Legal Clinic: Harvard Cyberlaw Clinic

Cyberlaw Clinic files amicus brief on behalf of journalists supporting firearms database transparency

Posted on by

Note: A version of this post originally appeared on the Cyberlaw Clinic’s blog.

The Harvard Cyberlaw Clinic filed an amicus brief (pdf) last week in the United States Court of Appeals for the Second Circuit on behalf of a group of data journalists and media organizations, advocating for greater access to government records stored in databases under the Freedom of Information Act (FOIA).

The brief supports the plaintiff-appellee Everytown for Gun Safety Support Fund (Everytown) in an appeal arising out of a FOIA request submitted by Everytown to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This is the second brief the Clinic has filed on this topic, the first being filed in Spring 2019 in the case CIR v. DOJ.

The ATF hosts a database known as the Firearms Trace System, or FTS. The FTS contains data about the source and movement of firearms recovered by federal, state and local law enforcement. Everytown requested records containing data on successful traces for firearms used in suicides and suicide attempts, aggregated along several axes including state and time period. Everytown specifically requested aggregate data because the ATF’s history of relying on the Tiahrt Amendment, a rider contained in annual appropriations acts from 2003 to 2012 that prohibits disclosure of firearm trace information to non-law enforcement requesters, but allows the release of “statistical aggregate data.”

The ATF did invoke the Tiahrt Amendment, but also claimed that it was not obligated to release aggregate records because doing so would constitute creation of a new record, which is not required of agencies under the FOIA. The ATF outline a detailed process that involved not only locating and producing the responsive records, but also cleaning up the data, filling in missing data points, and producing data visualizations. The ATF argued that these steps exceed what was required under the FOIA.

The District Court for the Southern District of New York found in favor of Everytown, ruling both that the Tiahrt Amendment did not constitute a proper basis for a FOIA exemption and that production of the requested data did not require creation of new records. The ATF then appealed to the Second Circuit.

The amicus brief submitted by the Clinic focuses on the new records question, arguing that access to aggregate data in a database does not require creation of a new record because it uses the same functions as access to individual data points–a task the ATF recognizes is required under the FOIA. The brief provides a brief explainer on the nature of databases and notes that, contrary to the ATF’s argument, there is no technical difference between searching for “raw” data or “aggregate” data. It goes on to argue that there should, therefore, be no legal difference between the two.

The brief also addresses the ATF’s attempt to inflate the time required to respond the Everytown’s request by including data clean up and visualization work, neither of which would be conducted in response to a typical FOIA request. Finally, the brief points out the negative consequences of the ATF’s restrictive view of the FOIA, which would require requesters, agencies and courts alike to have detailed technical knowledge of agency databases in order to make, process and review FOIA requests.

Amici on the brief include:

  • MuckRock, a journalism and government transparency nonprofit that has helped thousands of requesters around the United States better file, share and understand freedom of information requests;
  • The Reporters Committee for Freedom of the Press, an unincorporated nonprofit association whose attorneys provide pro bono legal representation, amicus curiae support and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists;
  • Dana Amihere, data editor at Southern California Public Radio (KPCC/LAist);
  • Meredith Broussard, an associate professor at the NYU Arthur L. Carter Journalism Institute and author of “Artificial Unintelligence: How Computers Misunderstand the World”;
  • Stephen K. Doig, a senior faculty member of the Walter Cronkite School of Journalism at Arizona State University; and
  • Jeff South, a retired professor from Virginia Commonwealth University who specializes in data journalism.

The Cyberlaw Clinic is honored to have represented these amici and hopes the Second Circuit Court of Appeals will take into account their expertise. The brief was written by Spring 2020 clinical students Sarah Alawi, Stephany Bai and Lauren Yonkoski with supervision from Clinical Instructor Mason Kortz.

Harvard Cyberlaw Clinic announces launch of new First Amendment fellowship program

Posted on by

This post originally appeared on the Cyberlaw Clinic’s blog on October 15, 2019. Read about other grant recipients of the Legal Clinic Fund here.

The Harvard Cyberlaw Clinic, in partnership with the Berkman Klein Center for Internet & Society at Harvard Law School, is proud to announce the launch of the Initiative for a Representative First Amendment (IfRFA) in the fall of 2019.  Directed by Kendra Albert, a Clinical Instructor with the Cyberlaw Clinic and Lecturer on Law at Harvard Law School, IfRFA aims to expand the study of First Amendment, free speech, and freedom of expression issues to include the active participation of legal practitioners and practitioners-in-training who exist at the intersection of multiple marginalized identities. The Initiative seeks to cultivate a broader and more diverse community of freedom of expression practitioners, allowing for heightened engagement on a wide range of free expression issues.

IfRFA’s creation was also guided by the principle that the onus of diversity and representation should not fall exclusively on the shoulders of the underrepresented, and that more effort needs to be made on the part of elite institutions to challenge existing patterns of systemic bias. In the words of Initiative Director Kendra Albert, “It’s on those of us already in First Amendment practice to create opportunities for a new generation of law students to see how the issues that matter to them are affected by the First Amendment. The Cyberlaw Clinic is proud to host such an important initiative, and we’re grateful to our clinical community and funders for supporting it.”

This fall, IfRFA will begin accepting applications from students at law schools throughout the United States to select a small group of qualified Fellows for placement at legal clinics specializing in First Amendment or freedom of expression work. Fellows will be given stipends to both perform clinic work as well as the opportunity to participate in facilitated discussions about emerging and ongoing issues in free speech law. The provision of stipends aims to further democratize the application process by relieving prospective participants of the burden of choosing between joining IfRFA or a well-paying job. Once live, the application for the fellowship program will be open to 1L students until early spring of next year, with the in-person programming kicking off in earnest in the summer of 2020.

Tackling challenges to freedom of expression requires the inclusion of First Amendment practitioners who vary in terms of race, gender identity, sexual orientation, religion, and ability. Designed to bolster the voices and impact of law students of color and LGBTQ law students,  IfRFA endeavors to make free speech practitioners as diverse as the populations affected by freedom of expression issues. The Initiative also aims to widen the scope of issues free speech practitioners can investigate along with arguments and evidence they can marshal. 

The Initiative is being advised by G.S. Hans, Assistant Clinical Professor of Law at Vanderbilt Law School, and Christopher Bavitz, the WilmerHale Clinical Professor of Law at Harvard Law School. It has been financially supported by the Legal Clinics Fund, a fund established by Democracy Fund, Heising-Simons Foundation, and the Klarman Family Foundation.

Information about IfRFA’s application requirements and deadlines will be made available upon the fellowship’s official launch in the fall. To stay up-to-date with IfRFA, join the fellowship program’s mailing list here.

Harvard Cyberlaw Clinic files amicus brief arguing for broader access to government databases

Posted on by

The Harvard Cyberlaw Clinic filed an amicus brief (pdf) in March in the United States Court of Appeals for the Ninth Circuit on behalf of a group of data journalists and media organizations, advocating for a different approach to Freedom of Information Act (FOIA) requests relating to databases. The brief supports the Center for Investigative Reporting in an appeal arising out of a FOIA request submitted by CIR to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

CIR requested data from ATF’s firearm trace database, seeking records about firearms that were originally owned by law enforcement. In its denial of the FOIA request, ATF cited the Tiahrt Amendment, a rider contained in annual appropriations acts from 2003 to 2012. The Tiahrt Amendment prohibits disclosure of firearm trace information in response to FOIA requests, but allows the release of “statistical aggregate data.” Unfortunately, some courts have held that agencies are not required to release aggregate data that they have not already compiled because it constitutes production of a “new record,” which is not required under FOIA.

The lower court ruled in favor of ATF,  finding that CIR’s request would require ATF to create a new record. A Ninth Circuit decision on this case has the potential to shape FOIA jurisprudence relating to databases, which will have wide-reaching effects since more and more records are being stored in database format.

The Cyberlaw Clinic’s amicus brief focused on whether searching, filtering, sorting, and other forms of database manipulation constitute the creation of a new record. Amici explain how databases like the one used by ATF are structured, and how a database can be queried to yield information in various arrangements. While courts have previously analyzed databases as analogues to massive filing cabinets storing thousands of records, amici show that a database is like no filing cabinet that has ever existed. In fact, databases may have more in common with the famed Room of Requirement at Hogwarts than with how documents were stored on paper.

The amici include sixteen individual data journalists and professors of journalism, and five media-related organizations. All of them have a significant interest in a strong right of access to records held in government databases based on their extensive experience with government transparency processes, including FOIA, and with the technical aspects of working with structured data, including databases.

The media-related organizations are:

  • Investigative Reporters and Editors, a grassroots nonprofit organization dedicated to improving the quality of investigative reporting.
  • The Media Law Resource Center, a non-profit professional association for content providers in all media, and for their defense lawyers, providing a wide range of resources on media law and policy issues.
  • MuckRock, a journalism and government transparency non-profit that has helped thousands of requesters around the United States better file, share, and understand Freedom of Information requests.
  • Freedom of the Press Foundation, a non-profit organization that supports and defends public interest journalism focused on transparency and accountability.
  • The Reporters Committee for Freedom of the Press, an unincorporated nonprofit association whose attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists

The individual journalists include Matt Carroll, Meredith Broussard, Dhrumil Mehta, Cheryl Phillips, Dan Keating, Lucia Walinchus, and Zita Arocha.

By focusing on real-world uses of databases, amici show that there is no practical difference between accessing full records from a database and compiling a list of entries. Amici then point out that the content-index distinction has led to murky jurisprudence in the past and continuing to apply this distinction to databases would require arbitrary line-drawing and lead to absurd results. In the database context, almost any presentation of the data is a record that already exists, and agencies should be required to produce records accordingly.

The Cyberlaw Clinic is honored to have represented these amici and hopes the Ninth Circuit Court of Appeals will seriously consider their input. The brief was written by Clinical Instructor Mason Kortz, Clinical Instructional Fellow Kendra Albert, and Spring 2019 clinical students Alena Farber, Ariel Hoffman, and LeHeng Li.

This post originally appeared on the Cyberlaw Clinic’s blog on March 29, 2019. As of August 2019, the case is still pending.