However, Aaron Mackey, free speech and transparency litigation director at the Electronic Frontier Foundation, told local press outlets that the lawsuit “clearly violates [Goodwolf’s] First Amendment rights to make sure that the public understands and is informed on this very significant privacy breach that is the result of what sounds like the city’s own inaction or inability to properly secure its data. Rather than thank this individual for coming forward and actually explaining to the public that this is a significant problem, the city has resulted to basically violating his First Amendment rights and claiming that what he’s done is some sort of illegal act.”
One of the nation’s leading First Amendment experts, Bob Corn-Revere, now chief counsel for the Foundation for Individual Rights and Expression, agrees with Mackey, calling the initial gag order a classic case of prior restraint, which courts always disfavor. “This gag order is all-encompassing,” he tells CSO. “It prohibits accessing, disclosing, and possessing anything involving this data breach. And it seems like that’s an awfully broad restriction for someone who’s simply trying to report on a matter that the city appears not to want to publicize.”
The city attorney’s office responded to this criticism by pointing to the second agreement, the preliminary injunction, that Connor signed. “Mr. Goodwolf and the City signed an agreement on a preliminary injunction last week that protects sensitive data exposed in the cyber intrusion from being disseminated publicly while also allowing him to maintain a dialogue with the City regarding the breach. Like the temporary restraining order formerly in place, this new agreement has zero impact on Goodwolf’s ability to discuss the extent of the cyber intrusion or even describe what kinds of data were exposed, including to members of the media.”
However, while Corn-Revere thinks the preliminary injunction is better, he believes it still raises serious First Amendment issues. “This is certainly better than the blanket prior restraint that existed before,” he says. “It makes an attempt to be more narrowly tailored. But it is still troubling that it gives the city prior review and veto power over anything he wants to report publicly.”