D.C. Circuit Court of Appeals Affirms Open Technology Fund’s Board of Directors; Grants Injunction Halting Attempts at Political Takeover of Independent Non-Profit (Press Release)

Last updated: 2020-07-21T22:55:57.532Z
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WASHINGTON -- In a unanimous ruling Tuesday morning, the D.C. Circuit Court of Appeals granted the Open Technology Fund’s (OTF) motion for injunction pending appeal in its lawsuit challenging new U.S. Agency for Global Media (USAGM) CEO Michael Pack’s attempted purge of the non-profit’s Board of Directors and key officers. The ruling, a significant win for the independent organization which has been in turmoil since Pack’s attempt at a hostile political takeover, enjoins the government from “taking any action to remove or replace any officers or directors” during the pendency of the expedited appeal. Pursuant to the Court’s order, the officers and directors of OTF who were in those roles as of June 17, the date at which Pack first attempted to unilaterally dismantle the organization, “shall continue in their normal course throughout the pendency of this appeal.” OTF President and acting CEO Laura Cunningham will remain in her role without disruption.

A key leader in the global fight for internet freedom, OTF supports technologies that help citizens across the world communicate securely, circumvent censorship, and combat authoritarianism. In finding that the organization had satisfied “the stringent requirements for an injunction pending appeal,” the Court noted “the government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety.” With imminent and ongoing irreparable harm occurring, the Court declared “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.” In so ruling, the Court essentially disagreed with the government’s strained statutory interpretation and reading of OTF’s bylaws, finding OTF and its Board of Directors had established a likelihood of success on the merits. Under the expedited briefing schedule for the case, briefing will conclude in late August with a decision on the TRO and Preliminary Injunction expected by early September.

Moving forward, OTF and its Board of Directors are looking to assuage the concerns of its project partners and the internet freedom community, which have been rattled by Pack’s reckless actions and utter disregard for the organization’s foundational principles. Said Board Member and appellant Ben Scott, “The Court’s decision validates what we’re fighting for. Although the battle is not yet won, this is a major victory. Independence and trust are two of the key pillars upon which OTF stands. With this injunction in hand, we will now be able to act swiftly to prevent further reputational harm and begin the critical task of rebuilding trust with the internet freedom community and our strategic project partners.”

Keeping President and acting CEO Cunningham in charge will go a long way towards achieving these goals. Cunningham, who was made acting CEO by the Board in June upon the resignation of OTF’s inaugural CEO, Libby Liu, has long enjoyed strong bipartisan support due to her exceptional track record of overseeing OTF's strategic development, long-term planning, and day-to-day operations. Prior to joining the organization, Cunningham had over a decade of experience working to advance global Internet freedom, most recently as the Senior Advisor for Internet Freedom in the U.S. State Department’s Bureau of Democracy, Human Rights, and Labor. Such qualifications stand in stark contrast to Pack’s proposed pick to lead OTF, James M. Miles, a former employment lawyer with no relevant technical qualifications or internet freedom experience whatsoever.

Said Cunningham, “OTF's mission to advance internet freedom is essential to protecting human rights and promoting democratic values abroad. Our success is predicated on the expertise of our staff, the support of our community, and the trust of our users. Today's decision has provided much needed clarity and stability for OTF and the billions of users around the world who rely on our tools. While the fight is not yet over, this decision empowers OTF to continue our critical work to provide those living under authoritarian regimes with the technologies and support they need to safely access the internet free from repressive censorship and surveillance.”

Tuesday’s unanimous decision from a panel of judges appointed by both parties stands as a clear rebuke to government overreach in the private sector - denying a political appointee the right to run roughshod over an independent organization and its operational bylaws. The ruling also comes on the heels of another major development in the defense of OTF. On Monday, the Attorney General of the District of Columbia, Karl A. Racine, filed a lawsuit in D.C. Superior Court against Pack alleging Pack had illegally replaced the organization’s Board of Directors. The arguments of the complaint dovetail with those made by OTF and seek to reinstall OTF’s expert, bipartisan, and independent Board of Directors.

Across the country and throughout the world, support for OTF continues to build. Over two billion people now rely on tools supported by this remarkable bipartisan success story. In Washington, the matter has moved beyond current political divisions, with key leaders on both sides of the aisle stepping up to strongly criticize Pack’s dangerous moves and demand accountability. At the same time, the campaign to #SaveInternetFreedom has also worked to galvanize the online community. Thousands of individuals and over 500 organizations, including Mozilla, GitHub, Wikimedia, and Human Rights Watch have now signed on to a letter urging Congress take action to protect the organization. More information about the campaign and this rapidly evolving issue is available here.