Three press freedom threats to watch during Trump 2.0

With Donald Trump’s inauguration today, journalists and whistleblowers can expect four more years of legal attacks, threats, smears, bullying, and other abuses we haven’t even thought of yet — all intended to stop them from reporting the news.

While no one can predict exactly what the next four years have in store, here are three press freedom issues that we’ll be following closely at Freedom of the Press Foundation (FPF).

Increased leaks investigations

Trump’s first term was marked by a surge in leaks investigations. Unnamed sources close to his incoming administration (ironic, isn’t it?) have told reporters to expect even more of the same during his second term.

That means whistleblowers or anyone even suspected of unauthorized leaking could face invasive investigations, such as surveillance of their movements and activities, and broad legal demands for their electronic records. Those who are caught and prosecuted may also be punished harshly, including with long prison sentences.

The Department of Justice could also issue subpoenas or other legal demands to journalists or their tech providers seeking the identities of reporters’ sources, as it did during Trump’s first term. Journalists who refuse to comply with demands to name their confidential sources could be fined or jailed — Trump has been clear that he would like to see just that.

Unfortunately, a law that would have prohibited that, the PRESS Act, failed last Congress, thanks to Democrats’ stalling and Sen. Tom Cotton’s lying. We’ll continue to press Congress to pass a federal law that would protect investigative reporting, during the Trump years and beyond, by prohibiting jailing journalists for refusing to burn their sources. Congress must also reform the Espionage Act — a law that’s been used by both Democrats and Republicans to prosecute those who leak classified information to the press — to ensure it applies only to spying, not whistleblowing.

FPF will also continue to oppose attempts to undermine secure communication tools such as end-to-end encryption, which will become increasingly important in the absence of strong legal protections for journalist-source confidentiality. Journalists and sources should familiarize themselves with best practices for digital security. Sources should brush up on methods for lessening their own risk and may want to consider using SecureDrop and a Tor Browser to share documents or information anonymously.

Criminal prosecutions of journalists

Journalists could be jailed not only for refusing to reveal their sources but also for publishing information that the Trump administration or oligarchs in its orbit don’t want to be made public.

Thanks in no small part to the Biden administration’s decision to continue Trump’s prosecution of WikiLeaks founder and publisher Julian Assange, the Trump administration will have an easier time abusing the Espionage Act to prosecute journalists who publish national defense information. Assange pleaded guilty to violating Section 793(g) of the act last June, the first time in U.S. history a publisher has been convicted under the law.

It’s a short legal leap from prosecuting Assange to prosecuting national security reporters at traditional news outlets. Assange’s guilty plea was based on conduct that journalists engage in every day: soliciting classified information from the public, encouraging a source to provide him with classified information, and publishing that information.

A journalist charged under the Espionage Act for publishing newsworthy information will have a strong First Amendment defense. But we shouldn’t rely on courts to make the right call when it comes to protecting press freedom against spurious national security claims. Congress must reform the Espionage Act not only to protect whistleblowers but also ensure that it can’t be used against journalists.

Unfortunately, the Espionage Act isn’t the only threat. Federal prosecutors could use other criminal laws against journalists over the next four years. Computer hacking laws like the Computer Fraud and Abuse Act, in particular, have already been abused to go after digital journalists like Florida journalist Tim Burke.

With the possibility of increased protests during the Trump administration, we may also see journalists covering protests arrested for crimes like trespassing. While the DOJ recently issued important guidance and recommendations about the First Amendment protections for journalists covering protests, there’s no guarantee it will continue to follow them under Trump.

FPF will continue to speak out against the criminal prosecution of journalists for doing their jobs and push to ensure that they receive full First Amendment protections.

Abuse of government surveillance against the press

We’re also concerned about increased government surveillance of the press over the next four years, especially through tech providers.

The government already has the power to issue legal orders requiring a tech company to turn over a journalist’s digital records, and it can do so in secret by gagging the company. DOJ guidelines limit the circumstances under which the government can issue those legal demands, but the next DOJ could simply ignore or repeal them.

If the government can’t get a legal order for tech company data, it can often buy it. No law prevents the FBI and intelligence agencies from buying location or other sensitive data about Americans from data brokers that they usually couldn’t get without a warrant. And they’re doing exactly that.

The Trump administration will also have expanded powers under Section 702 of the Foreign Intelligence Surveillance Act, which Congress reauthorized and broadened last year to expand the types of entities that can be forced to help the U.S. spy. While some lawmakers promised a later “fix” to that part of the law, that fix has never come. Section 702 is often sold as a purely foreign surveillance law targeting terrorists and drug traffickers, but it’s also been used to spy on Americans, including journalists, without a warrant.

While there’s a real risk of abuse of these spying powers over the next four years, there’s also a possibility of reigning them in. Some of the most vocal critics of government surveillance in recent years have been Republican lawmakers aligned with Trump, who called on the last Congress to kill FISA. Speaker Mike Johnson recently ousted a pro-FISA representative, Mike Turner, from his chairmanship of the House Intelligence Committee.

FISA will be up for reauthorization again during Trump’s second term. MAGA skepticism toward government surveillance may create opportunities to pass FISA reform and other bipartisan laws limiting government spying, like the Fourth Amendment is Not For Sale Act.

At the same time, some Trump appointees have been singing a different tune more recently and embracing government spying powers. Republicans may very well find that they enjoy vast spying powers when they’re the ones who control them, just like the Democrats did. In that case, FPF will be there to remind them that most Americans don’t want to live in a surveillance state.

Also read our article on Biden's three biggest press freedom failures.