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MARCH 2022
RESEARCH REPORT

Smartphone security for the mobile journalist: What the law says about securing a phone against police searches

News coverage of civil unrest increasingly features smartphone video shot on-site by both amateur and professional journalists. This makes personal electronic devices a tempting target for police seeking either to gather evidence for use against protesters, or to destroy evidence that might be used against officers. Because phones are so easily confiscated, and their data erased, it's important for "mobile journalists" to practice optimal smartphone secrurity.

In a new article for the Journal of Law and Technology, Brechner Center researchers Frank LoMonte and Philip Sliger explain how federal courts have interpreted constitutional protections against unreasonable police searches in the context of password-protected smartphones. One takeaway from recent court rulings is that Fifth Amendment protections against self-incrimination will apply if police try to force a journalist to state the numeric passcode for a locked device, but may not apply if police simply hold up a phone for facial-recognition unlocking. 

The article also explains how a little-publicized federal statute, the Privacy Protection Act, offers an additional layer of protection against intrusive police searches for journalists' unpublished work. But it cautions that a recent federal appeals-court ruling out of California 
 
THE GAGGING OF AMERICA

Webinar spotlights epidemic of unlawful corporate "gag rules" violating federal labor law


Tech giants Google and Tesla are among the companies recently forced to rewrite their restrictive employee handbooks that forbade employees from saying anything to the media about their work without approval. Such policies are commonplace across corporate America -- but, according to the National Labor Relations Board (NLRB) and federal courts, they're also against the law. Gagging employees from speaking to the press keeps them from enlisting help in improving working conditions, the NLRB's central concern.

In a Feb. 4 webinar hosted by the Society for Advancing Business Editing and Writing (SABEW), the Brechner Center's Frank LoMonte and journalist Matt Drange of Insider explained how the "culture of nondisclosure" interferes with the public's access to candid information about America's most influential companies -- including information about sexual harassment and other hazards. The webinar includes tips for journalists about what to do when confronted with a heavy-handed media gatekeeping policy that may be illegal under federal labor law.
 
 
FLORIDA FOCUS


Journalists win access to child welfare case files -- but will soon lose access to university presidential searches

 
When an investigation into wrongdoing is concluded, Florida law requires government agencies to open the investigative file for public inspection. But years after the suspicious death of a 1-year-old toddler in Dade County, Florida's child welfare agency continued insisting that its case file was confidential. On March 1, a circuit judge agreed with the Miami Herald that the records were improperly withheld -- long after secrecy became justifiable, because the state's attorney had already closed the case and brought charges against both parents.  
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Every year, the law of access to government records and proceedings in Florida is weakened by newly enacted exemptions to transparency -- and this year, the state is poised to join a growing majority of states where the public has no say in the selection of university presidents. Senate Bill 520 was pushed by college trustees, who prefer to operate without public scrutiny, over the objection of faculty organizations that note a wave of scandals and short-lived presidencies associated with secret hires. Although the bill says that the public will have access to the "final round" of candidates 21 days before a hire is made, every other state with such a law has simply deemed the trustees' secret choice to be "the" finalist, so that only one name is ever disclosed. The bill has passed the House and Senate and now heads to the governor, who is widely expected to sign it.
IN THE COURTS

Courts throw public spotlight on records of state election probe, privatized jails  


A top legislator and the state's chief election investigator, who's also a former Supreme Court justice, so flagrantly violated the Wisconsin open records law that they should each pay $1,000 in punitive damages, a judge decided in a rare case of financial sanctions for frivolously withholding public records. Dane County Circuit Judge Frank Remington decided March 2 that a citizen watchdog group, American Oversight, was entitled to records of a Republican-initiated probe into 2020 presidential vote-counting in Wisconsin, which was headed up by former justice Michael Gableman. 

A California appeals court says the public is entitled to see records about the operation of a privately owned detention center holding detainees at the behest of the federal Immigration and Customs Enforcement agency.  The operator of the Imperial Regional Detention Facility claimed to be exempt from a state law that entitles the public to inspect records of jails that hold inmates under contract with cities, because the operator was merely a vendor hired by the owner of the facility to manage it -- and therefore, was not actually a party to the contract. The court saw through that technicality, and ruled Feb. 24 that the facility -- regardless of which corporate entity is managing it -- was intended to be covered by the California Public Records Act.

In Indiana, the state's open government ombudsman ruled Feb. 17 that Indiana University trustees broke the law in approving a $582,000 contract extension for the outgoing university president without discussing or voting on the decision at a public meeting. The trustees claimed no violation occurred because the board did not make the decision, but rather, delegated its contracting authority to the board chair, who acted unilaterally. But Public Access Counselor Luke Britt wrote that "it strains credulity that a board was wholly uninvolved until an agreement was signed, sealed, and delivered" -- and, in any case, even if the trustees had delegated contracting authority to the board chair, that decision was not properly made in an open public meeting, either.
FEDERAL FOCUS

Members of Congress rebuke federal agencies for excessive secrecy

 
In a break with tradition, the Defense Department released only a partial version of its annual report assessing the effectiveness of key weapons systems, and critics on Capitol Hill want to know why. In a Feb. 23 letter, leaders of the House Committee on Oversight and Reform asked Defense Secretary Lloyd Austin to justify why the public was given a sanitized report "significantly watered down and stripped of key details," including such innocuous information as the names of vendors that sell ammunition to the military.
  
Some of the same House members are also demanding an action plan from the U.S. Justice Department to address a growing backlog in fulfilling Freedom of Information Act (FOIA) requests, and complying with a 2016 law that requires pro-actively posting high-value documents to the web. In a Feb. 23 letter, a bipartisan group of six House and Senate members gave Attorney General Merrick Garland a March 9 deadline to produce a response showing that the DOJ is acting on persistent FOIA failings identified by the Government Accountability Office. Among the concerns: A 97% increase in the number of FOIA requests not being timely fulfilled since 2012, and inaction by one-fourth of all federal agencies in uploading their highest-demand records to public reading rooms without waiting to be FOIA'd.
WHAT WE'RE READING

A tragic police shooting turned a Kansas parent into an open-government warrior



 
When a suburban Kansas City-area police officer shot 17-year-old John Albers to death in his family's own driveway while assigned to make a "welfare check" on Alberts' safety, Sheila Albers was galvanized into a quest for answers. Why had Overland Park police so quickly escalated to deadly force, when the teenager was doing no more than slowly backing his car out of the driveway?  

As she dig into the circumstances of the January 2018 shooting, Albers became convinced that law enforcement officials were exploiting loopholes in the Kansas Open Records Act to keep the public -- including the Albers family -- in the dark. She sued, and ultimately won access to the internal investigative report that absolved the shooter, former officer Clayton Jenison, of criminal wrongdoing.  
More than two years after the fatal shooting, thanks to Albers' dogged amateur sleuthing, it came to light that the city not only had cleared Jenison of any crimes but paid him a $70,000 severance to leave the police force "voluntarily," meaning his personnel record would reflect no firing for misconduct. And when a local television station finally gained access to the investigative file after suing the city, the records raised serious doubts about how diligently the city had investigated Jenison's conduct.  

In an in-depth profile, the KLC Journal, published by the nonprofit Kansas Leadership Center, explains how the senseless loss of her son turned Albers, a former school principal, into a crusader for police accountability and transparency. As the magazine says: "Her story shows how everyday people, not just journalists, can leverage public records to shape communities for the better."
 
GOVERNMENT GAGGED

Watchdog group challenges Virginia judge's removal for speaking to the media


State officials violated the First Amendment when they removed a Virginia magistrate judge for giving a newspaper interview about a high-profile criminal case, a newly filed federal lawsuit alleges. Court watchdog group Judicial Watch is suing in federal district court on behalf of former magistrate judge Elizabeth Fuller, who was fired in October 2021 as punishment for speaking with the Alexandria Times newspaper.

Acting in her non-judicial personal role, Fuller filed a complaint about a licensed bail bondsman who acknowledged having furnished the gun and automobile used in a July 2020 homicide. She then talked to the Times about that complaint, and her concerns that the accused killer had been released from custody as part of COVID-19 jail safety measures. Alexandria's chief magistrate, Adam Willard, accused Fuller of violating judicial canons that forbid disclosing confidential information learned in the course of duty. 
 

Public employees have substantial free-speech protections that their employers cannot take away, espeically when speaking in their off-duty lives about matters of public concern. Appointed judges fall into an interesting gray zone, as past First Amendment cases have typically focused on teachers, police officers and other rank-and-file employees disciplined for their speech. In those cases, employees almost always have prevailed when punished for speaking to the press about work-related matters.

The complaint, filed March 1, says that Fuller challenged her firing unsuccessfully through an internal grievance mechanism, making a lawsuit the only resort. It also says Fuller has been denied eligibility for unemployment compensation since her termination. The suit not only seeks compensation for Fuller, but also a court rule declaring the ethical rule under which she was disciplined to be unconstitutionally over-broad. 
EXCITING EVENTS

Schooled in silence? How public education gags employees from speaking about their work, and what journalists can do about it

 
America's public schools are the focus of a raging culture war over what educators can say about race and gender, and how safe it is (or isn't) to teach face-to-face during a global pandemic. But journalists often cannot incorporate the voices of rank-and-file teachers into their coverage, because of heavy-handed policies that deflect media queries to professional P.R. spokespeople. That's a loss for the teachers, the journalists, and the families that count on the news media for unfiltered coverage of school safety issues.

The National Press Club is hosting a virtual panel discussion March 16 at 12:30 p.m. Eastern about the growing problem of "P.R. message control" in education, and what it means for the public's ability to stay informed about whether their schools are operating honestly and effectively.

The Society of Professional Journalists organized the event, "Opening Access," as part of Sunshine Week 2022, an annual celebration devoted to the importance of the free flow of information in American society. The SPJ is partnering with the Brechner Center on a project, "The Gagging of America," to draw attention to the illegality of regulations that forbid employees from blowing the whistle to the news media about workplace concerns.

The Brechner Center's Frank LoMonte will join an expert panel that includes: Eva-Marie Ayala, Education Lab editor for The Dallas Morning News; Randi Weingarten, president of the American Federation of Teachers, AFL-CIO; and Delece Smith-Barrow, education editor at POLITICO. Registration is free, and sign-ups are now open.
(MORE) EXCITING EVENTS



Sign up now for "Technology, Media & Privacy Law," March 25 at UF's Levin College of Law and online
 

What will newsrooms and government workplaces look like as routine tasks are offloaded to artificial intelligence? What legal and ethical concerns does automated decision-making raise, and how can they be solved? Tough and timely questions for a day-long dialogue bringing together experts from across the globe March 25 for the annual Technology, Media & Privacy Law conference.
 
Attendees will hear from New York Times technology writer Kashmir Hill and other leading researchers and scholars in law, journalism and technology, about how A.I. is changing the way news and government services are delivered, and how policymakers can craft safeguards to keep powerful new technologies from being abused. 

Registration is free (and Florida-licensed lawyers can receive Continuing Legal Education credit) by visiting the TMPL conference website.

"Something that was created by Nike or Coca-Cola was never an education record. Nothing about these agreements fits what Congress had in mind when they made education records confidential."

 
The Brechner Center's Frank LoMonte, in an interview with WRAL-TV, about the fight by college athletic departments to conceal "Name, Image and Likeness" (NIL) endorsement contracts from public records requesters, on the grounds that the contracts qualify as federally protected "education records"
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