AAC 2019

Access & Accountability 2019: Accountability in the Trump Era

Friday, October 4

8:00 Breakfast & Registration

9:00 Welcome from Floyd Abrams

9:10 Newsgathering
Discussion of laws, policies and actions that obstruct the ability of journalists and others to ferret out the news, and potential litigation strategies and legislative responses to protect the right to gather the news. This panel will tackle the impact on newsgathering from the extraordinary growth of non-disclosure agreements in the private and public sectors, the growing use of text messaging and other ephemeral forms of communication, the expansion of the government’s pre-publication censorship regime, recent efforts to criminalize routine newsgathering techniques, and investigative limitations imposed by computer abuse laws.
Moderator: Lee Levine (Ballard Spahr)
Panelists: Alex Abdo (Knight Institute); RonNell Anderson Jones (Utah);
Ellen Gabler (NY Times); Alan Chen (U. Denver);
James McLaughlin (Washington Post)

10:30 Break

10:40 Law Enforcement Accountability
Discussion of the primary impediments to public oversight of local law enforcement agencies and the surveillance technologies they deploy and strategies to improve transparency. Topics to be taken up include proactive technology information disclosure, theories to compel access to CBP detention centers and other law enforcement sites, the sharing of photos among law enforcement agencies for facial recognition databases, public access to body cam footage, disclosure of surveillance applications and orders, and increased transparency for police disciplinary proceedings.
Moderator: Jonathan Manes (SUNY Buffalo)
Panelists: Catherine Crump (Berkeley); Craig Futterman (U. Chicago);
Rachel Harmon (U.Va); Wes Lowery (Washington Post).

12:00 Luncheon Discussion: FOIA— Boon or a Bane?
It is widely recognized that the Freedom of Information Act is broken. Congress has repeatedly amended FOIA to improve its operation, but the problems only seem to multiply as time moves on. This panel will engage the questions of whether FOIA is achieving its intended transparency goal, whether a FOIA fix is possible, and what is the best path forward to promote government transparency and accountability.
Moderator: David McCraw (NY Times)
Panelists: Seth Kreimer (U. Penn); Margaret Kwoka (U. Denver);
Jason Leopold (Buzzfeed); David Pozen (Columbia)

1:30 National Security and the Surveillance State
This panel will take up the consequences for transparency of the ongoing application of the Espionage Act to whistleblowers who provide information to the press, and concerns raised by the Act’s imminent application to Julian Assange. It will also address strategies to address accountability concerns presented by surveillance methods and technologies used on reporters and their sources, and litigation and legislative strategies to improve public access to the types of national security information needed for proper democratic oversight.
Moderator: Jameel Jaffer (Knight Institute)
Panelists: Oona Hathaway (Yale); Heidi Kitrosser (U. Minn); Robert Litt (Morrison Foerster); Betsy Reed (Intercept); Charlie Savage (NY Times)

2:50 Break

3:00 Algorithmic Transparency
Government decision-making is increasingly automated at both the federal and state level in such high stakes domains as criminal justice, law enforcement, housing, health care, employment, education, and elections. Algorithmic technologies influence individuals, populations, and national agendas, but most are obtained and operated with little oversight, limited accountability mechanisms, and minimal research into their impact. This panel will explore key issues contributing to the lack of accountability and transparency of algorithms used in government decision-making, and assess potential legal strategies to achieve the level of algorithmic access required for meaningful democratic oversight
Moderator: Jennifer Pinsof (MFIA)
Panelists: Vera Eidelman (ACLU); Lauren Kirchner (MarkUp); Jason Schultz (NYU); Rebecca Wexler (Berkeley)

4:20 Break

4:30 Checks, Balances and the Trump Administration
The current Administration has been criticized for using executive orders and administrative actions to dismantle regulatory regimes without apparent regard for existing law or established fact, and doing so in ways that dodge the checks and balances of congressional and judicial oversight. This panel will assess how constitutional structures and historic practices intended to promote Executive Branch accountability are performing in an era of expansive executive power, fake news, and the Trump management style. It will explore the role of the courts, Congress, and the press in promoting Executive Branch accountability—how they are performing, where reform is needed, and what it will take to achieve meaningful progress.
Moderator: Ian Bassian (Protect Democracy)
Panelists: Rebecca Bratspies (CUNY); Norman Orenstein (AEI);
John Podesta (Ctr. For Am. Progress)

5:45 End of day

Saturday, October 5

8:45 Overview of Day’s Objectives

9:00 Keynote Address: “The grim impact of judicial secrecy,” Dan Levine (Reuters)
Report on the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in the federal courts and the impact of these practices on public health and safety.

9:30 Breakout Sessions: Action Steps to Improve Judicial Records Access
1. Clinic litigation projects. This session will feature a nuts and bolts discussion of strategies that can be pursued by law school clinics to bring First Amendment considerations into the calculus for sealing discovery in civil litigation, improve procedures for sealing court files, and enforce the constitutional right of access to court records.
Discussants: Dustin Benham (Texas Tech); Cort Kenney (Cornell),
Francesca Procaccini (MFIA), Jennifer Nelson (RCFP);
Riana Pfefferkorn (CIS, Stanford)
2. Research, legislative and policy projects for the non-clinician. Developing a practicum, writing policy papers, amicus opportunities, and other means for non-clinical faculty to improve judicial transparency and accountability.
Discussants:Hannah Bloch-Wehba (Drexell); Alan Chen (U. Denver);
Patrick Kabat (Cleveland); Heidi Kitrosser (U. Minn)

10:45 Coffee Break

11:00 Fixing FOIA
Deep dive into what effective FOIA reform might look like and role clinics might play in achieving it. Discussion will include litigation strategies, fact development, and legislative solutions to bring about meaningful reform and improved government transparency.
Moderator: John Langford (Protect Democracy)
Panelists: Grace Cheng (Thomson Reuters); Meenu Krishnan (Knight Institute); Adam Marshall (RCFP); Michael Morisy (Muck Rock); Anne Weissman (CREW)

12:15 Luncheon Presentation: Success Stories
Students and faculty from laws school clinics will present matters in which they succeeded in promoting accountability using theories or strategies that warrant replication or address widespread problems that would benefit from broader attention.
Moderator: Charlie Crain (MFIA)
Panelists: TBD

1:45 Local Journalism and the Free Expression Law Network (FELN)
Presentation on the launch of Free Expression Legal Network, its current activities and steps to promote the services of this national network to local journalists and news organizations without access to legal resources.
Moderators: Bruce Brown (RCFP), Josh Moore (RCFP)

2:30 Open FELN Steering Committee meeting to follow the close of the conference

This conference is made possible by the generous support of the John S. and James L. Knight Foundation, Democracy Fund, Legal Clinics Fund.