The Apache Software Foundation Operations Summary: August – October 2017 (Apache Software Foundation Blogs)

FOUNDATION OPERATIONS SUMMARY

Second Quarter, Fiscal Year 2018 (August - October 2017)

"As a large Cloud Infrastructure company, LeaseWeb relies on a number of Open Source technologies to deliver our services. The activities of The Apache Software Foundation –and in our case, the Apache CloudStack project in particular– allow us to keep bringing innovative, quality services to the market. We are very proud to be a sponsor!"
--Robert van der Meulen, Technical Evangelist, LeaseWeb (ASF Platinum Sponsor)


> President's Statement:
 Our steady growth continues, with 6 new Top-Level Projects this quarter. Fiscally, we remain on track for FY18, with expenses under control and income coming in on budget. Notable in this quarter was the Foundation's coordinated response to the Equifax data breach, which was ultimately determined to be caused by Equifax's failure to install patches provided for Apache® Struts™ exploit. This effort involved the Marketing and Publicity, Struts PMC, and ASF Security teams; as well as and a board member (Chris Mattmann) who participated in same-day broadcast media interviews.

Other highlights:

  • Conferences is increasingly looking to participate/co-locate with existing and lower cost events;
  • Trademarks continues to show a steady increase is questions, answers, and merchandise;
  • Infrastructure continued to expand the "self service" toolset, allowing authorized committers to perform operations that previously required infrastructure staff; and 
  • Marketing and Publicity led the response to the Equifax data breach.

> Conferences and Events: In May of this year, as mentioned in our last report, we ran ApacheCon North America in Miami. This was the final event produced under our agreement with The Linux Foundation. At a meeting in Miami, and in the time since then, we have been considering how we will run the event going forward, and have investigated a number of possible avenues. In this report, I discuss two of the ways that the Apache Software Foundation will be doing events in the coming year.

  • Participating in existing events: As you know, there are many hundreds of events every year, and some of these events have substantial overlap with various Apache projects, or groups of Apache projects. It makes a lot of sense to participate in those events directly. To this end, we have reached out to a number of organizations that produce events, and requested an Apache track. We’ll set a theme for that track, based on the emphasis of the particular event, and curate the content that will be presented there. We'll try, in each case, to also provide an "Apache Way" talk, so that these audiences can learn more about how Apache operates. The first three events that fall into this category are LinuxCon China, Open Source Summit North America, and Open Source Summit Europe, produced by the Linux Foundation. These events may be found at https://www.lfasiallc.com/linuxcon-containercon-cloudopen-china , http://events.linuxfoundation.org/events/open-source-summit-north-america and http://events.linuxfoundation.org/events/open-source-summit-europe respectively, and the CFP for each event is now open, with an Apache category in each. The emphasis for these events is "Apache: Tomorrow's Technology Today", and focuses on incubating, or recently graduated, projects at Apache. We are also attempting to participate more fully in events that focus on a particular one of our projects, such as MesosCon, Spark Summit, and so on.
  • Colocating with existing events: We are currently in talks with Berlin Buzzwords and FOSS Backstage - https://berlinbuzzwords.de/ - about running ApacheCon Europe colocated with their 2018 event, the week of June 10th, in Berlin. The overlap in our communities and our subject areas makes this a great fit, and we hope it will result in a cost savings for both events, and cross-pollination between the project communities. Look for announcements as soon as we have something firmly planned.
  • Producing lower cost events: We are also working with the people that produce Flock - the Fedora user conference https://flocktofedora.org/ - about doing an event in that style for ApacheCon North America. We are currently hunting for a date, and should have an announcement soon. The Apache community has long asked for an event which is lower cost, possibly located at a University campus, without the frills of a major convention. This makes the event more accessible to student attendees, but also poses scheduling challenges.
  • Sponsoring and Participating in Apache Events: If you are interested in sponsoring an upcoming Apache event, follow @ApacheCon on Twitter for announcements, calls for papers, and calls for sponsorship, over the coming months. We will be looking for sponsors and partners in each of the above categories.

If you have any questions or comments about our event strategy, please contact Rich Bowen, VP Conferences, at rbowen@apache.org 


> Community Development
: During this quarter our main focus was to promote an Apache presence at existing conferences with a booth or presentation content. In early September we were invited to present a 3 day track and a keynote at the Solutions Hamburg conference. This is an established conference that has approximately 5000 attendees. It was a good opportunity to reach a new audience and inform them about Apache and its projects. Our 3 day Apache track was presented in a combination of English and German and consisted of a Developer-Centric day, a DevOps-Centric day and a Foundation-Centric day. The most popular talks were related to Micro-Services and Open Source Licensing.

The Open Source Summit in Prague during October featured several Apache related presentations including a keynote and a mix of other technical and community related content. We also had the opportunity to present the results of our Apache Committers Diversity Survey as part of the Diversity Empowerment Summit. During the conference we were also able to record some attendee interviews for our podcast channel FeatherCast. Community Development ran the Apache booth at MesosCon EU which was co-located as part of the Open Source Summit. Feedback from attendees was very positive and showed a keen interest in learning more about other Apache projects as well as the Foundation itself.

Another task this quarter has been the preparation of marketing materials that can be used at events to help promote the role and mission of the ASF. An information brochure has been developed and translated into several languages. The brochure is currently available in English, Catalan, French, Italian, German, Spanish, Russian and Japanese. Also marketing related was the discussion about the introduction of Apache Community Business Cards. The idea is to have an Apache style business card that could be given out to people. This would be very useful for people who are at an event representing their Apache role or project or for volunteers at the ASF booth that want to give their out their contact information to someone they have been speaking to. Feedback to this has been extremely positive and we have will be promoting the use of community business cards to committers and projects.

Our mailing list traffic has increased this quarter as a result of several interesting discussions and the re-vitalisation of our task and issue tracker.


> Committers and Contributions:
 Over the past quarter, 1,647 contributors committed 47,831 changes that amount to 16,483,455 lines of code across Apache projects. The top 5 contributors during this timeframe are: Daniel Gruno (661 commits), Oliver Lietz (572 commits), Jian He (558 commits), Claus Ibsen (540 commits), and Varun Saxena (491 commits).

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All individuals who are granted write access to the Apache repositories must submit an Individual Contributor License Agreement (ICLA). Corporations that have assigned employees to work on Apache projects as part of an employment agreement may sign a Corporate CLA (CCLA) for contributing intellectual property via the corporation. Individuals or corporations donating a body of existing software or documentation to one of the Apache projects need to execute a formal Software Grant Agreement (SGA) with the ASF. 

During Q2 FY2018, the ASF Secretary processed 203 ICLAs, 13 CCLAs, and 4 Software Grants. Apache committer activity can be seen at http://status.apache.org/#commits

> Marketing and Publicity: Over the ASF's 18 year history, marketing and publicity activities have focused on raising awareness of the Foundation's collective successes that include highlighting milestones with Apache projects, communities, and events.

This quarter presented unprecedented levels of crisis communications activity in response to the Equifax data breach. Our all-volunteer technical and executive teams must be lauded for their extraordinary efforts in helping us respond to the media surge by identifying spokespeople in a very short timeframe, and preparing official statements across time zones and geographic locations, with special thanks to those who worked throughout their holiday vacations. We would like to recognize those who helped escalate and troubleshoot the issue internally, notably René Gielen, Łucasz Lenart, Mark Cox, and Mark Thomas, who contributed to countless editorial and interview preparation cycles, and Chris Mattmann, who participated in broadcast media interviews with primary television networks. We also worked with ASF legal counsel to draft our official response to the US House Committee's panel hearing. 

We issued 9 press releases during this timeframe, as well as one Foundation statement. They include:

  • MEDIA ALERT: The Apache Software Foundation Confirms Equifax Data Breach Due to Failure to Install Patches Provided for Apache® Struts™ Exploit https://s.apache.org/7bip
  • Response From The Apache® Software Foundation To Questions From US House Committee On Energy And Commerce Regarding Equifax Data Breach https://s.apache.org/rjmv
  • Foundation Statement: Apache Is Open. https://s.apache.org/PIRA

In total this quarter, we handled 92 media queries and appeared in 32,777 news articles. 


> Brand Management: 
The fall quarter in the Northern Hemisphere brings a regular uptick in requests and questions, which continues to require effort to provide timely and complete answers to questioners, especially outside parties. We've also seen a large uptick in requests to create non-computer merchandise (shirts, giveaways, etc.) using Apache brands. Most of these requests are a good way to help promote awareness of Apache projects and their contributors, and are well in line with our policy: https://www.apache.org/foundation/marks/merchandise

While a few Apache project PMCs continue to actively monitor uses of their brand and raise issues appropriately, the rapid growth in popular projects, both in the Big Data space and elsewhere, continues to be an issue with our capacity to provide knowledgeable and timely responses to questions.  We will be investigating new ways to invest in our ability to provide the branding and trademark services that our many Apache projects deserve.

All of the ASF's education and policies around trademark law for Open Source as well as brand management are published online, and we urge project participants and software vendors alike to review and ask us questions about them - please review our complete site map: http://www.apache.org/foundation/marks/resources

On the registration front, we continue to work with counsel to process renewals and registrations for projects.  While most are straightforward, some are complex, and require a significant amount of both our limited volunteer officer time as well as our counsel's time.

As Apache projects power more of the Internet every day, we look to the companies that profit from Apache software products to fully respect Apache brands. We very much appreciate the companies that pass on their **completed** trademark registrations along with the codebases they donate to the Apache Incubator. Having existing registrations makes managing trademarks much simpler for the ASF.

While many companies continue to give credit to our volunteer communities, sadly some companies continue to take advantage of our non-profit work by unfairly co-opting Apache project brands or by interfering with Apache project governance.

Reviewing and correcting these mis-uses is an ongoing effort for the ASF Board, the Brand Management Committee, and all Apache projects.

Please contact the Apache Brand Management team http://www.apache.org/foundation/marks/contact with your questions or suggestions!


> Legal Affairs:
 The Apache Software Foundation (ASF) Legal Affairs team works diligently with our pro-bono legal counsel and answers legal questions, and addresses policy issues regarding license compatibility for The Apache Software Foundation.

In the last quarter, the Legal Affairs team worked with several ASF communities concerned about the use of Facebook's React.js web framework and its inclusion in Apache projects. After a detailed analysis and decision, the committee forbade the use of React within Apache projects under the Facebook BSD+Patents license. This also applied to other software licensed under BSD+Patents. After the September Apache Board meeting, Facebook decided to relicense the React.js software from BSD+Patents to the MIT license. This re-enabled the use of React.js within Apache projects.

The traditional legal questions surrounding license guidance on software included in Apache products continue to come in and to be answered in a timely fashion. In the last quarter, the committee has also helped requestors:

  • Clarify how software grants should be accepted from external companies donating software to the ASF.
  • Identify whether importing code version control system (VCS) history from external entities that may include category-X software should be handled.
  • Understand the implications of downstream service providers that redistribute Apache Software under different licenses. 
  • Decide on the inclusion of public test files in repositories and whether it should be considered "fair use".
  • Use externally licensed design software to construct an Apache project's website.

The committee is a Board committee and reports directly Apache Board of Directors. We are eager to meet and serve the needs of our projects, in collaboration with our pro-bono counsel.

> Infrastructure: Infrastructure has been busy with its continued program of decommissioning our hardware, and moving services onto Cloud-provided hardware and VMs. Over time, this has provided marked increases in our reliability and service to the Foundation's projects.

During this past quarter, we upgraded the Jenkins build master and added many more build nodes. The service is used by very many projects, with a great variety of needs. It is a challenge to keep pace, but the team has done well in this regard.

As in previous quarters, we have been moving more projects over to the GitHub-based set of tools. This program has been successful, and the Foundation's communities have been taking advantage of the offer. 

Much of our work over the quarter has been behind-the-scenes -- managing our remaining hardware, dealing with service issues, updating our mail archive systems, and other tasks. However, in August, we did roll out a new user-facing tool for projects to directly perform many service requests which used to require a Jira ticket.


> Financial Statement:

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> Fundraising:
 The ASF Fundraising team would like to welcome Assembla, Blog Starter, Mobile Slots and Wise Buyer to the Apache Family.

Over this past quarter we have been creating our Directed Sponsorship program working with sponsors to meet and recognize the specific needs of the foundation and our projects.  We'll officially launch this in Q4 2017. 

We'll also be increasing our sponsorship rates starting in January for the first time in our 18 year history!

As ever, thank you to our Sponsors http://apache.org/foundation/thanks . Your donations are tax-deductible to the extent permitted by law.

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Report prepared by Sally Khudairi, Vice President Marketing & Publicity, with contributions by Sam Ruby, ASF President; Rich Bowen, Vice President Conferences; Sharan Foga, Vice President Community Development; Chris Mattmann, Vice President Legal Affairs; Shane Curcuru, Vice President Brand Management; Greg Stein, ASF Infrastructure Administrator; Tom Pappas, ASF Member and Vice President, Finance & Accounting at Virtual, Inc.; and Kevin McGrail, Vice President Fundraising.

For more information, subscribe to the announce@apache.org mailing list and visit http://www.apache.org/, the ASF Blog at http://blogs.apache.org/, the @TheASF on Twitter, and https://www.linkedin.com/company/the-apache-software-foundation.

(c) The Apache Software Foundation 2017. 


House Intelligence Committee’s NSA Surveillance Bill Includes New Threats and Old (Electronic Frontier Foundation)

Thrown last-minute into a torrent of competing legislation, a new bill meant to expand the NSA’s broad surveillance powers is the most recent threat to American privacy. It increases who is subject to surveillance, allows warrantless search of American communications, expands how collected data can be used, and treats constitutional protections as voluntary.

The bill must be stopped immediately. There is little time: despite the bill’s evening release yesterday, November 29, a committee is scheduled to markup the bill tomorrow, December 1.

The bill is called the FISA Amendments Reauthorization Act of 2017, and it was introduced by Rep. Nunes (R-CA), the Chair of the House Permanent Select Committee on Intelligence. It shares the same name as another bill introduced in the Senate in October.

Both bills are attempts to reauthorize Section 702 of the FISA Amendments Act, a powerful surveillance authority that allows the NSA to target and collect communications of non-U.S. persons living outside the United States. Section 702 predictably causes the incidental collection of American communications that are swept up during foreign intelligence surveillance, too.

These are some of the most glaring problems with this House bill.

New Potential Surveillance Targets

The Nunes bill expands the statutory terms “foreign power” and “agent of a foreign power”—both of which can be approved for NSA surveillance—to include a broad set of cyber-related activities. These activities include efforts to impair the “confidentiality, integrity, or availability of computers,” so long as those activities threaten the national defense or security of the United States.

But, according to the bill, surveillance can be approved for individuals not actually acting on behalf of a foreign power. Instead, those individuals must simply either knowingly aid or abet another person who is performing “international malicious cyber activity.”

This expansion of potential surveillance targets would extend not just to the NSA’s Section 702 surveillance, but also to all other kinds of foreign intelligence gathering. In this regard, far from reforming the federal government’s surveillance activities, the Nunes bill would significantly expand them.                                            

An Optional “Fix” to the Backdoor Search Loophole

Under Section 702, the NSA targets foreign individuals located outside the United States. Predictably, communications written and sent by Americans are also swept up in that collection. Those communications are then stored in a massive database that can be searched by other intelligence agencies, including the FBI and CIA. When those agencies search the data—even when it belongs to U.S. persons—they do not obtain a warrant.

These searches are called “backdoor” searches because they avoid the constitutional warrant requirement provided to U.S. persons by the Fourth Amendment.

While some of the other pending Section 702 reauthorization bills have proposed warrant requirements on backdoor searches of Americans’ communications, the Nunes bill gives the government the option whether or not to seek a warrant before reading these communications.

From the bill: “the Federal Bureau of Investigation may apply for an order of the [Foreign Intelligence Surveillance Court]” to approve access to such communications.

Constitutional rights are guaranteed, not optional.

Other Problems

Borrowing from its Senate-side sibling, the Nunes bill provides guidance on how to restart “about” collection, an invasive form of NSA surveillance that the agency ended earlier this year. Also, in defining “about” collection, the bill includes language that suggests the NSA can target “a facility, place, premises or property” for surveillance. This could mean that the NSA has the authority to target entire buildings, houses, or data centers populated by U.S. persons or their communications.

To learn more about what’s wrong with the Nunes bill, check out the opposition letter that EFF joined, along with dozens of other groups.

What Now?

Your voice is needed immediately. Rep. Nunes’ FISA Amendments Reauthorization Act of 2017 will be sent to markup by the House Permanent Select Committee on Intelligence tomorrow, on December 1. That is a remarkably short time for this process.

Call and contact your representatives today to stop this bill. Tell them it is unacceptable.

Posted in Uncategorized Tagged

When Tweets Are Governmental Business, Officials Don’t Get to Pick and Choose Who Gets To Receive, Comment On, And Reply to Them. That Goes For the President, Too (Electronic Frontier Foundation)

We’ve taken a stand for the First Amendment rights of individuals to receive and comment on social media posts from governmental officials and agencies. We’ve received a lot of good questions about why we believe that public servants—mayors, sheriffs, senators, even President Donald Trump—can’t block people whose views they dislike on Twitter without violating those persons’ free speech rights. Some question why citizens have a right to receive an official’s private Twitter account—@realdonaldtrump, for example. Others point out that Twitter isn’t a government forum with an obligation to allow users access to Trump’s messages, and others say users can still use workarounds to see the tweets of those who have blocked them. 

We’re taking a deep dive into the First Amendment here to explain our thinking and our reading of the law that supports our position. As you read, bear this in mind: the First Amendment doesn’t just protect your right to speak your mind. It also protects your right to receive, read, hear, see, and obtain information and ideas.

We filed a “friend of the court” brief in a lawsuit brought by the Knight First Amendment Institute and several Twitter users who have been blocked by President Trump from the @realdonaldtrump account. The president has admitted in the lawsuit that he blocked them because he objected to the viewpoints they expressed in replying to his tweets or in their own tweets. The lawsuit names President Trump, acting White House communications director Hope Hicks, White House press secretary Sarah Huckabee Sanders, and Daniel Scavino, White House deputy director of social media, as defendants. The case is Knight First Amendment Institute v. Trump

The government was not allowed to pick and choose who gets to receive official statements in the predigital age, and that’s still true in the digital age when public servants are increasingly relying on social media to communicate with the public

Although that case is specifically about President Trump’s Twitter feed, we see this as a much broader issue. We frequently receive reports from community activists and other social media users who were blocked from commenting on an agency’s Facebook page, or prevented from contributing to a community discussion prompted by an officials’ tweet, or have faced similar barriers to participation in public debate. We receive reports about how governmental officials manipulate social media comments to exclude opposing views to create the impression that hotly contested policies are not contested at all. And we realize, in seeing how agencies use social media to quickly disseminate emergency information during the recent spate of natural disasters, that the ability to receive such messages can be a matter of life and death.

The main focus of our brief was thus to detail for the court how governments all across the country and at every level—city, county, state, and federal—use social media platforms like Twitter, Facebook, and Instagram to communicate with the public about the business of government. These same platforms allow members of the public to communicate back to them and with each other. Governmental use of social media is commonplace and pervasive, and lawmakers view social media as vital to their work.

As we wrote in the brief: 

 In a survey of members of Congress and their staff, the Congressional Management Foundation found that 76% of respondents felt that social media enabled more meaningful interactions with constituents; 70% found that social media made them more accountable to their constituents; and 71% said that constituent comments directed to the representative on social media would influence an undecided lawmaker. Congressional Management Foundation, #SocialCongress2015, (2015)

     . . . . 

 State legislatures also extend public debate in their chambers to social media forums so that they are more visible by the public, specifically their constituents. In New York, debates over funding and employee salaries between the legislature and the governor’s office took place on Twitter. In Maryland, legislators debated the benefits of state legislation versus county regulations. And in Georgia, Representatives engaged in heated debate over the removal of confederate monuments.

We also provided examples of how during the hurricanes in Houston, Florida, and Puerto Rico, and the firestorms in Sonoma and Napa, officials used social media to quickly disseminate evacuation orders, safe travel routes, and forecasts to the public.

When elected officials choose to give speeches in a park, hold town hall meetings in a school stadium, or tweet out safety instructions to flood victims, the public’s First Amendment rights to receive those messages are triggered

You have a right to receive and read government communications sent via social media

When governmental officials and agencies choose a particular technique or technology to communicate with the public about governmental affairs—programs, policies, services, opinions, and safety measures—they have endowed the public with First Amendment rights to receive those messages. And this right is infringed when government denies access to these messages because it disagrees with someone’s viewpoints.

The principal of having First Amendment rights to receive government communications has nothing to do with Twitter or Facebook. The medium of communication, whether it’s online, television, radio, print, or bullhorn—isn’t the issue. When elected officials choose to give speeches in a park, hold town hall meetings in a school stadium, stand on a street corner giving safety instructions to flood victims, or debate each other on Twitter, the public’s First Amendment rights to receive those messages are triggered.

Prior to social media, officials couldn’t block their critics from receiving official governmental communications. When the president could only use radio and television to communicate with the public, he could not compel broadcasters to exclude certain neighborhoods from access to the broadcasts because residents in that area had protested against him. If a mayor delivered an official proclamation in a park, be it public or private, he could not have guards check each listener against a list of people who had written a letter to the editor criticizing them, and block letter writers from the event. In the digital age, the White House can’t block access to a press release on its website from certain ISP addresses because they belong to people who had criticized the president.

There’s a well-developed body of law supporting these First Amendment rights that arose in the pre-social media context and logically applies to social media as well. Before social media, most individuals received official governmental communications through the news media. Newspapers would receive and republish press releases and send reporters to attend and report on press conferences. TV and radio news outlets would do the same, and also broadcast video or audio from such events. The Supreme Court has called this the press’s “surrogate” role—that is, the press standing in for the populace-at-large that cannot attend such events in person or receive communications directly. When officials or agencies tried to block media outlets from covering official events, which were otherwise generally open to the press, the news media would challenge those blocks in court and most commonly get favorable results. So, for example, the Mayor of Honolulu was not permitted to exclude a reporter, whom the mayor found was “irresponsible, inaccurate, biased, and malicious” in his reporting, from an otherwise open press conference. And a district attorney could not require reporters from a certain newspaper to make appointments to interview officials, while he made them available without appointments to all other media. And two mayoral campaigns were not permitted to exclude ABC from their election night rallies that were open to other news media. These are just a few examples where courts found that officials could not make it more difficult for disfavored news media to get official information than other news media.

This law must apply to governmental communications through social media, in which messages go directly to the public and news media surrogates are not needed. Agencies and officials rely on social media to communicate with the public, and can’t pick and choose who gets to receive their messages, like they couldn’t pick and choose which news media can cover their press conferences. The fact that social media makes it really easy for a governmental official tweeting about governmental business to block a critic, doesn’t make it constitutional to do so. 

The fact that social media makes it really easy for a government official tweeting about government business  to block a critic, doesn’t make it constitutional to do so

We think this only makes sense. Public officials must not have the ability to block individuals whose viewpoints they dislike from receiving evacuation orders, or make it more difficult for them to view public conversations about how government operates, how policies are made, and what services are offered. That’s exactly the kind of viewpoint discrimination the First Amendment forbids.

 You have a right to comment in government’s social media posts

Blocking infringes First Amendment rights in another way as well­—by preventing an individual from adding to the public conversation, replying to or commenting upon an officials’ social media post, and preventing them from communicating with governmental officials directly by way of tagging.

Officials at all levels of government, like the mayors of Boston and Cleveland, use social media to hold “virtual town halls,” creating a space for the public to comment on specific projects or public affairs in general. A tweet from a governmental official can lead to a discussion among constituents debating the merits of a policy announcement. Anyone can easily see the same in the comments posted to agency Facebook pages. Social media sites in this way have become important places for democratic engagement and debate. We cited these and other examples in our brief to show that those who are blocked are excluded from speaking in these discussions.

In creating social media accounts with these communication features, like a Facebook page with a comments section, or a Twitter account that permits tagging and replies, the government endows the public with First Amendment rights to speak in these forums.

The First Amendment forbids viewpoint-based speech restrictions like those that result from blocking. The legal doctrine that applies here is the same one that is used to determine the government’s ability to regulate speech in government-controlled places or programs—the Forum Doctrine. 

Essentially, government-controlled forums for speech are divided into three categories: public forums which are created or historically used (like parks or streets) for the purpose of allowing private speakers to freely converse; non-public forums in which some private speaking is occasionally permitted even though the forum is not generally open for private speakers; and non-forums, more commonly known as “government speech,” because there are in actuality no private speakers at all; the government is the only speaker even though the government sometimes enlists or employs private people to speak for it. 

The president’s tweets are official statements—as his press secretary said in June and Justice Department lawyers told a judge on Nov. 14–and the public has a First Amendment right to receive them

Think of a bulletin board in a public library. The board that’s open to anyone to post anything—help-wanted ads, books to trade, meetings, etc.—is akin to a public forum. A bulletin board that’s mostly for the library’s own messages—hours of operations, library events, librarian recommendations—but the library occasionally, in its discretion, allows posting of some private messages, is a non-public forum. The last board is one that’s only for the library’s messages. That’s a non-forum. (There’s also a category that’s in between public and non-public forums: limited public forums. In limited public forums, the government opens the forum only for a specific category of content, for example, a library bulletin board reserved only for private messages about book groups. Limited public forums operate like public forums when the speech is of specified subject matter, but operate like non-public forums with respect to all other content.)

The level of control over speech the government may exercise varies with the forum:

     • Generally, in public forums, the government may not limit the content or viewpoint of private speech. It may only reasonably limit the time, place, and manner of private speech in a way that preserves alternative methods for private speech. So, in our library example, the library could generally limit the size of all notes posted and the length of time they can remain on the board. But it could not block a notice about a dance party or one that criticized the library for not having longer hours. In limited public forums, the government can enforce its subject matter limitation, as long as reasonable in light of the purposes of the forum, but cannot discriminate against viewpoints regarding that subject matter—so it could limit the board to reading recommendations, but it could not exclude recommendations it disagrees with;

     • In non-public forums, the government may limit the content of permissible private speech, but may not prohibit speech because it disagrees with the viewpoints expressed. So even if it occasionally, but not as a rule, allows an individual to post a book recommendation, it can’t deny an individual the right to post a recommendation it disagrees with;

     • And in the non-forum, the government can limit both content and viewpoint. Everything that’s posted is the library’s own speech, including any private speech the government may adopt and endorse as its own.

Exactly which kind of forum (or non-forum) is created by a governmental social media account depends on the particular way the government operates it. An official could allow individuals to post comments on an agency Facebook page about anything. This will likely be a public forum. The official could open up the comments only about a specific agency proposal. This would be a limited public forum. An agency could as a rule exclude comments, making only the occasional exception—that’s a non-public forum. When an agency that makes all the comments itself, that’s government speech—the non-forum.

From what we have seen, social media accounts commonly function as public forums where anyone can speak—like a gathering spot in a park, or a street corner where a crowd has formed. As we wrote in the brief: 

 It is clear then that in practice, social media platforms like Twitter that allow for the general public to comment upon governmental posts, or communicate directly with officials, agencies, or to otherwise participate in a publicly viewable debate, function like the paradigmatic speakers’ corner in a public park. See Perry, 460 U.S. at 45 (identifying streets and parks as “quintessential public forums” for “assembly, communicating thoughts between citizens, and discussing public questions”). Indeed, governmental social media accounts probably host these functions more than parks and streets currently do. As the Supreme Court recognized just last term, “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1977), and social media in particular.” Packingham, 137 S. Ct. at 1735 (included citation abbreviated) (explaining that a denial of access to social media was a significant abridgement of First Amendment rights given modern civic and social communication).

In Knight First Amendment Institute v. Trump, we agree with the plaintiffs that @realdonaldtrump is operated like a public forum. The account permits tagging and replies and the reply feed and tagging functions are generally open to all. At any hour of the day or night you can view replies to the tweets that are full of praise or deeply critical.  Viewpoint discrimination in such public forums plainly violates the First Amendment.

But, importantly, because the president admits to viewpoint discrimination, it doesn’t really matter if his Twitter account is a public or non-public forum. Viewpoint discrimination is only tolerated in non-forums, where the government is the only speaker. Clearly that’s not the case for @therealdonaldtrump.

But Twitter is a private platform that maintains some ability to block users itself. How can an official like Trump be restricted by the First Amendment from blocking people when Twitter itself can shut out users?  

It’s the president’s (and other officials’) use of Twitter that is subject to the First Amendment, not Twitter itself. So even if the social media platforms themselves make their own rules about who gets an account and what kind of speech is allowed, public agencies and officials can't use the tools those platforms provide users to block followers on the basis of viewpoint. 

Courts have ruled in similar contexts that it's unconstitutional for the government to use communication platforms, even private ones,  for government business in ways that censor speech and prevents it from reaching the public.

In one such case, a theatrical production company asked to use a privately-owned auditorium in Chattanooga under long-term lease with the city to present the musical "Hair," a controversial play that featured nudity and obscene language. The Supreme Court ruled that the city's decision to reject the theater company's request violated the First Amendment. It didn’t matter that the theater owner retained some control over the use of the theater. The city could not use the exclusionary power granted to it under the lease in an unconstitutional way.

In another case, television reporters from one network were barred, under threat of arrest, from covering live the post-election activities of candidates running for mayor of New York City. The venues for these events were privately owned and operated. Nevertheless, a federal appeals court ruled that once the press is generally invited, "there is a dedication of those premises to public communications use." The court rejected the notion that the candidates could decide to exclude one network over others, saying "the danger would be that those of the media who are in opposition or who the candidate thinks are not treating him fairly would be excluded." 

In both these cases, as here with Twitter, the venues and platforms used by government to communicate official business were private, with their own rules and operations. When officials use them for official business, they can’t under the First Amendment limit or block access to these spaces on the basis of viewpoint.

This rule must apply whether the space is physical or digital. 

But @realdonaldtrump is his personal account! Shouldn’t these rules only apply to the official @POTUS account?

We heard a few comments like this. To us, the important thing is that the platform, whether through an official or personal account, is being used to conduct the government’s business. The president’s tweets are official statements—as his press secretary said in June and Justice Department lawyers told a judge on Nov. 14–and the public has a First Amendment right to receive them.

We’ve taken a similar position in other situations where private accounts were used to conduct government business. 

For example, we have argued that governmental officials emails that are sent or received as part of the official’s governmental duties are public records, even if the official uses a private email account. As we pointed out in our brief, courts that have considered the issue have agreed.

Does this mean I can't block anyone?

A non-governmental actor can block anyone they want without violating the First Amendment. The First Amendment only restricts the government’s ability to limit speech in this context.

But how are anyone’s rights violated if users can view the president’s tweets even if they are blocked from getting them in their own feeds?

It's unconstitutional for the government to make it more difficult to receive information or speak. Users can’t be required to find workarounds to exercise their fundamental civil liberties.

The government was not allowed to pick and choose who gets to receive official statements in the predigital age, and that’s still true in the digital age when public servants are increasingly relying on social media to communicate with the public. That’s why we asked the court to recognize that government officials, even the president, who use the power of social media to create a forum for individuals to communicate with him and to each other, must respect the public’s First Amendment right to receive and comment on, whether negatively or positively, their statements. 

 

 

 

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