U.S. appeals court blocks Trump appointee Michael Pack’s changes to Open Technology Fund, a U.S. internet freedom group

Pack had fired the technology group’s top officials and bipartisan board since being confirmed June 4 as chief executive of the U.S. Agency for Global Media, which oversees Voice of America and four U.S. government-funded news outlets: the Open Technology Fund, Radio Free Europe, Radio Free Asia and Middle East Broadcasting Networks.

Seven U.S. senators, including Marco Rubio (R-Fla.) and Lindsey O. Graham (R-S.C.), wrote Pack expressing “deep concern” about the staff cuts he has ordered. Republican House members have also aired misgivings, and four existing board members, including two former U.S. ambassadors, filed suit to halt the changes.

A lower court said earlier in the case that international broadcasting sponsored by the United States for nearly 80 years has served as a “trusted and authoritative global news source” and model of journalistic excellence that has helped to undermine and topple some of history’s most oppressive regimes.

“The defendant, Michael Pack — is accused of putting this legacy at serious risk,” the lower court said.

In Tuesday’s order, U.S. Appeals Court judges David S. Tatel, Thomas B. Griffith and Patricia A. Millett ruled that it appeared Pack did not have statutory authority to appoint or control the fund’s board members or operations.

In staying Pack’s changes pending a “highly expedited” appeal, the judges said existing board members who filed suit showed that “the government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety.”

The court said the fund also would face “an increasing risk that its decision-making will be taken over by the government,” undermining its reputation and effectiveness.

The Justice Department declined to comment. Spokesmen for the U.S. Agency for Global Media did not immediately respond to a request for comment.

In lobbying for Pack’s confirmation, Trump and the White House portrayed Voice of America as an out-of-control news organization that has distributed “propaganda” favorable to regimes in China and Iran — a claim vigorously disputed by VOA. Pack’s team in news statements has defended some changes, citing “obstructionism” that held up his nomination, “bias and partisanship” and unspecified but “known mismanagement and scandals that have plagued the agency for decades.”

Begun as a Radio Free Asia pilot project in 2012, the Open Technology Fund has grown into an independent nonprofit grantee of the Agency for Global Media, incorporated last year and appropriated $20 million by Congress.

The group has funded programs in 60 countries with more than 2 billion people to allow secure and uncensored access to U.S. information sources and the broader Internet — through tools such as the encrypted communications app Signal and the anonymous Web-accessing network Tor — despite authoritarian government controls. It has also worked to protect journalists, sources and consumers from digital attack and aided researchers and technology developers.

In an interview, plaintiffs’ attorney Deepak Gupta said: “We’re thrilled that the court recognized today that the federal government does not have the power to take over this independent, nonprofit organization. This is critically important because many of the people who rely on Open Technology Fund’s work are activists and journalists in repressive regimes — in places like Tehran and Hong Kong — and they can’t afford to lose that support while this case proceeds.”

Pack’s critics warned that activists and technology developers who work with the fund take great risks by revealing their identities to it, making it essential that the group remain independent of the U.S. government in perception and reality. The suit alleged that Pack’s aggressive moves to obtain physical access to and control of the fund’s office has caused some to question their security and “the potential for [their] data to be obtained by a hostile actor.”

Howell found that if Pack’s actions turn out to be misguided, diminishing the U.S. global presence and strengthening totalitarian governments, accountability for the changes at the media agencies rests “at the ballot box.”

The appeals court’s decision came one day after D.C. Attorney General Karl A. Racine (D) brought a separate lawsuit in D.C. Superior Court under his office’s authority to protect nonprofit groups in Washington and their assets, asserting Pack illegally removed the fund’s board and certain officers.

The plaintiffs are board members Pack moved to replace June 17: former ambassadors Ryan C. Crocker and Karen Kornbluh, public relations executive Michael W. Kempner and Democratic technology policy adviser Ben Scott.

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