However, Aaron Mackey, director of free speech and transparency litigation at the Electronic Frontier Foundation, told reporters that the case is “a clear violation. [Goodwolf’s] First Amendment rights to ensure that the public understands and knows about this very important privacy violation that is the result of what appears to be the city’s own inaction or inability to adequately protect its data. Instead of thanking this person for coming out and explaining to the public that this is a serious problem, the city has led them to violate their First Amendment rights and say what they did is some kind of illegal act.”
One of the nation’s leading First Amendment experts, Bob Corn-Revere, now senior counsel for the Foundation for Individual Rights and Expression, agrees with Mackey, calling the first gag order a classic case of prior restraint, which the courts often dislike. “This gag order covers everything,” he told CSO. “It prohibits access, disclosure, and possession of anything involving this data breach. And that seems like an awfully wide margin for someone trying to report on an issue that the city doesn’t seem to want to publicize.”
The city attorney’s office responded to the criticism by pointing to a second agreement, the first order, that Connor signed. “Mr. Goodwolf and the City signed a preliminary injunction last week that protects sensitive information revealed in the hack from public distribution while allowing him to continue discussions with the City about the breach. Like the temporary restraining order that was in place, this new agreement has no significant impact on Goodwolf’s ability to discuss the extent of Internet access or to explain what types of data have been disclosed, including to members of the media.”
However, while Corn-Revere thinks the original order is better, he believes it still raises serious First Amendment issues. “This is definitely better than the previous barriers that existed before,” he said. “Make efforts to gradually improve. But it remains a concern that it gives the city prior review and veto power over anything it wants to publicly report. “
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