FTC Chair Lina Khan is pictured during a House hearing

FTC Chair Lina Khan and SEC Chairman Gary Gensler testify during a House hearing on May 18, 2022.

(Photo: Tom Williams/CQ-Roll Call, Inc. via Getty Images)

Free Press Advocates Say FTC Has No Business Probing Journalist Interactions With Twitter

"Anyone who cares about the free press should be concerned by the FTC's demand that Twitter identify journalists who have received information that might embarrass the administration," said one critic.

Press freedom defenders on Wednesday expressed outrage after it was revealed that the Federal Trade Commission, as part of its investigation into Twitter's data privacy practices, demanded that the social media giant "identify all journalists" given access to company records, including in relation to owner Elon Musk's dissemination of the so-called "Twitter Files" purporting to expose censorship on the platform.

"Anyone who cares about the free press should be concerned by the FTC's demand that Twitter identify journalists who have received information that might embarrass the [Biden] administration, regardless of what they think of Elon Musk or Twitter," Freedom of the Press Foundation (FPF) advocacy director Seth Stern said in a statement.

According to FPF: "Government-compelled identification of journalists is dangerous on its own and enables further surveillance of those identified. Administrations from both political parties have overreached to spy on journalists—especially journalists investigating those in power."

"The Department of Justice has adopted policies against surveilling journalists," the advocacy group noted, "but other agencies like the FTC have not."

The Wall Street Journalreported Tuesday that in addition to the names of journalists granted access to Twitter records, the FTC also sought internal communications related to Musk as well as information regarding layoffs, which the agency said could undermine the corporation's capacity to protect users, and the launch of the Twitter Blue subscription service.

FTC spokesperson Douglas Farrar told the newspaper that the agency is "conducting a rigorous investigation into Twitter's compliance with a consent order that came into effect long before Mr. Musk purchased the company."

Farrar explained Wednesday on social media that Twitter in 2011 "agreed to a 20-year consent order over its data security practices and how it uses your private information."

"In 2022, the FTC charged Twitter with violating the 2011 order for misusing personal information. The company then paid a $150 million penalty and entered a new consent order," he continued. "Besides the penalty, the FTC added further provisions to protect consumers' sensitive data. This order was issued in May of 2022," several months before Musk's acquisition of the company was finalized.

"The FTC should not have to violate the privacy of journalists to protect the privacy of Twitter users."

Farrar added that the 12 demand letters the FTC has sent to Twitter since Musk took over in late October "are nonpublic, but cherry-picked portions of some have recently been made public."

This happened after the Republican-led House Judiciary Committee's Select Subcommittee on the Weaponization of the Federal Government published excerpts of the letters in an interim staff report about the FTC's Twitter probe.

As part of its investigation, the FTC on December 13 "asked about Twitter's decision to give journalists access to internal company communications, a project Mr. Musk has dubbed the 'Twitter Files' and that he says sheds light on controversial decisions by previous management," the Journal reported.

According to the newspaper: "The agency asked Twitter to describe the 'nature of access granted each person' and how allowing that access 'is consistent with your privacy and information security obligations under the order.' It asked if Twitter conducted background checks on the journalists, and whether the journalists could access Twitter users' personal messages."

Journalist Matt Taibbi—whose December 2 thread on Twitter's 2020 decision to suppress the Hunter Biden laptop story and subsequent reporting have put him at the center of the "Twitter Files" saga—tweeted Tuesday: "Which journalists a company or its executives talks to is not remotely the government's business. This is an insane overreach."

In response, Matt Stoller of the American Economic Liberties Project, an anti-monopoly think tank, wrote that "the FTC is seeing whether Twitter is violating its consent decree on privacy."

Farrar doubled down on that claim Wednesday, writing: "FTC investigations are straightforward and nonpolitical. They are to ensure that companies are following the law, including protecting people's privacy. The consent order the FTC has with Twitter isn't about Musk's acquisition of the company or their content moderation policies. This isn't about free speech, it's about the FTC doing its job to protect Americans' privacy."

Stern, for his part, was unconvinced by Farrar and Stoller's attempts to justify the FTC's actions as an exercise in protecting consumers' data.

"The FTC," said Stern, "should not have to violate the privacy of journalists to protect the privacy of Twitter users."

"It's especially disturbing," he continued, "that the demand could enable future efforts to obtain the journalists' newsgathering materials."

The FTC's actions underscore why Americans of all political persuasions "should support passing the PRESS Act," Stern added. "It's the only way to ensure that all administrations, and all government agencies, are prohibited from surveilling or retaliating against journalists."

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