These dragnet searches violate the privacy of millions of Americans

Keyword warrants that let police indiscriminately sift through search engine databases are unconstitutional dragnets that target free speech, lack particularity and probable cause, and violate the privacy of countless innocent people, the Electronic Frontier Foundation (EFF) and other organizations argued in a brief filed today to the Supreme Court of Pennsylvania. 

Everyone deserves to search online without police looking over their shoulder, yet millions of innocent Americans’ privacy rights are at risk in Commonwealth v. Kurtz – only the second case of its kind to reach a state’s highest court. The brief filed by EFF, the National Association of Criminal Defense Lawyers (NACDL), and the Pennsylvania Association of Criminal Defense Lawyers (PACDL) challenges the constitutionality of a keyword search warrant issued by the police to Google. The case involves a massive invasion of Google users’ privacy, and unless the lower court’s ruling is overturned, it could be applied to any user using any search engine. 

“Keyword search warrants are totally incompatible with constitutional protections for privacy and freedom of speech and expression,” said EFF Surveillance Litigation Director Andrew Crocker. “All keyword warrants – which target our speech when we seek information on a search engine – have the potential to implicate innocent people who just happen to be searching for something an officer believes is somehow linked to a crime. Dragnet warrants that target speech simply have no place in a democracy.” 

Users have come to rely on search engines to routinely seek answers to sensitive or unflattering questions that they might never feel comfortable asking a human confidant. Google keeps detailed information on every search query it receives, however, resulting in a vast record of users’ most private and personal thoughts, opinions, and associations that police seek to access by merely demanding the identities of all users who searched for specific keywords. 

Because this data is so broad and detailed, keyword search warrants are especially concerning: Unlike typical warrants for electronic information, these do not target specific people or accounts. Instead, they require a provider to search its entire reserve of user data to identify any and all users or devices who searched for words or phrases specified by police. As in this case, the police generally have no identified suspects when they seek such a warrant; instead, the sole basis is the officer’s hunch that the perpetrator might have searched for something related to the crime.  

This violates the Pennsylvania Constitution’s Article I, Section 8 and the Fourth Amendment to the U.S. Constitution, EFF’s brief argued, both of which were inspired by 18th-century writs of assistance – general warrants that let police conduct exploratory rummaging through a person’s belongings. These keyword search warrants also are especially harmful because they target protected speech and the related right to receive information, the brief argued. 

“Keyword search warrants are digital dragnets giving the government permission to rummage through our most private information, and the Pennsylvania Supreme Court should find them unconstitutional,” said NACDL Fourth Amendment Center Litigation Director Michael Price. 

“Search engines are an indispensable tool for finding information on the Internet, and the ability to use them – and use them anonymously – is critical to a free society,” said Crocker. “If providers can be forced to disclose users’ search queries in response to a dragnet warrant, it will chill users from seeking out information about anything that police officers might conceivably choose as a searchable keyword.” 

For the brief: https://www.eff.org/document/commonwealth-v-kurtz-amicus-brief-pennsylvania-supreme-court-1-5-2024

For a similar case in Colorado: https://www.eff.org/deeplinks/2023/10/colorado-supreme-court-upholds-keyword-search-warrant 

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Every year, we encounter new, often ill-conceived, bills written by state, federal, and international regulators to tackle a broad set of digital topics ranging from child safety to artificial intelligence. These scattershot proposals to correct online harm are often based on censorship and news cycles. Instead of this chaotic approach that rarely leads to the passage of good laws, we propose another solution in a new report: Privacy First: A Better Way to Address Online Harms.

In this report, we outline how many of the internet’s ills have one thing in common: they’re based on the business model of widespread corporate surveillance online. Dismantling this system would not only be a huge step forward to our digital privacy, it would raise the floor for serious discussions about the internet’s future.

What would this comprehensive privacy law look like? We believe it must include these components:

• No online behavioral ads.
• Data minimization.
• Opt-in consent.
• User rights to access, port, correct, and delete information.
• No preemption of state laws.
• Strong enforcement with a private right to action.
• No pay-for-privacy schemes.
• No deceptive design.

A strong comprehensive data privacy law promotes privacy, free expression, and security. It can also help protect children, support journalism, protect access to health care, foster digital justice, limit private data collection to train generative AI, limit foreign government surveillance, and strengthen competition. These are all issues on which lawmakers are actively pushing legislation – both good and bad.

Comprehensive privacy legislation won’t fix everything. Children may still see things that they shouldn’t. New businesses will still have to struggle against the deep pockets of their established tech giant competitors. Governments will still have tools to surveil people directly. But with this one big step in favor of privacy, we can take a bite out of many of those problems, and foster a more humane, user-friendly technological future for everyone.

Download the report

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When PEN America and Meedan asked writers, journalists, and creators about their experiences reporting online abuse to social media platforms, we heard again and again, over the past three years, about the deep frustration, exasperation, and harm caused by the reporting mechanisms themselves:

“I do the reports because I don’t want to not report. That’s even worse. But it feels like shouting into a void. There’s no transparency or accountability.” Jaclyn Friedman, writer and founder, Women, Action & the Media¹

“Reporting is the only recourse that we have when abuse happens. It’s a form of accountability… but when people constantly feel like they are wasting their time, they are just going to stop reporting.” Azmina Dhrodia, expert on gender, technology and human rights and former senior policy manager, World Wide Web Foundation²

“The experience of using reporting systems produces further feelings of helplessness… Rather than giving people a sense of agency, it compounds the problem.” Claudia Lo, senior design and moderation researcher, Wikimedia³

Online abuse is a massive problem.⁴ According to a 2021 study from the Pew Research Center, nearly half of adults in the U.S. have personally experienced online harassment. The rate of severe harassment – including stalking and sexual harassment – has significantly increased in recent years.⁵

For journalists, writers, and creators who rely on having an online presence to make a living and make their voices heard, the situation is even worse – especially if they belong to groups already marginalized for their actual or perceived identity. In a 2020 global study of women journalists from UNESCO and the International Center for Journalists, 73 percent of respondents said they experienced online abuse. Twenty percent reported that they had been attacked or abused offline in connection with online abuse. Women journalists from diverse racial and ethnic groups cited their identity as the reason they were disproportionately targeted online.⁶ According to Amnesty International’s 2018 report, Toxic Twitter: A Toxic Place for Women, Black women were “84 percent more likely than white women to be mentioned in abusive or problematic tweets.”⁷

Being inundated with hateful slurs, death threats, sexual harassment, and doxing can have dire consequences. On an individual level, online abuse places an enormous strain on mental and physical health. On a systemic level, when creative and media professionals are targeted for what they write and create, it chills free expression and stifles press freedom, deterring participation in public discourse.⁸ Online abuse is often deployed to stifle dissent. Governments and political parties are increasingly using online attacks, alongside physical attacks and trumped-up legal charges, to intimidate and undermine critical voices, including those of journalists and writers.⁹

The technology companies that run social media platforms, where so much of online abuse plays out, are failing to protect and support their users. When the Pew Research Center asked people in the U.S. how well social media companies were doing in addressing online harassment on their platforms, nearly 80 percent said that companies were doing “an only fair or poor job.”¹⁰ According to a 2021 study of online hate and harassment conducted by the Anti-Defamation League and YouGov, 78 percent of Americans specifically want companies to make it easier to report hateful content and behavior, up from 67 percent in 2019.¹¹

Finding product and policy solutions that counter the negative impacts of online abuse without infringing on free expression is challenging, but it’s also doable—with time, resources, and will. In a 2021 report, No Excuse for Abuse, PEN America outlined a series of recommendations that social media platforms could enact to reduce risk, minimize exposure, facilitate response, and deter abusive behavior, while maintaining the space for free and open dialogue. In doing that research, it became clear that the mechanisms for reporting abusive and threatening content to social media platforms were deeply flawed.¹² In this follow-up report, we set out to understand how and why.

On most social media platforms, people can “report” to the company that a piece of content – or an entire account – is violating policies. When a user chooses to report abusive content or accounts, they typically initiate a “reporting flow,” a series of steps they follow to indicate how the content or account violates platform policies. In response, a platform may remove the reported content or account, use other moderation interventions (such as downranking content, issuing a warning, etc.), or take no action at all, depending on the company’s assessment of whether the reported content or account is violative.

For users, reporting content that violates platform policies is one of the primary means of defending themselves, protecting their community, and seeking accountability. For platforms, reporting is a critical part of the larger content moderation process.

To identify abusive content, social media companies use a combination of proactive detection via automation and human moderation and reactive detection via user reporting, which is then adjudicated by automated systems or human moderators. The pandemic accelerated platforms’ increasing reliance on automation, including the algorithmic detection of harmful language. While automated systems help companies operate at scale and lower costs, they are highly imperfect.¹³

Human moderators are better equipped to take the nuances of language, as well as cultural and sociopolitical context, into account. Relying on human moderation to detect abusive content, however, comes with its own challenges, including scalability, implicit bias, and fluency and cultural competency across languages. Moreover, many human moderators – the majority of whom are located in the Global South – are economically exploited and traumatized by the work.¹⁴

Because proactive detection of online abuse, both human and automated, is highly imperfect, reactive user reporting remains a critical part of the larger content moderation process. More effective user reporting, in turn, can also provide the data necessary to better train automated systems. The problem is that when reporting mechanisms do not work properly, that undermines the entire content moderation process, which significantly impedes the ability of social media companies to fulfill their duty of care to protect their users and facilitate the open exchange of ideas.

A poorly functioning moderation process threatens free expression in myriad ways. Content moderation interventions that remove or reduce the reach of user content can undermine free expression, especially when weaponized or abused.¹⁵ At the same time, harassing accounts that are allowed to operate with impunity can chill the expression of the individuals or communities they target.¹⁶

In our research, we found that reporting mechanisms on social media platforms are often profoundly confusing, time-consuming, frustrating, and disappointing. Users frequently do not understand how reporting actually works, including where they are in the process, what to expect after they submit a report, and who will see their report. Additionally, users often do not know if, or why, a decision has been reached regarding their report. They are consistently confused about how platforms define specific harmful tactics and therefore struggle to figure out if a piece of content is violative. Few reporting systems currently take into account coordinated or repeated harassment, leaving users with no choice but to report dozens or even hundreds of abusive comments and messages piecemeal.

On the one hand, the reporting process takes many steps and can feel unduly laborious; on the other, there is rarely the opportunity to provide context or explain why a user may find something abusive. Few platforms offer any kind of accessible or consistent documentation feature, which would allow users to save evidence of online abuse even if it has been deemed abusive and removed. And fewer still enable users to ask their allies for help with reporting, which makes it more difficult to reduce exposure to abuse.

When the reporting process is confusing, users make mistakes. When the reporting process does not leave any room for the addition of context, moderators may lack the information they need to decide whether content is violative. It’s a lose-lose situation – except perhaps for abusive trolls.

For this report, nonprofit organizations PEN America and Meedan joined forces to understand why reporting mechanisms on platforms are often so difficult and frustrating to use, and how they can be improved in concrete, actionable ways. Informed by interviews with nearly two dozen writers, journalists, creators, technologists, and civil society experts, as well as extensive analysis of existing reporting flows on major platforms (Facebook, Instagram, YouTube, Twitter, and TikTok), this report maps out concrete, actionable recommendations for how social media companies can make the reporting process more user-friendly, more effective, and less harmful.

While we discuss the policy implications of our research, our primary goal is to highlight how platform design fails to make existing policies effective in practice. We recognize that reporting mechanisms are only one aspect of content moderation, and changes to reporting mechanisms alone are not sufficient to mitigate the harms of online abuse. Comprehensive platform policies, consistent and transparent policy enforcement, and sophisticated user-centered features are central to more effectively addressing online abuse and protecting users. And yet reporting remains the first line of defense for millions of users worldwide facing online harassment. If social media platforms fail to revamp reporting, as well as put more holistic protections in place, then public discourse in online spaces will remain less inclusive, less equitable, and less free.

Read the full report

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In the absence of comprehensive federal privacy legislation in the United States, the targeted advertising industry, fueled by personal information harvested from our cell phone applications, has run roughshod over our privacy. Worse, the boundaries between corporate surveillance and government surveillance are eroding. Unless your data is fully encrypted or stored locally by you, the government often can get it from a communications or computing company.

Traditionally, that required a court order. But increasingly, the government just buys it from data brokers who bought it from the adtech industry.

An investigation from the Wall Street Journal identified a company called Near Intelligence that purchased data about individuals and their devices from brokers who usually sell to advertisers. The company had contracts with government contractors that passed this data along to federal military and intelligence agencies. The company says it purchased data on over a billion devices. The government, in turn, can buy access to geolocation data on all those devices, when generally they’d have to show probable cause and get a warrant to get that same data.

Many smartphone application developers, to make a quick buck, are all too eager to sell your data to the highest bidder – and that often includes the government. Courts should hold that the Fourth Amendment requires police to get a warrant before tracking a person this way, but unfortunately, this corporate-government surveillance partnership has mostly evaded judicial review.

With the click of a mouse, police can use such surveillance tools to see the devices of people who attended a protest, follow them home to where they sleep, and target them for more surveillance, harassment, and retribution. Police can also track people whose devices have been inside an immigration attorney’s office, a reproductive health clinic, or a mental health facility. Police could easily use this tool to watch a secret rendezvous between a journalist and their whistleblowing source. Not to mention that law enforcement officials have often abused surveillance technologies for malicious personal reasons.

This type of surveillance also makes people who live and work in heavily-policed areas more vulnerable to falling under police suspicion. If you happened to be next door to a pizza shop that got robbed, or took a coffee break near graffiti, police could easily see your device located near the crime and target you for more surveillance.

News about Near Intelligence comes just a year after an EFF investigation revealed Fog Data Science, a previously unknown company that provides state and local law enforcement with easy and often warrantless access to the precise and continuous geolocation of hundreds of millions of unsuspecting Americans, collected through their smartphone apps and then aggregated by shadowy data brokers.

In light of the Journal’s recent expose, Congress must close this databroker loophole once and for all. The Fourth Amendment is Not For Sale Act is bipartisan, common sense law that would ban the U.S. government from purchasing data it would otherwise need a warrant to acquire.  Moreover, with the invasive surveillance law Section 702 of the Foreign Intelligence Surveillance Act set to expire in December 2023, Congress has a chance to include a databroker limits in any bill that seeks to renew it.

Further, Congress and the states must enact comprehensive consumer data privacy legislation. If companies harvest less of our data, then there will be less data for the government to buy from those companies.

It’s up to us to keep agitating to prevent the government from continuing to buy information about us that it would otherwise need a warrant for.

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Author Michael Connelly spearheads drive to expand PEN America’s work combatting school sensorship. 23 other authors join effort

In an unprecedented mobilization to fight censorship, a group of blockbuster writers are banding together for the first time to accelerate PEN America’s on-the-ground campaign in Florida against runaway book bans and gag orders that limit what educators can teach and students can learn in public classrooms.Many of the authors are household names. Many have ties to Florida or have been banned there. Collectively, they have sold nearly 1.6 billion books globally. Read all of their bios here.

Authors Laurie Halse Anderson, David Baldacci, Brit Bennett, Richard Blanco, Judy Blume, Ruby Bridges, Lee Child, Suzanne Collins, Michael Connelly, Gillian Flynn, Amanda Gorman, Nikki Grimes, Daniel Handler, Khaled Hosseini, Casey McQuiston, David Levithan, Brad Meltzer, Todd Parr, James Patterson, Jodi Picoult, Kathy Reichs, Nora Roberts, Reshma Saujani and Mo Willems are raising their voices during Banned Books Week (Oct. 1-7) and equipping the premier literary and free expression organization to open a Florida center that will defend the freedom to read and learn in a state on the frontlines of the fight for free speech nationally.

The list includes novelists, memoirists, and poets who write across a wide range of genres for children and adults. With donations from these authors, PEN America will step up the campaign against book bans, both in the Sunshine State and across the country.

Over the summer, Michael Connelly, author of 38 novels with more than 85 million copies sold worldwide, and his wife, Linda McCaleb Connelly, spearheaded PEN America’s newest Florida effort with a commitment of $1 million. Other authors have joined, and together have contributed more than $3.6 million to date. PEN America plans to open a Florida center before the end of the year to host public events, wage campaigns and empower Florida citizens to defend their basic freedoms.

The Connellys – who spend half the year living in Florida and have long been advocates for students, readers, journalists, and other writers – viewed the rise in censorship in the state as an urgent call to action.

“What PEN America is doing in Florida is very important to us and our neighbors,” said Michael Connelly. “We have been astonished to see books ripped off the shelves and students forced into the middle of a fight they didn’t ask for or deserve. All of us, especially those of us who make our living in the literary world, are called upon to defend against book bans and legislation that suppresses new voices.”

Following a new wave of censorious legislation and policies, Florida overtook Texas during the last school year with more books banned in public school classrooms and libraries than any other state in the union, according to PEN America’s newly released data. Amid a 33% spike in book bans nationally, Florida now ranks first in the nation and accounts for more than 40% of all documented bans. While Florida is in the lead, its speech-constricting laws and policies have become a national template, helping to fuel a movement that has led to nearly 6,000 instances of book bans by PEN America’s count since 2021.

PEN America CEO Suzanne Nossel said, “Seeing some of America’s most beloved and avidly read authors step to the front of the fight against book bans is inspiring. These are writers, not politicians or activists. They provide comfort, entertainment and inspiration to billions of readers. While some have been banned themselves, others have stepped up because they know that anyone who has ever curled up with a book is exercising a right worth fighting for and a right that – astonishingly – is under threat right here in the United States. While the book banners’ campaign is national in scope, Florida has become the laboratory for censorship laws and the intimidation of teachers and librarians. It is extraordinary to witness a group of our nation’s favorite authors pick up their pens to draw a line in the sand.”

PEN America has been at the forefront of documenting and defending against this spreading censorship – unseen since the 1950s McCarthy-era Red Scare. Book banners have primarily targeted narratives about race, racism, gender and sexuality, many by Black and LGBTQ+ authors.

Last spring, PEN America partnered with Penguin Random House along with parents and students to file a groundbreaking federal lawsuit challenging book banning in Escambia County (Pensacola), Fla. As well, through its volunteer-led Miami-South Florida chapter (among ten in a national network) and its partnerships with state-based organizations, including the Florida Freedom To Read Project, PEN America has catalyzed public response to: (a) the passage of laws like the “Don’t Say Gay” and “Stop W.O.K.E” acts, (b) escalating book bans, and (c) the DeSantis Administration’s campaign to remake the public New College of Florida to be like Hillsdale College, a private Christian university.

Authors have taken on an inspiring role nationwide in PEN America’s advocacy against this threat – through media interviews, as plaintiffs in its lawsuit, by engaging their millions of readers and social media followers on the issue and contributing direct philanthropic support.

“PEN America understands that our freedom to read is more fundamental than short-sighted politicians drawing attention to themselves on social media,” said James Patterson, the master thriller and suspense novelist who always tops best-seller lists. “I applaud PEN America for having the courage to open an office here at the epicenter of so much of this cynical opportunism – my backyard, Florida.”

Judy Blume, who lives in Key West, has written books that have been on ban lists since the 1980s and her 1975 novel, Forever, was one of 80 banned this year in a Florida school district for dealing with sex. Said Blume, “It’s deja vu all over again, as Yogi Berra famously said. Only this time it’s worse. For me, that’s the rueful truth.”

Ruby Bridges, a legendary civil rights activist and author whose children’s books have been banned, joined this author activation noting, “My books are written to bring people together. Why would they be banned? But the real question is, why are we banning books at all? Surely, we are better than this.”

Mitchell Kaplan, the literary champion, longtime ally of PEN America’s Miami-South Florida chapter and owner of Books & Books, the Florida independent bookstore chain, said, “I can hardly recognize the state where I grew up.”

Speaking about the push in Florida to shut down the freedom to read he said, “I’m alarmed that elected officials have taken a dark turn to sow division and chaos in public schools by banning books and erasing themes and ideas children should read about and learn. Years ago, this would have been something we read about in the news, happening in an authoritarian country thousands of miles away. Now we’re witnesses to a home-grown campaign infecting Florida and other states to censor and trample all over our children’s education. With the support of these wonderful authors, we are determined to build on the work we are doing to mobilize people of conscience in Florida who believe in the freedom to read and learn.”

Nikki Grimes, the award winning author of books for children and young adults, has had her books banned on what she has described as difficult but important topics for young people to tackle. “On those days when the news deflates me, it means everything to know that PEN America is doing this hard work so that I can continue to focus on creating the best books I can for the readers I serve,” she said.

Read more quotes from the participating authors here.

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On the fifth anniversary of the murder of Saudi journalist Jamal Khashoggi, the Committee to Protect Journalists has joined 14 other press freedom and human rights groups in calling on the Biden administration to reverse its current policy on Saudi Arabia and to urge the Saudi authorities to stop detaining and targeting the country’s journalists. CPJ’s annual prison census documented 11 Saudi journalists in jail for their work as of December 1, 2022.

Read the full joint statement below

Five years have passed since the heinous murder of Saudi journalist Jamal Khashoggi at the country’s consulate in Istanbul on October 2, 2018, in an operation that US intelligence found to have been approved by Saudi Arabia’s Crown Prince Mohammed bin Salman (MBS). Despite campaign promises to hold Saudi Arabia accountable for the murder, the Biden administration has not only failed to support an international, independent and impartial investigation, it helped immeasurably in aiding MBS’s rehabilitation on the international stage. Tragically, the result has been the unprecedented worsening of government repression and abuses under the leadership of the crown prince.

We, the undersigned organizations, hoping to honor Jamal Khashoggi’s memory, call on the Biden administration to reverse its current policy and prioritize significant and genuine human rights improvements by the Saudi government. The Biden administration should not continue to look the other way as the relentless crackdown on human rights continues to escalate in Saudi Arabia. Such scrutiny is essential to achieving Saudi Arabia’s own Vision 2030 objective of “creating a vibrant society in which all citizens can thrive and pursue their passions.” It will also demonstrate to the world that the United States remains committed to upholding the UN Charter and international law, as reaffirmed in a recent joint statement with Gulf Cooperation Council member states.

These measures should include urging Saudi authorities to:

• Cease detention and targeting of journalists inside Saudi Arabia. There are currently at least 11 journalists still imprisoned in the country. This group includes Jordanian journalist Abdulrahman Farhana, sentenced to 19 years in prison by a Saudi court in August 2021, according to the Committee to Protect Journalists. Ahmed Ali Abdelkader, a Sudanese journalist, was given a four-year sentence in July 2021 for criticizing Saudi actions in Sudan and Yemen, on social media.
• End the crackdown on free expression and speech in Saudi Arabia and unconditionally release detainees in prison for expressing peaceful views. This must include Muhammad al-Ghamdi, recently sentenced to death for tweeting criticism of Saudi government policies to fewer than 10 followers. Other individuals who should be released include Salma al-Shehab, Salman Alodah, Fatima al-Shawarbi, Abdelrahman al-Sadhan, and many others. U.S. citizen Saad Almadi, jailed for tweets sent while in the United States, must also be permitted to travel.
• End growing transnational repression practices. The Saudi government increasingly crosses its borders in pursuing critics. Its tactics include abuse of international arrest warrants (as seen in the February 2023 extradition of activist Hassan al-Rabea to Saudi Arabia from Morocco); use of Saudi agents on U.S. soil to harass and surveil (a Saudi man was arrested in 2022 by the FBI for targeting one dissident); and the unjust detention of critics’ families (including Sarah and Omar Aljabri, arrested in March 2020, the children of former government official Saad Aljabri).
• End the criminalization of civic and political space. The government must end its crackdown on independent human rights groups and allow space for genuine civic and political engagement inside and outside the country, including individuals who put forth the People’s Vision of Reform that envisions a democratic state with liberties, rights, and elections. This must also include the release of human rights activists such as Mohamed al-Qahtani, who has been jailed for over a decade and forcibly disappeared for nearly a year following the expiry of his prison term due to his peaceful human rights work.

If the Biden administration does not work to secure significant commitments in line with the above recommendations, it would indicate that it has forsaken Jamal’s memory and his vision for a free, just, and democratic Saudi Arabia. The crown prince’s repressive practices and policies are a threat not only to people residing in Saudi Arabia, but to anyone who dares criticize him no matter where they reside, as illustrated by Jamal’s brutal murder.

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Offering a Forceful Defense of Literary Imagination and Freedom, the Report Calls for New Protocols to Prevent Online “Review Bombing”

In a new report, Booklash: Literary Freedom, Online Outrage, and the Language of Harm, PEN America warns that social media blowback and societal outrage are imposing new moral litmus tests on books and authors, chilling literary expression and fueling a dangerous trend of self-censorship that is shrinking writers’ creative freedom and imagination.

Offering a forceful defense of the freedom to imagine, write, and publish, PEN America, the premier free expression and writers organization, implores stakeholders across the literary community – including publishers, authors, institutions and readers – to be zealous guardians of literary freedom and to avoid giving in to pressure to pull books because of content that some consider offensive.

The report argues that book withdrawals in the face of criticism – though relatively rare — have ripple effects, shrinking the space for risk-taking in literature and circumscribing what future books will be proposed and signed. The report states. “As a society we need to be able to engage in free debate about books without resorting to denying readers the opportunity to read them and come to their own conclusions.”

In addition, the report rejects “an identity-essentialist approach to literature: that writers can only responsibly tell the stories that relate to their own identity and experiences.” Such an approach is incompatible with the freedom to imagine that is essential for literary creation, PEN America argues.

In an introduction to the report, PEN America President Ayad Akhtar wrote: “We believe that it is possible to move boldly forward for equity in publishing without disavowing individual books and applying new moral litmus tests to stanch ideas deemed offensive.”

Drawing from months of research and dozens of conversations in the literary and publishing community – including with authors whose book contracts were canceled and editors who responded to calls to withdraw books from publication – the report includes in-depth accounts of many of the most contentious literary controversies over the past eight years.

In the report, PEN America cautions publishers against giving in to newly-drawn lines that restrict the space for the writer’s prerogative to imagine and create literature: “It is imperative that the literary field chart a course that advances diversity and equity without making these values a cudgel against specific books or writers deemed to fall short in these areas.”

Among its recommendations, the report urges the literary review site Goodreads to implement new protocols to ensure reviewers have read the book in question before posting a review and to prevent tactics like “review-bombing,” the online practice of users giving negative reviews to harm sales of a book.

Akhtar, the playwright and novelist, said that as a literary organization that defends writers, PEN America’s leadership felt it was important to articulate some of the “more intangible consequences” of what is happening culturally within these literary conversations.

He said: “I hope that this report will give publishers, authors, and commentators new ways to think about what we should be doing to support a healthier literary culture. Questions about harm, stereotypes, and representation, are important – but they shouldn’t create an atmosphere where they become an excuse for suppression of speech.”

Clarisse Rosaz Shariyf, PEN America’s chief of literary programming, said: “As an organization that stands in support of writers and readers, we are concerned about a culture in which books are suppressed because they may cause offense.  This report is a call to action for the literary community writ large to renew its vow to defend the freedom to read.”

This report is PEN America’s latest in-depth examination of the publishing industry; its 2022 report Reading Between the Lines: Race, Equity, and Book Publishing, found deep and persistent obstacles to bringing more titles by authors of color to commercial success and exposed a broad range of systemic shortcomings in fostering a diverse and inclusive approach to publishing.

PEN America has also been at the forefront of documenting and defending against the unprecedented rise of school book bans that rob students of exemplary literary works and undermine the freedom to read as protected by the Constitution. The wave of book censorship nationwide is worse than anything seen since the McCarthy Red Scare era, with PEN America counting more than 4,000 book bans since the fall of 2021.

Last month, the American Library Association commemorated the 70th anniversary of the Freedom to Read Statement, an expansive vision of literary freedom drafted by librarians and publishers in 1953 during the Red Scare period, by re-releasing it with a set of new signatories, including PEN America and every living former president of the organization.

The Booklash report argues that the principles of the statement are as important as ever and urges the publishing industry to recommit to its  concepts.

The report also specifically addresses:

• Social media criticism of books judged to be problematic for reasons relating to racial or other forms of representation
• The rising tendency to look to an author’s identity as a test for what they are allowed to write
• Cases where an author’s estate has posthumously revised the author’s work to meet contemporary social standards
• When authors revise or withdraw their own work in response to criticism, including in cases where the book has not yet been published
• When publishers withdraw book contracts or published books in response to criticism of either the book or the author
• The rising contentions of publishing staff that publishing certain books and authors clashes with industry values

Laying out its positions on some of the most controversial issues in the literary world today, PEN America uses this report to:

• Explore and explain how new litmus tests over identity in literature can hurt the very writers they are intended to serve – such as LGBTQ+ writers or writers of color
• Challenge the notion that expanding diversity in publishing requires publishers to withdraw or disavow books from authors who write about communities not their own
• Warn that readers and reviewers who decry books as “harmful” or “dangerous” risk giving credence to the narratives of book banners
• Call on publishers to highlight how an expansive conception and protection of free expression is the bedrock for a more broadly free society.

PEN America concludes by calling for an industry-wide recommitment from publishers and literary institutions to the principles of the Freedom to Read Statement – and by offering specific advice to publishers on how to defend their books in the face of calls for withdrawal. As part of its call, PEN America uses this report to recommit itself to these principles, including through upcoming programming and events.

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Failure to pursue justice for slain reporters undermines freedom of the press

One year after Al-Jazeera Arabic correspondent Shireen Abu Akleh was fatally shot in the head while reporting on an Israeli military raid in the West Bank, a new report by the Committee to Protect Journalists exposes a pattern of lethal force by the Israel Defense Forces alongside inadequate responses that evade accountability.

Since 2001, CPJ has documented at least 20 journalist killings by the IDF. The vast majority – 18 – were Palestinian. No one has ever been charged or held accountable for these deaths.

“The killing of Shireen Abu Akleh and the failure of the army’s investigative process to hold anyone responsible is not a one-off event,” said Robert Mahoney, CPJ’s director of special projects and one of the report’s editors. “It is part of a pattern of response that seems designed to evade responsibility. Not one member of the IDF has been held accountable in the deaths of 20 journalists from Israeli military fire over the last 22 years.”

CPJ’s report, “Deadly Pattern,” finds that probes into journalist killings at the hands of the IDF follow a routine sequence. Israeli officials discount evidence and witness claims, often appearing to clear soldiers for the killings while inquiries are still in progress. The IDF’s procedure for examining military killings of civilians such as journalists is a black box, notes the report. There is no policy document describing the process in detail and the results of any probe are confidential. When probes do take place, the Israeli military often takes months or years to investigate killings and families of the mostly Palestinian journalists have little recourse inside Israel to pursue justice.

The report also finds that Israeli forces repeatedly fail to respect press insignia, sending a chilling message to journalists and media workers throughout the West Bank and Gaza, the Palestinian areas under Israeli military control where all 20 killings occurred. Like Abu Akleh, the majority of the 20 journalists killed – at least 13 – were clearly identified as members of the media or were inside vehicles with press insignia at the time of their deaths. For example, in 2008, Reuters camera operator Fadel Shana was wearing blue body armor marked “PRESS” while standing next to a vehicle with the words “TV” and “PRESS” when a tank fired a dart-scattering shell that pierced his chest and legs in multiple places, killing him.

“The degree to which Israel claims to investigate journalist killings depends largely on external pressure,” said Sherif Mansour, CPJ’s Middle East and North Africa program coordinator. “There are cursory probes into the deaths of journalists with foreign passports, but that is rarely the case for slain Palestinian reporters. Ultimately, none has seen any semblance of justice.”

Deaths are just one part of the story. Many journalists have been injured, and in 2021 the military bombed Gaza buildings that housed offices of more than a dozen local and international media outlets, including The Associated Press and Al-Jazeera.

CPJ sent multiple requests to the IDF’s press office to interview military prosecutors and officials, but the military refused to meet with CPJ for an on-the-record interview.

The IDF killing of journalists has had a chilling effect on reporters covering their operations, undermining press freedom and heightening safety concerns for Palestinian and foreign journalists. CPJ’s report includes recommendations to Israel, the United States, and the international community to implement actions to protect journalists, end impunity in the cases of killed journalists, and prevent future killings. This includes guaranteeing swift, independent, transparent, and effective investigations into the potentially unlawful killings of journalists. CPJ also calls for Israel to open criminal investigations into the cases of three murdered journalists: Shireen Abu Akleh (2022), Ahmed Abu Hussein (2018), and Yaser Murtaja (2018).

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PEN America CEO Suzanne Nossel testified that the rise in educational gag orders and “escalating battle for control over free expression in education should worry us all.”

Nossel testified before the House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Development in a hearing titled, “Diversity of Thought: Protecting Free Speech on College Campuses.”

Statement of Suzanne Nossel

Chief Executive Officer, PEN America

March 29, 2023

Chairman Owens, Ranking Member Wilson, and distinguished members of the Subcommittee and Committee, thank you for the opportunity to testify today.

I am a daughter of immigrants, a mother of a college freshman and high school sophomore, attorney by training, and proud American who has served in two presidential administrations. PEN America, which I have led for a decade, stands at the intersection of literature and human rights to protect free expression worldwide. We are a nonprofit, nonpartisan organization with an unwavering commitment to free speech, a principle that underpins democracy and a cause above politics.

We at PEN America have worked on issues related to campus speech since 2016. The university campus is the incubator of democratic citizenship and the breeding ground for leaders in every sector of society. If we don’t get free speech and open discourse right on campus, we won’t get it right in the media, the courts, or out on the streets.

Our work in this area grew from concerns that a rising generation was turning its back on the principles of free speech. We learned of lecturers canceled or shouted down. Faculty have been targeted by threats and harassment for things they have said, receiving tepid support and sometimes none at all.

Students often lack awareness of the First Amendment or the precepts of academic freedom, sometimes believing that the best answer to noxious ideas is to drown them out, or to call on university authorities to shut them down. At PEN America we argue that the essential drive to render American campuses more diverse, equitable, and inclusive need not — and must not — come at the expense of robust, uncompromising protections for free speech and academic freedom. I have written a book Dare to Speak: Defending Free Speech for All, which centers on 20 principles for how we can live together in our diverse, digitized, and divided society without curbing free speech.

A central insight of our work in this area is that an open campus must uphold the ability of all students to participate freely and fully. If some students, by virtue of their background, gender, race, nationality, religion, or political views feel hindered from speaking up in class or voicing their opinions, the marketplace of ideas suffers.

Sometimes calls to curtail or punish speech are borne out of a frustration that campuses or society at large have not done enough to address the lingering vestiges of racial, gender and other forms of exclusion. While such efforts to suppress speech are misguided, they cannot be effectively addressed without looking at what motivates them.

Since 2021, alongside these challenges we have confronted a new threat to open discourse on campus. We have documented proposed and enacted state legislation curtailing what can be taught and studied in college and university classrooms. There are seven laws across seven states that we classify as educational gag orders affecting higher education; we define educational gag orders as laws that explicitly limit what can be taught and studied on campus. As of March 16, there were an additional 24 higher education bills pending in 15 states across the country.

The wording of these gag orders is deliberately vague, casting a willful chill on a wide swath of speech as faculty and administrators struggle to understand where the lines are drawn.

Collectively, these bills are illiberal in their attempt to legislate that certain ideas and concepts are out of bounds. They are intended not to keep speech open, but to put universities on notice that they are being watched and will face the consequences if their decisions fall afoul of politics. Indeed, in pushing back against orthodoxies the proponents of these measures have embraced and surpassed the very tactics they claim to decry, putting the weight not only of social pressure, but of government power, behind efforts to repress certain viewpoints.

This year, we are also seeing a spate of alarming new tactics being introduced to curtail open discourse on campus. These include the takeover of the public New College of Florida by a group of out-of-state trustees and the advancement of HB 999 in Florida, which would abolish certain courses of study. Those who believe in the First Amendment understand that its essence lies in restricting the power of government to meddle in the marketplace of ideas not in inserting the heavy hand of the state to dictate what can and cannot be taught.

Escaping this escalating tit-for-tat battle of assaults on speech on U.S. campuses will demand leadership. University presidents need to insist and ensure that all viewpoints — left and right alike — get a fair hearing on campus. They need to speak up and resist intrusive legislation that micromanages curriculum and undercuts academic freedom. Efforts to foster diversity, equity and inclusion on campus should span the gamut of individual differences – racial, socio-economic, religious, ethnic, ideological, gender-based, political and more.

We also need to introduce the norms and ideals of free speech to all students and teach them how to uphold it whether in the lecture hall or while mounting a protest.

This escalating battle for control over free expression in education should worry us all. The greatest casualty in this battle may be neither progressive nor conservative ideas, but the principle of free speech itself.

Thank you for the opportunity to testify. I welcome your questions.

Read the full testimony for the record by Suzanne Nossel

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The Committee to Protect Journalists has welcomed President Joe Biden’s executive order restricting the U.S. government’s use of commercial spyware tools. The order, issued Monday, prohibits executive departments and agencies from using the spyware if they determine it could pose significant counterintelligence or security risks to the U.S. government or be used improperly by foreign agents.

“President Biden’s executive order limiting the United States’ use of commercial spyware is an important step in recognizing and mitigating the harm that these technologies can have on journalists and democratic institutions more broadly,” said CPJ U.S. and Canada Program Coordinator Katherine Jacobsen. “This order serves as an important reminder as this week’s Summit for Democracy begins that unfettered use of technology to surveil journalists is a threat to core democratic values in the U.S. and abroad.”

The global use of spyware has prompted what CPJ views as an existential crisis for journalism and the organization has been among those calling for moratoriums on its use.

In 2021, the European Union adopted similar regulations on the export of surveillance technologies. Also that year, the U.S. Department of Commerce imposed export controls on the Israel-based technology company NSO Group over its development of Pegasus spyware.

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