Open Technology Fund and Board Members File Suit in Federal Court Against Trump Appointee for Unlawful Violation of Independence

Last updated: 2020-06-24T01:22:56.791Z
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WASHINGTON — The Open Technology Fund (OTF), an independent non-profit grantee of the US Agency for Global Media (USAGM), and members of the organization’s Board of Directors have filed a complaint in the District Court of the District of Columbia seeking injunctive relief to nullify recent attempts to dismiss OTF officers and directors. The move comes in response to the drastic actions taken last week by a new Trump Administration political appointee, Michael Pack.

Since OTF's inception in 2012, the organization has funded more than 400 open-source technology projects. Tools supported by OTF projects have enabled more than 2 billion people in over 60 countries around the world to more securely access the internet and circumvent censorship and repressive surveillance. This is especially true in highly repressive countries such as China, Iran, Cuba, Russia, Turkey and Venezuela. Notable projects incubated and supported by OTF include Signal, Tor, WireGuard, Let’s Encrypt, Lantern, and Psiphon.

Despite this remarkable success, and overwhelming bipartisan support, the organization was rocked last week by what is now being dubbed as the “Wednesday night massacre.” Shortly after Pack was confirmed by the Senate as the new CEO of USAGM, he tried to remove the leadership of Radio Free Asia, Radio Free Europe, Middle East Broadcast Networks, and the Office of Cuba Broadcasting (all USAGM organizations), and attempted to fire the leadership of OTF, including CEO Libby Liu and President Laura Cunningham. He also ordered an immediate freeze on contracting and personnel actions, essentially halting OTF’s operations. CEO Pack then attempted to dismiss the experienced diplomats and other political and foreign policy experts on OTF’s bipartisan Board of Directors and replace them with non-experts, while appointing himself the Chair of OTF’s Board.

These actions drew immediate ire throughout the internet freedom community and across both sides of the political aisle. Nonetheless, CEO Pack claimed his actions were made “pursuant to my authorities as CEO of the United States Agency for Global Media, including under 22 USC 6209(d) and your bylaws.” Yet he simultaneously noted, in a tacit admission of the weak legal ground upon which he stood, “In avoidance of doubt, I would expect that your new Board, of which I am Chair, will ratify this action upon my direction.”

Tuesday night’s complaint, available in full here, makes plain that CEO Pack’s actions are a fraud. Nothing in the law which he cites grants him the authority to dismiss the officers and directors at OTF. To the contrary, the law states OTF is independent - not a part of the federal government. As such, the grants it receives from USAGM are fully conditioned upon the proper maintenance of a “firewall” to ensure the organization remains independent, as required. Pursuant to OTF’s bylaws, only the Board itself can vote to remove its members or officers of the organization. According to 22 USC 6209(c), “nothing in this chapter or any other Act, or any action taken pursuant to this chapter or any other Act, may be construed to make such a consolidated grantee … or entity provided funding by the agency a Federal agency or instrumentality.” Under these circumstances, it is neither appropriate nor lawful for a federal agency to order the dismissal of OTF’s Board and leadership.

Critically, although it is funded by Congress through grants administered by USAGM, OTF is not a part of the federal government - nor are its employees. OTF was established - by design - as a private, non-profit organization with its own leadership and independent Board of Directors. The organization can only be effective in performing its essential work if it is rightly perceived by stakeholders to be independent. Political dissidents in Hong Kong or Tehran will simply not use OTF’s tools if they fear their information will somehow be leaked back to government agents. As noted in the complaint, “To ensure the integrity and credibility of this vital work, their independence from political interference is protected by a strict ‘firewall’ embodied in statutes, regulations, and binding contract provisions. Pack’s actions this past week constitute the most egregious breach of that firewall in history.”

OTF President Laura Cunningham noted: “The unprecedented actions of USAGM to act unilaterally without communication or prior arrangement with OTF has caused severe disruptions to the work of the organization, undermined trust in OTF-supported technologies, and jeopardized the lives of the billions of journalists, human rights defenders, and everyday citizens who rely on OTF technology worldwide.”

Accordingly, the complaint asks the District Court to grant the following relief:

  1. Declare that Mr. Pack lacks any legal authority to remove or appoint officers or directors of Open Technology Fund;
  2. Declare that any actions taken by Mr. Pack in excess of his legal authority with respect to Open Technology Fund are null and void;
  3. Declare that Mr. Packs attempted wholesale terminations of the officers and directors of Radio Free Europe, Radio Free Asia, and the Middle East Broadcasting Networks, and his actions to freeze grant funds, were unlawful and therefore null and void;
  4. Enjoin Mr. Pack, or any of his agents or subordinates, from taking any unlawful action to terminate officers or directors of Open Technology Fund, Radio Free Europe, Radio Free Asia, or the Middle East Broadcasting Networks, or freeze their grant funds;
  5. Award all other appropriate relief, including attorneys’ fees and costs.

Notably, OTF’s legal challenge builds upon the rising consensus across Washington and the world that CEO Pack’s reckless actions violated the law and must be reversed. Earlier in the day, Senator Robert Menendez (D-NJ), the ranking member of the Senate Foreign Relations Committee, called for the acting Inspector General of the State Department to investigate whether the attempted firings violated applicable rules of independence.

Regarding the action, OTF Board Member, and co-plaintiff, Ben Scott said: "OTF's success in promoting Internet Freedom around the world depends on the independence of the organization and the integrity of its work. This legal action makes crystal clear that efforts by the USAGM to undermine OTF are as unlawful as they are wrong-headed."

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