcement.
Trump v. Mazars
Decision Date: July 9, 2020
The US Supreme Court held that a congressional subpoena to obtain the President’s personal, non-official information is valid only if it is related to a legitimate task of the Congress and takes onto consideration the special separation of powers issues raised by such actions. Congressional subpoenas were issued to two major financial institutions (Deutsche Bank and Capital One) and Trump’s personal accounting firm, Mazars LLP. President Trump sued to prevent Mazars and the financial institutions from complying with the Committee’s subpoena, alleging that the House Committee on Oversight and Reform’s investigation into his financial records served no legitimate purpose and raised crucial separation of power concerns. The Court laid down a four-point guiding test to assess whether a subpoena directed at procuring the President’s personal information was related to or in furtherance of ‘valid legislative purposes’. By a majority of 7-2, the Supreme Court vacated the judgment of the lower courts and remanded the matter for further proceedings.
Court of Justice of the European Union
Independent Data Protection Centre (ULD) v. Wirtschaftsakademie
Decision Date: June 5, 2018
The Grand Chamber of the Court of Justice of the European Union issued a preliminary ruling holding that the administrator of a Facebook page was a joint controller with Facebook with respect to the processing of personal data of the individuals visiting the page. Wirtschaftsakademie, a private educational company, was held liable under German laws for actively and deliberately contributing to the collection of users’ personal data by employing a free Facebook tool that used cookies to generate anonymous statistical information about users visiting the page. The Court considered that the administrator took part in the determination of the purposes and means of the processing of personal data through various tools such as the use of filters to isolate demographic information. The Court further held that German law was applicable and the German supervisory authority was competent to exercise its powers in deactivating the page. As a final point, the Court stated that recognizing page administrators as controllers would ensure greater protection of the rights of those visiting the page.
The Frontier of Expression: Russia and Central Asia
On July 27, 2020, Saint-Petersburg’s and Moscow’s prosecutors charged Radio Freedom and journalist Tatyana Voltskaya with spreading false information about COVID-19. The second week of April, Voltskaya wrote an article for Radio Freedom based on an anonymous interview with a doctor about ventilator and staff shortages in Saint-Petersburg’s hospitals. According to the doctor, the shortages were present before the pandemic, but worsened during it. The conditions sometimes forced doctors to pick and choose patients who should receive treatment while allowing others to die. Days before the article was published, the Russian Parliament passed a law that specifically penalized broadly defined misinformation and disinformation concerning COVID-19. Voltskaya was charged under this new law after she refused to give the doctor’s name to the police. If found guilty, she may be heavily fined, forced to do correctional labor for up to a year, or imprisoned for up to three years. Radio Freedom was charged under an older “fake news” law and may receive a small fine. It was ordered to take down the article in question.
On July 25, 2020, law enforcement detained and questioned the chief editors of three media organizations in Karakalpakstan, western Uzbekistan, for re-posting false information about the death of the region’s governor. The false news that the governor died from COVID-19 first appeared on an Uzbek language Telegram channel. Five days later, some bloggers and eventually Karakalpak media re-published the claim. The same day, the Ministry of Health issued a statement denying that the governor was dead. Around midnight, over a dozen law enforcement officials raided the house of the chief editor of Makan.uz and brought her to the prosecutor’s office. Editors of Kruz.uz and Kar.24.uz were summoned to the prosecutor’s office by phone after midnight. All three were questioned about why they republished the false information and were released between three and five in the morning. The editor of Makan.uz explained that she published the news without seeking an official confirmation because of mistrust in the government. According to her, the authorities hid information about the deaths of other officials in Karakalpakastan and failed to keep the public updated on the scale of the pandemic in the region. Censoring information about deaths of high officials is not a rare occurrence in Uzbekistan. When Islam Karimov, Uzbekistan’s dictator of 27 years passed away in 2016, it took almost a week for the authorities to publicly admit it.
● The Electronic Frontier Foundation, in partnership with the Reynolds School of Journalism at the University of Nevada, Reno, launched The Atlas of Surveillance database, the largest-ever collection of searchable data on police use of surveillance technologies, created as a tool for the public to learn about facial recognition, drones, license plate readers, and other devices law enforcement agencies are acquiring to spy on our communities.
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.