Ahead of the German national elections last February, Musk declared, on X (ex-Twitter) :

• “If you are unhappy with the situation, you must vote for change, and that is why I’m really strongly recommending that people vote for AfD” in support of AfD.

• “Only the AfD can save Germany,” to reiterate his support while re-posting a video from far-right political activist Naomi Seibt.

A German court ruled that the platform must immediately provide researchers with access to data on politically related content. One of the first major judicial tests of the Digital Services Act (DSA) and specifically its Article 40 on data access and scrutiny.

Varying researches showed that the algorithmic recommender system on X favours AfD content massively and disproportionally (see for example here). This suggests that Musk instructed his staff to align the platform to his personal political believes and to directly interfere in the German elections on 23. February.

Furthermore, there is evidence of Russian interference and misinformation having been spread and amplified by AfD supporters ahead of the German national elections (see here).

The take-away is that social media platforms, with obscure algorithms and no active content moderation are a fertile territory for manipulation.

As pirates, we advocate and call for the effective enforcement of the Digital Services Act, to prevent electoral manipulation in a member state, including through the application of fines. Furthermore, we underline the critical importance of transparency in algorithms especially the ones used by social media as our collective attention is their main trade and for concrete defence mechanisms to be setup to ensure the personal and digital integrity of users, subjected without their knowledge or consent to hostile influence operations.

Authored by Paul Diegel and Florian Roussel

The post Social Media Doesn’t Want What’s Best For You : The Case of Musk and AfD first appeared on European Pirate Party.

Max Frankel, a New York Times reporter and editor who helped push for the publication of the Pentagon Papers, died Sunday at the age of 94.

A Pulitzer Prize-winning journalist, Frankel was well known for his decades of reporting. But it’s another piece of writing, not initially published in a newspaper, that holds a special place in First Amendment history.

An affidavit by Frankel filed in New York Times Co. v. United States, better known as the Pentagon Papers case, has become one of the most important public documents laying out the realities of national security reporting and Washington’s unspoken rules around government secrecy and leaks.

Initially drafted as a memo to the Times’ lawyers, Frankel’s arguments schooled lawyers, the courts, and anyone who believed government secrets should always be off limits to the press.

“What Frankel wrote became one of the most important documents in history of press freedom,” said James Goodale, who was the general counsel for the Times during the Pentagon Papers case. “Not only did it sway our outside lawyers to defend the case in court, but we turned it into sworn statement which helped sway the district court judge to rule in our favor.”

Frankel wrote: “Without the use of ‘secrets’ … there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.”

Importantly, Frankel explained how government officials routinely reveal “secrets” to the press for their own purposes:

“Presidents make ‘secret’ decisions only to reveal them for the purposes of frightening an adversary nation, wooing a friendly electorate, protecting their reputations. The military services conduct ‘secret’ research in weaponry only to reveal it for the purpose of enhancing their budgets, appearing superior or inferior to a foreign army, gaining the vote of a congressman or the favor of a contractor. The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps. High officials of the Government reveal secrets in the search for support of their policies, or to help sabotage the plans and policies of rival departments. Middle-rank officials of government reveal secrets so as to attract the attention of their superiors or to lobby against the orders of those superiors.”

Of course, what Frankel was defending was not the publication of secrets leaked purposefully by government officials, but rather the publication of a classified study of the Vietnam War leaked without authorization by whistleblower Daniel Ellsberg. But Frankel and other reporters knew that if they relied only on the official leaks, the public would only be getting part of the story — the part that benefited the government.

They also knew that classification wasn’t all it was cracked up to be. As Frankel explained in his affidavit, classification decisions aren’t always based on the national interest. He wrote that:

“the Government and its officials regularly and routinely misuse and abuse the ‘classification’ of information, either by imposing secrecy where none is justified or by retaining it long after the justification has become invalid, for simple reasons of political or bureaucratic convenience. To hide mistakes of judgment, to protect reputations of individuals, to cover up the loss and waste of funds, almost everything in government is kept secret for a time.”

The manipulation of classification decisions and strategic leaks to the press remain commonplace in Washington today, more than fifty years after Frankel laid it all out. Officials from both parties routinely make public secret information when it serves their purposes, from former CIA director David Petraeus, who leaked classified information to his biographer and received just a slap on the wrist, to President Donald Trump himself.

But what may be changing is the courage of news outlets and other institutions to stand up to government officials, as The New York Times, The Washington Post, and numerous other newspapers did when they published the Pentagon Papers and exposed the government’s lies about the Vietnam War.

It’s not easy to challenge government authority today, especially when the President and his cronies have made no secret of their desire to throw publishers, reporters, and sources in jail. But it also wasn’t easy for journalists and news outlets to challenge President Richard Nixon, who, until Trump, was perhaps the most anti-press president in our history.

Still, Frankel and others who worked on the publication of the Pentagon Papers chose to stick out their necks and stick up for press freedom. The result was the Supreme Court’s decision repudiating government prior restraints on the press in almost all circumstances, perhaps the most important press freedom decision today.

Unfortunately, there’s no guarantee that the Supreme Court today will be as willing to defend the First Amendment and the free press. But that makes it all the more important that reporters defend press freedom to the public and explain why it matters loudly and repeatedly.

Defending press freedom must mean defending the right to publish government secrets, even when the government objects. It also means defending the brave whistleblowers who make sure that the government doesn’t get to control what the public knows.

Enough time has passed that we’re losing some of the journalists and whistleblowers who fought for press freedom during the Nixon era. Today, we must look to their examples, and their words, to make the case that it’s necessary and right for the press to publish government secrets that inform the public.

freedom.press/issues/the-endur…

EP Plenary session – White paper on the future of European defence
Strasbourg, March 12, 2025 – The European Parliament has today adopted a historic resolution on the White Paper on the Future of European Defense. The document emphasizes the need for Europe’s strategic autonomy, reducing dependence on third countries, and strengthening defense cooperation within the EU.

The resolution responds to current security challenges and explicitly identifies Russia and its allies – Belarus, China, North Korea, and Iran – as the greatest threats to the security of the EU and its partners. “We must strengthen our support for Ukraine, expand our defense capabilities, and ensure that Europe is not dependent on the whims of the United States or other powers. There is talk of hundreds of billions for defense, but without a clear plan, these are just empty words. We don’t need more declarations or summits – we need real investments that match the €15 trillion strength of the European economy. Now is the time to show authoritarians around the world that Europe doesn’t just talk – it acts. And we must act now – every day we lose is paid for with Ukrainian blood,” says Gregorová.

“Wars today are not fought only with tanks and missiles but also through disinformation, cyberattacks, and sabotage. I am glad that this resolution clearly states: we must also defend ourselves in the digital space. If we want to protect not only our borders but also our democracy, we need a unified European approach to countering hybrid threats – from cybersecurity to uncovering election manipulation,” warns Gregorová.

As part of the resolution, the European Parliament calls for the swift implementation of the “ReArm Europe” plan, which should ensure long-term investments in the European defense industry and strategic technologies. “If we don’t invest in defense now, we will pay much more in the future – and not just financially. Unpreparedness for the worst-case scenarios would cost us incomparably more than decisive and timely action. We need a clear plan, concrete funding, and real investments; otherwise, we risk not only our security but also our economic stability,” says Gregorová.

“If we are to have real defense capabilities, we must also invest in European arms production and modern military technologies. If we want to protect Europe, we must produce European weapons and send a clear signal to arms manufacturers and investors that this is a long-term commitment by our states,” Gregorová concludes.
The post European Parliament Approves Resolution on European Defense: “It’s Time to Stop Relying on Others,” Says Gregorová first appeared on European Pirate Party.

We are pleased to present the following report from Kay Schroeder, PPI’s representative at the United Nations Office in Vienna. This year is the first time since before COVID that we were able to send representatives to all three UN offices (New York, Geneva, and Vienna). Please let us know if you would also like to visit the UN on behalf of PPI.

Report of Kay Schroeder on UNOV Meetings of the UNODC

The UNODC (United Nations Office on Drugs and Crime) invited its member states to attend the 68th Commission on Narcotic Drugs (CND) in Vienna, held from March 10th to 15th. This marked my first appearance as an ECOSOC consultant for Pirate Party International at an international conference, and I was eager to see what it would entail. I dressed in my best outfit (as shown in the picture) and arrived punctually by bike at 10 a.m. on Monday.

As it was the arrival day, most attendees were busy with accreditation, familiarizing themselves with the venue, and reuniting with colleagues. The main event took place in the Plenary Hall of Building M. On the first day, member states presented general statements outlining their perspectives on the UNODC’s work. It was quite a family atmosphere. People were respectful and most of them seemed to know each other for years. I enjoyed the relaxed atmosphere and the openminded intellectualism in the room. It appeared so unpolitical to me, very different from what I recognized in parliaments.

The 68th CND was chaired by Ambassador Shambhu Kumaran, India’s representative to the UN in Vienna.

The event’s agenda included six resolutions for adoption, outlined in the COW (Committee of the Whole) draft proposals. These proposals were deliberated in the COW sessions, chaired by Andranik Hovhannisyan, Armenia’s ambassador to Austria. Additionally, various side events hosted by member states provided in-depth perspectives on their respective challenges and proposed solutions. These sessions were essential for understanding the complexities underlying the negotiations, as drug-related issues differ significantly between countries.

While synthetic drugs were the primary focus, much discussion centered on the repercussions of decisions made during previous CNDs. One memorable side event, organized by the Colombian delegation, explored the environmental impact of cocaine regulation. They highlighted how the drastic reduction in coca cultivation—from 20,000 hectares to 2,000 hectares—had led to a sharp rise in cattle farming, increasing from 6,000 to nearly 600,000. This raised the critical question of which outcome posed a greater threat to the environment.

Environment besides was one of the critical points of the whole event. The Sustainable Development Goals (SDGs), serving as the foundation for the 2030 Agenda for Sustainable Development, faced significant criticism and sparked ongoing disagreements regarding the proposals.

The side events were primarily organized by member states that had submitted proposals, often in collaboration with one another. As a result, these events were also joint efforts. Moreover, there were several lectures discussing the progress of drug management, treatment and prevention in specific countries.

The program was extensive, offering a wide array of insightful sessions. This made it necessary for me to carefully decide which events to attend, as all of them appeared highly engaging.

Throughout the week, the Committee of the Whole (COW) worked to refine the wording of each resolution, aiming to maximize the likelihood of their approval by the greatest number of members during the plenary session. The process strongly reminded me of the Liquid Democracy decision making approach, which we also encountered challenges with at Pirate Party Austria.

Each proposal underwent a series of revisions, as countries sought to add, remove, or rephrase elements until a final version emerged that could gain acceptance from all member states. Achieving unanimity proved to be a significant challenge at the UN, drawing notable criticism during Friday’s voting session. Nevertheless, the process unfolded as a continuous, real-time negotiation, much like the Liquid Democracy system, and faced similar challenges.

The importance of precise wording and language was paramount, particularly as each proposal faced opposition from different member states. To secure unanimity, it became evident that the proposals would need to be diluted to a point of near unrecognizability. The legalistic nature of the discussions, along with the increasing tensions throughout the week, was palpable. What began as a warm, familial atmosphere gradually evolved into a more professional and determined environment —still courteous in interactions but resolute in addressing the issues at hand.

The suspense reached its peak on Friday. It was voting day, and everyone was eager to see how things were unfolding. Certain side events were held privately for consultations, leaving the public uninformed about the progress. The COW faced certain expectations, particularly from the UNODC itself, which is acutely aware of the glaring failures in drug policy over recent years. The growing number of addiction-related impairments, particularly due to synthetic opioids like Fentanyl and Ketamine, as well as the rampant spread of pink cocaine—a drug cocktail containing MDMA, Ketamine, and various painkiller ingredients in South America—has led to harsh criticism of their own work.

This was accompanied by accusations directed at various countries, whether between consumers and producers (e.g., the US and China) or between advocates of legalization and proponents of prohibition. Decisions needed to be made, and resolutions had to be adopted. To keep it short. All proposals put forward by the COW were passed by a majority. However, the voting process highlighted weaknesses within the UN structure, similar to those seen in the EU. The U.S. government rejected all proposals, asserting that including the Sustainable Development Goals— viewed by them as a hidden global political agenda—was unacceptable under the principle of national sovereignty.

This critique arose despite the SDGs forming the foundation of the widely endorsed Agenda 2030.

Furthermore, the U.S. government fully rejected the Agenda 2030, calling for its removal during CND69. Argentina, with only one abstention, consistently aligned its decisions with those of the U.S. This stood out to me as a noteworthy and insightful example of advocacy in action.

The U.S. government’s proposal for removal, introduced as item 9, sparked extensive debate, highlighting the tensions among global interest groups. While the EU and its allies firmly opposed the proposal, it found support from the U.S., China, Russia, Iran, and Argentina. This clearly underscored a significant fault line between the states. The issue exposed weaknesses in the decision making, as the EU and its allies secured a majority in the vote due to their numerical advantage, despite not representing the relative population proportion. This outcome led to frustration among the other member states, as they also asserted their sovereignty of interpretation.

In my view, fostering greater cohesion in the future clearly requires institutional reforms, which can be achieved through further democratization.

Those are my findings of the CND 68. I hope you enjoyed the reading. Check out the pictures and stay alert for future updates on my work as ECOSOC consultant for PPI at United Nations.

For more in-depth information about the event, you can explore the CND Blog for live updates from the UN Commission on Narcotic Drugs or visit the official page for the 68th Session of the Commission on Narcotic Drugs.

CND Blog – Live reporting from the UN Commission on Narcotic Drugs

Session 68 of the Commission on Narcotic Drugs.

pp-international.net/2025/03/u…

Our next member meeting is tonight, Sunday, March 23rd. We start at 8pm and will end once our agenda is complete or 9pm, whichever comes sooner.

To participate:

• go to communitybridge.com/bbb-room/m…;
• enter your name;
• enter the access code listed on the page;
• click the Join button.

Summaries of the meetings and agendas are at our wiki. You can view the 2025, 2024, 2023 and 2022 meeting recordings.

masspirates.org/blog/2025/03/2…

The following was a letter submitted by an anonymous Pirate supporter using the pseudonym “Forward Thoughts”, exploring the subject of “political polygamy”. This article is apart of the project “Message in a Bottle”, allowing supporters of the US Pirate Party to submit editorial articles to the United States Pirate Party website.

The very concept of “political polygamy” is common in the United States. It just is not talked about openly or accepted by most people.

What is political polygamy?

The term, which [author Forward Thoughts] coined, refers to supporting more than one political party.

Not unlike regular polygamy, there is a stigma surrounding it from both people within the party you support and those outside of it. This is especially true in our duopoly system consisting of the Republican and Democratic parties.

Let me give you an example of what I mean by political polygamy. In one presidential election, you vote for a Democrat, and in another presidential election, you vote for a Republican.

Another example would be voting for a Republican for District Attorney while voting for a Democrat for City Alderman. This can happen in the same election or across two consecutive elections.

In case you are unfamiliar, polygamy is when you are partnered with more than one person at any given time. It is for people who want to extend their romance to multiple partners.

The thing about being poly is that there is a stigma surrounding it. You may be branded a “whore” for something as harmless as refusing to date just one person at a time.

Despite our rigid duopoly system, where third party candidates who run for office are seldom given a chance to succeed in their campaigns, there is a way to give them a fair shake in elections against duopoly candidates.

What if I told you political polygamy does not have to be limited to supporting both a Democrat and a Republican in different political office campaigns in the same election cycle? It does not even have to be limited to supporting them for the same office in different election cycles.

We need to replace our current plurality voting system, where your vote is a “one and done” choice, with ranked choice voting. This system allows you to vote for more than one candidate based on preference. You mark your first choice candidate with a one, your second choice with a two, and so forth.

Ranked choice voting increases voter confidence by eliminating the “throwaway vote” concern. It boosts voter turnout, including among third party voters. It also encourages more third party candidates to run for office.

For those unfamiliar, civics is a class taught in some, but not all, high schools across the nation. It does not just explain the inner workings of government. It is also designed to encourage young people to see why voting matters.

Additionally, it teaches students how to form their own political ideology.

The Supreme Court ruling in Citizens United v. FEC overturned the Bipartisan Campaign Reform Act, which had required oversight on soft money campaign spending and transparency in political advertising.

This means corporations and political parties can now spend unlimited amounts of money on political campaigns at the federal level, as long as they are domestically based in the United States. The Supreme Court ruled that laws restricting campaign financing and political advertising violate the First Amendment.

Additionally, there is now less transparency in political ads.

To change this, the Supreme Court needs to overturn Citizens United v. FEC by hearing a case in which a lawyer successfully argues that campaign spending limits do not violate the First Amendment.

Federal elections for the United States House of Representatives and Senate are important in our federalist system. However, they are not everything. If you want to see the most change in your area, vote in local, county, and state elections.

For example, Vermont, known as the Green Mountain State, has the Progressive Party, a left leaning party that holds offices at various levels of government throughout the state. Even in rural areas, it has strong support.

Electoral fusion, also known as fusion voting, is when a candidate running for office is endorsed by two or more political parties of similar ideology in a single election year.

In the past, all fifty states had legal fusion voting, but today, only Connecticut and New York allow it.

The benefits of fusion voting include allowing political parties to gain ballot access by endorsing a candidate without requiring the candidate to register directly with that party. It enables political parties of similar ideology to work together toward shared goals. It also provides voters with more information on candidates who may not be covered in mainstream media.

For political parties, candidates, and incumbents, fusion voting makes elections more informative because votes from fused party lines can indicate distinct policy demands, political messages the candidate or incumbent is trying to send, discontent among the electorate, and the electoral strength of minor parties.

Proportional representation is an electoral system in which the distribution of seats in a legislature corresponds closely with the percentage of total votes cast for each party.

In this system, the party with the most votes gets the most seats, while parties with fewer votes still receive some representation.

Countries that use proportional representation include Denmark, Norway, Sweden, Iceland, Portugal, Switzerland, the Netherlands, and Finland.

If implemented in the United States, this system would allow third party candidates, even those receiving a small share of votes, to gain representation and influence public policy by offering a distinct perspective.

There is no single way to fix our electoral system, nor can all the solutions mentioned here fully resolve the problem or make political polygamy independent of the two party system.

Change will require a grassroots movement of voters who are fed up with their votes being wasted on candidates bought out by wealthy political donors. These donors seek to maintain power as long as possible, which is a direct insult to democracy.

There also needs to be a neutral way to educate voters about why they should care about politics.

Once these steps are taken, we can make significant progress toward true political polygamy, one that fosters grassroots democracy and robust voter participation.

In the words of Abraham Lincoln, “Government of the people, by the people, for the people.”

uspirates.org/message-in-a-bot…

Dear Friend of Press Freedom,

It’s Sunshine Week. The forecast for press freedom, unfortunately, isn’t great, but we’re working rain or shine to fight threats new and old. And this week we helped drive significant progress in making public interest journalism more accessible. Read on for the latest.

Public records are for the public

The news business isn’t just any business — it serves a vital role in our democracy. But media outlets can’t serve that role if they’re bankrupt. As a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

Fortunately, Wired magazine has a solution — in partnership with Freedom of the Press Foundation (FPF), it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act. We commend Wired for tipping the balance between public interest and business toward the former. We hope others will follow its lead (and shoutout to outlets like 404 Media that also make their FOIA-based reporting available for free). And we hope readers will reward these outlets’ sacrifice. Subscribe to Wired here and 404 here.

Catch us on NPR while you still can

NPR, itself very much in the crosshairs of the Trump administration, included FPF Executive Director Trevor Timm in a conversation about the future of freedom of the press. “Trump is the most acute and urgent example of a president restricting press freedom,” he said. “It’s imperative that it becomes a front-and-center issue.”

Listen to the conversation, also featuring Brian Stelter from CNN’s “Reliable Sources” and April Ryan, Washington Bureau Chief for Black Press USA.

Tech companies must safeguard journalists’ communications

Last week, Director of National Intelligence Tulsi Gabbard announced on social platform X that the government is “aggressively pursuing recent leakers from within the Intelligence Community and will hold them accountable.” Gabbard’s post cited leaks to several news outlets as examples.

The first Trump administration taught us that tech companies often must be the first to oppose government attempts to access journalists’ communications with sources. Some did during Trump 1.0 but, with tech executives cozying up to Trump, we fear things may be different this time. Read more here from FPF Senior Advocacy Adviser Caitlin Vogus.

The harsh realities of prison journalism

Many point to places like Hungary and Russia for examples of where America might be headed when it comes to free speech. But we shouldn’t forget we already have two million people living under a censorship regime right at home.

Stern and prison reform activist Theodore Amey wrote for Columbia Journalism Review about the many challenges — like violent retaliation, arbitrary transfers, and seizures of equipment — facing journalists behind bars. “When the public entrusts and pays for correctional agencies to care for those who are incarcerated, it deserves to know what’s going on,” they explain.

You can’t ask DOGE anything, but you can ask us

After months of speculation about how the Elon Musk-led Department of Government Efficiency would be subject to transparency rules, a judge recently found, over DOGE’s objections, that the agency is “likely covered” by the Freedom of Information Act.

This would mean that DOGE cannot hide its records through the Presidential Records Act as it had previously hoped. To break down this recent development, our Daniel Ellsberg chair on government secrecy, Lauren Harper, engaged with Reddit’s r/IAmA community members in a Q&A session. You can read an edited version on our website or view the full thread here.

You can read more from Harper about the decision — and DOGE’s outrageous position that it’ll need years to comply with records requests — here. She also joined The Dissenter podcast to talk about the Trump administration’s intensifying abuses of secrecy and wrote an op-ed for Sunshine Week about the importance of FOIA and the need to improve it.

What we’re reading

Conservative groups urge FCC to end probe into ‘60 Minutes’ Harris interview (Reuters). Right-leaning organizations are telling the Federal Communications Commission that Chair Brendan Carr’s “regulatory overreach” would “advance precedent that can be weaponized by future FCCs.” They’re right, but Carr already knows that and abuses his power anyway.

We asked every Mass. lawmaker whether they should be subject to public records law. Only a handful responded (Boston Globe). “Transparency is just not a priority — and it needs to be and the public should demand nothing less," said New England First Amendment Coalition Executive Director Justin Silverman.

The last days at Voice of America (Columbia Journalism Review). Former VOA press freedom reporter Liam Scott wrote about the last days before Trump’s executive order to gut the broadcaster and put its employees on administrative leave.

A statement from Columbia Journalism School faculty defending press freedom (Columbia Journalism School). An important statement from the Columbia Journalism School faculty on how critical it is to defend press freedom on campus.

Media shield law bill passes Idaho Legislature with unanimous support (KIFI-TV). Red and blue states alike recognize the need for journalist-source confidentiality. Every state and the federal government needs a shield bill. Those that already have them should strengthen and modernize them.

How to share sensitive leaks with the press

freedom.press/issues/public-re…

The first (publicly known) leak investigations by the Trump administration are here.

On March 14, 2025, Director of National Intelligence Tulsi Gabbard announced on X that the government is “aggressively pursuing recent leakers from within the Intelligence Community and will hold them accountable.” Gabbard’s post cited leaks to the Huffington Post, The Washington Post, NBC, and the news site The Record as examples.

There’s no indication yet that the investigations have swept up journalists. But the first Trump administration targeted reporters in an attempt to uncover sources as part of leak investigations, and news outlets have been bracing themselves for a repeat.

One lesson to be learned from the first Trump administration? Tech companies often must be the first to push back against government attempts to access journalists’ communications with their sources.

Leak investigations in Trump 1.0

To understand why, it’s important to remember the investigations initiated during President Donald Trump’s first term, and briefly continued under the Biden administration, that targeted reporters from The New York Times, The Washington Post, and CNN.

In 2020, the Department of Justice sought telephone and email records from reporters at each outlet in an attempt to identify their sources. But they didn’t demand those records from the journalists themselves — instead, they secretly demanded them from their telephone and email service providers.

The DOJ could do that because of the Stored Communications Act, a law that allows the government to issue a subpoena or get a search warrant or court order demanding access to certain stored communications records held by third party service providers. In some circumstances, the SCA also allows the DOJ to obtain a nondisclosure order that bars the provider from telling anyone about the demand, including the person whose records are being sought.

Tech companies should declare now that they’ll oppose all legal demands for journalists’ electronic communications records in court and fight gag orders.

Of course, if the provider doesn’t have any records, it also won’t have anything to secretly turn over. That’s why we always recommend that journalists engaged in sensitive communications consider using end-to-end encrypted services like Signal, which also doesn’t collect or retain metadata about communications.

But when a provider does have relevant records of journalists’ sensitive electronic information — such as who they’re emailing and when — the SCA allows the DOJ to get a court order requiring that they be turned over to the government without the journalist knowing it’s happening or having the chance to object in advance.

As a result, the only entity that may be able to object to an overbroad or illegal order is the provider, that is, the tech company that holds the records. Thankfully, at least some of the service providers who received the DOJ’s demands for reporters’ records in 2020 objected on behalf of their customers.

For instance, Google, which ran The New York Times’ email system and received the court order targeting four Times reporters, resisted the demand and insisted that the Times be informed, as required by its contract with the news outlet. After the Times’ lawyers then objected to the order, the DOJ withdrew it. As a result, the government didn’t obtain any email records from the Times’ reporters.

DOJ guidelines on media subpoenas may not stand in the way

Following the revelation that the first Trump administration had sought records from news outlets, the DOJ strengthened its internal guidelines to bar prosecutors from secretly seeking journalists’ records in most cases. But journalists and tech companies shouldn’t assume that means that the current DOJ can’t or won’t come after reporters’ electronic records.

For one thing, the DOJ’s guidelines aren’t enforceable in court, and the DOJ already didn’t follow parts of the old version of its internal rules when it demanded records of the Times, Post, and CNN reporters. The current DOJ could simply ignore the guidelines or repeal them.

The DOJ could also abuse an exception in the guidelines that allows the government to seek legal demands for a journalist’s records when the journalist is “not acting within the scope of newsgathering” and is the subject of an investigation and suspected of committing an offense.

When applied correctly, this exception is extremely narrow. But there’s every reason to believe that Trump’s DOJ would stretch the exception beyond recognition to go after reporters’ records. After all, Trump has declared that engaging in journalism is itself a crime, claiming in a recent speech at the DOJ that what the media does is illegal because it writes bad things about him.

Tech companies must stand up for journalists

All of this means that tech companies must be ready to fight back against legal demands from the DOJ seeking records of journalists who are their customers and oppose gag orders preventing them from telling journalists about the demands. But will they?

We hope the answer is yes, but we fear otherwise. Chief executives from Meta, Amazon, Google, and, of course, X, are cozying up to Trump and trying anything they can to curry favor with him. At least some of them may decide that it’s better to just quietly comply with DOJ demands for journalists’ records rather than fight back.

But we’d love to be proven wrong, and there’s an easy way to start. Tech companies should declare now that they’ll oppose all legal demands for journalists’ electronic communications records in court and fight gag orders barring them from telling reporters and news outlets when their records are being sought. If the DOJ knows that these companies will aggressively fight back, it may think twice about using them to surveil journalists in secret.

Better yet, if companies don’t want to be put in the position of having journalists’ or others’ data to turn over in the first place, they should expand end-to-end encryption and collect and store as little information as possible about all users’ communications. That may mean less data for them to mine for profit. But the benefits for privacy and freedom would be priceless.

freedom.press/issues/tech-gian…

After months of speculation about how the Elon Musk-led Department of Government Efficiency would be subject to transparency rules, a judge recently found that the agency is “likely covered” by the Freedom of Information Act and will likely have to make its records available to the public by request.

This would mean that DOGE cannot hide its records through the Presidential Records Act — which prohibits records requests of presidential materials for at least five years after a president leaves office.

This is all good news, but it’s not a guarantee DOGE’s records will soon see the light of day.

To break down this recent development, our Daniel Ellsberg chair on government secrecy, Lauren Harper, engaged with Reddit’s r/IAmA community members on March 18 in a Q&A session.

The following select questions from various Reddit users, and Harper’s answers, have been edited for brevity and clarity. You can view the full thread here.

Can I get some more context on the use of the word “likely” covered by FOIA in the judge’s ruling? That appears to leave a lot of legal wiggle room.

There is definitely a lot of wiggle room. U.S. District Judge Christopher Cooper’s ruling was preliminary, so it might not stick.

There are some things to consider in terms of whether DOGE goes from “likely” to “definitely” covered. It will depend on if the government appeals the ruling (I’m sure that it will but it has not yet), and the outcome of two other FOIA lawsuits that are challenging DOGE’s status as a FOIA entity.

So if DOGE is illegally destroying documents, a court tells them they’re illegally destroying documents, and they just keep doing it because in the worst case scenario they get a pardon. What’s the point of any further litigation? It feels like the Republicans are using their hands in soccer and we're still just trying to use our feet.

I think the question of “what do we do if the Trump administration and DOGE don’t comply with court orders” is a good one — but we are not at the point where the government is completely ignoring court orders.

As it stands, I think the FOIA litigation serves a few purposes. It generates a lot of attention and reporting, and public awareness and outrage does have an impact. It also serves to educate members of Congress who are looking for ways to be responsive to public outrage and can get them to prod the agencies more directly.

You are absolutely right that much of this is playing defense. There needs to be a way to be proactive, so agencies don’t take it upon themselves to ignore FOIA requests or destroy records.

Do you honestly think DOGE is maintaining records as the law demands? Are records being created in a repository of record? Is there a person(s) who are responsible for managing those records as the law demands? As a former records manager, I’m guessing they aren’t.

I do not think DOGE is following proper procedures. My big concern at the moment is that DOGE, beyond possibly destroying records, may be establishing memorandums of understanding with all the federal agencies it accesses that basically say, “your records are our records now.” This might mean other agencies can’t release their own records in response to FOIA.

I think this is additionally complicated by the fact that it has fired much of the senior leadership at the National Archives. If the lights aren’t on at the National Archives, we are going to have a records-keeping crisis across the entire government.

Are there repercussions if DOGE destroys or alters the data it is accessing? How are they able to access some of these databases without the proper clearances? Will this be considered a spillage?

Yes. In theory, there are repercussions for the unlawful destruction of federal records. You can read more about what those are here.

The million dollar question with this, as well as with FOIA compliance, is whether anybody at the Department of Justice would stand up to DOGE. Considering that the Trump administration just fired the head of the DOJ’s information policy office, there’s good reason to worry the DOJ will stay silent.

Regarding the clearance issue: We simply don’t know the status of many DOGE employees’ clearances. That said, the president has the ultimate discretion about when to grant security clearances, and Trump has granted security clearances over the objections of the FBI in the past.

In terms of access to these databases, I think DOGE is relying on 1) intimidation, and 2) cooperation from sympathetic agency heads. We’ve seen more than once that when officials protest granting DOGE access, they are fired.

Has there ever been a person (Musk) or agency setup that they run (DOGE) involved with the U.S. government in such a way before? If so, what’s the closest example? If not, what are the ramifications going forward to setting precedent?

DOGE is unique in most ways I can think of, but I think the closest examples of how DOGE should be run in terms of transparency can be found elsewhere within the Executive Office of the President, which is where DOGE is located.

DOGE is also VERY unique in terms of how it operates within other federal agencies and the access that it has been granted. An outstanding question is: What is DOGE doing with the records it’s accessed at places like the Office of Personnel Management (where it installed its own servers) and the U.S. Agency for International Development? Is DOGE making copies of agency records, taking records entirely off of agency servers, or something else?

It’s also worth noting that while Musk is obviously the force behind DOGE, he’s not the administrator. This makes his role in the government even murkier.

I’ve never made a FOIA request before, and in doing so, specifically, for information on DOGE, do you see any possible blowback to the requester? After all, we are dealing with an entity (DOGE) that is highly sophisticated in its information gathering. Can my request come back to haunt me (i.e. through doxxing me, or something worse)?

I would encourage people not to be afraid. You have the right to request information under FOIA, and plenty of people do it. That said, there are instances where people do get nervous filing FOIA requests (with places like ICE and the FBI, for example) because you have to include personal information including an address.

If this is a situation you find yourself in, let your conscience be your guide. All of the FOIA officials in the federal government who I have ever met are on the side of the requester, for the most part. They are doing their job, they know the rules, and they follow them.

Read the full thread on Reddit and check out our explainer video about this recent ruling below.

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