Court Tells Trumpian Head Of US Agency For Global Media That He Can't Fire People From The Open Tech Fund (At Least For Now)

from the keep-your-hands-off dept

So, this is interesting. Last month we wrote about how Trump had appointed Michael Pack (a protege of Steve Bannon) to head up the US Agency for Global Media, which controls the various independent US overseas broadcasting operations: Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and Middle East Broadcasting. USAGM also oversees the Open Technology Fund, which is basically a government agency funding a ton of really important open source tools for getting around internet censorship and surveillance. OTF may sound like a misfit compared to the broadcasting operations, but it was spun out of Radio Free Asia, so its connection to USAGM is sort of a legacy one.

The story making the rounds was that Pack wished to turn all of the broadcasting operations into a sort of state-sponsored Breitbart, basically destroying their reputations. His first order of business was to essentially fire the heads of all of those organizations. Meanwhile, the backstory on the OTF side is that a bunch of wealthy Republican donors are pushing for OTF money to go towards a pair of sketchy closed source VPN products that actual security experts say are highly questionable.

In response to this, OTF folks sued Pack and now the DC Circuit appeals court has issued an injunction telling Pack he can't fire folks at OTF and that those who were in their roles prior to Pack's moves to fire them should remain in their roles for now:

ORDERED that the motion for injunction pending appeal be granted. The government is hereby enjoined from taking any action to remove or replace any officers or directors of the Open Technology Fund (“OTF”) during the pendency of this expedited appeal. The officers and directors of OTF that were in those roles prior to the government’s actions on June 17, 2020, shall continue in their normal course throughout the pendency of this appeal.

As the court notes, OTF has shown a likelihood of success, and that it does not appear that Pack has the authority to remove OTF staff:

Initially, appellants have demonstrated a likelihood of success on the merits. At this juncture, it appears likely that the district court correctly concluded that 22 U.S.C. § 6209(d) does not grant the Chief Executive Officer of the United States Agency for Global Media, Michael Pack, with the authority to remove and replace members of OTF’s board. OTF is not a broadcaster, is not mentioned in § 6209(d), and is not sufficiently similar to the broadcast entities expressly listed in § 6209(d) to fit within the statutory text. As for the government’s argument that the bylaws authorize such intervention by Mr. Pack, they appear at this juncture only to reference the exercise of statutory authority, which does not seem to include control of OTF’s board or operations.

If you're wondering, 22 USC 6209(d) says that the "officers and directors" of the various broadcast sections "serve at the pleasure of and may be named by the Chief Executive Officer of the Board." But, here, the court is saying that since OTF is different, it's not covered by that section. Frankly, this does feel like a strained reading of the law. The law specifically says:

Officers and directors of RFE/RL Inc., Radio Free Asia, and the Middle East Broadcasting Networks or any organization that is established through the consolidation of such entities, or authorized under this chapter, shall serve at the pleasure of and may be named by the Chief Executive Officer of the Board.

Since OTF came out of Radio Free Asia, I can actually understand the argument in the other direction, that Pack has authority to remove officers and directors, even if I don't like it. Still, the court went the other way, and I'm happy with that result.

The court further notes that the injunction is necessary because of the irreparable harm that may result if Pack is actually allowed to insert his own people at OTF:

Appellants have also demonstrated irreparable harm because the government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety.... Further, absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist.

So, I'm at least cautiously optimistic about this result, though I'm not sure I agree with the logic behind it. The ruling will be almost certainly be appealed, so it may go the other way eventually, but at least there's a temporary breather and OTF remains protected for now.

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Filed Under: injunction, michael pack, otf, usagm
Companies: open technology fund, otf


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  • icon
    Koby (profile), 21 Jul 2020 @ 12:42pm

    What's Behind It

    So, I'm at least cautiously optimistic about this result, though I'm not sure I agree with the logic behind it.

    The logic is "Judicial Activism".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jul 2020 @ 1:06pm

      Re: What's Behind It

      Yup. And the judge's logic might be "hopefully these clowns will be gone by the time the appeal gets processed."

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jul 2020 @ 1:12pm

      Re: What's Behind It

      Koby,

      Do you suport "qualified immunity"? Because that is far more "judicial activism" than this verdict. Here the law is ambiguous, so the judge's ruling is plausibly somewhat consistent with the law, and there is very little doubt that what Trump's boy is doing is against the intent of the framers of the relevant legislation. In the case of "qualified immunity" there is no ambiguity. IT DOES NOT EXIST IN THE STATUTES. It is a complete judicial fabrication, to a far greater degree than this ruling.

      Funny thing, A2-ers and "literalists" seem to have no problem with judicial activism when they agree with the results...

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 21 Jul 2020 @ 2:02pm

      Re: What's Behind It

      The logic is "Judicial Activism".

      I don't think that's accurate. As noted below, there is a perfectly reasonable reading of the law that says otherwise. And there's no reason why you'd expect to see "judicial activism" here.

      Honestly, the whole term "judicial activism" is thrown away way too much, often by very ignorant people who just don't like the results of certain cases.

      reply to this | link to this | view in chronology ]

      • identicon
        Baron von Robber, 21 Jul 2020 @ 2:07pm

        Re: Re: What's Behind It

        I think it's a substitute for 'fake news' when there is no real or rational objection.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 21 Jul 2020 @ 7:37pm

          “Judicial activism” refers to supposedly liberal judges making rulings that conservatives don’t like. If a conservative judge makes a ruling that liberals don’t like, it’s “the courts working as intended”.

          Or, at least, that’s how I understand it from years of conservatives throwing around the term whenever courts rule in favor of queer people and whatnot.

          reply to this | link to this | view in chronology ]

  • icon
    Aaron Walkhouse (profile), 21 Jul 2020 @ 1:47pm

    The diference between "spun off" and "consolidation"…

    reply to this | link to this | view in chronology ]

  • icon
    Aaron Walkhouse (profile), 21 Jul 2020 @ 1:59pm

    The diference between "spun off" and "consolidation"…

    …is partly what the judge is looking at.
    These two actions are opposites.

    OTF was not formed by consolidating two or more of the broadcasters, thus is not covered by the chapter;
    because it names and covers broadcasting grantees.

    OTF fell out from under that chapter when it spun off
    and was also not a broadcaster when it was created.

    reply to this | link to this | view in chronology ]

  • identicon
    Qwertygiy, 21 Jul 2020 @ 2:17pm

    Kudos, but maybe needn't worry

    Sometimes I read articles that make me question the author's objectivity about the difference between "what the law/data really says" and "what I believe is right".

    Not here at TechDirt specifically -- it's an everywhere problem. The more partisan, the more problematic.

    It's very refreshing to see that difference pointed out explicitly and reasonably. I wish it was more common.

    But Mike, I think you might be needlessly concerned, depending on what the technical definition of "consolidation" is here.

    According to Wikipedia: "Consolidation is the practice, in business, of legally combining two or more organizations into a single new one. Upon consolidation, the original organizations cease to exist and are supplanted by a new entity."

    OTF was spun out of Radio Free Asia, not as a combination, but a creation of an outright new entity. Radio Free Asia still exists, without any serious changes as far as I can tell. No other organizations were combined or destroyed in the creation of OTF.

    There might be a different legal definition of "consolidation" at play, but under the common definition, it doesn't look like it applies. I think the intent there was to cover their bases if the RFA was merged with MEBN into a single entity responsible for global broadcasts, instead of two regional entities.

    The question, then, becomes whether the "authorized under this chapter" phrase applies to the OTF, because the OTF has received a grant from the USAGM as an independent charity. I'm not invested enough to investigate that far, I'm afraid, but I wouldn't be confident that it would apply, especially with multiple judges (who I am 100% confident understand the applicable laws and regulations better than layman Qwerty ever will) already issuing rulings against it.

    reply to this | link to this | view in chronology ]

  • identicon
    JustSomeGuy, 21 Jul 2020 @ 9:59pm

    Merits for injunction

    Even if it's true that "OTF came out of Radio Free Asia", was that as part of a consolidation? You could effectively argue in a court of law (or at least convince a judge to issue an injunction based on the possibility you could argue this in a court of law) that "consolidation" requires two or more things to come together. If OTF just broke off from RFA, that's hardly a consolidation :-)

    reply to this | link to this | view in chronology ]


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