Jigsaw Productions, Inc. v. U.S. Securities and Exchange Commission

Issue

Can a federal agency withhold a recording of a public figure's investigative testimony under Freedom of Information Act Exemptions 6 and 7(C) on the ground that the recording could be manipulated into deepfakes of that person?

Rule

Freedom of Information Act Exemption 6, 5 U.S.C. 552(b)(6), covers personal information whose disclosure would constitute a clearly unwarranted invasion of personal privacy, and Exemption 7(C), 5 U.S.C. 552(b)(7)(C), covers law enforcement records whose disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. To invoke either, the agency must identify a privacy interest that is substantial, meaning more than de minimis, and only then does the court balance that interest against the public interest in disclosure. Separately, the agency must satisfy the foreseeable harm requirement with what Reporters Committee for Freedom of the Press v. FBI calls a focused and concrete demonstration of why disclosure of the particular material at issue will actually impede the protected interest; generalized assertions and abstract fears do not suffice. An agency may carry that burden by affidavit under Larson v. Department of State, and if it fails, the district court may order production under 5 U.S.C. 552(a)(4)(B).

Application

Jigsaw Productions is making a documentary about Elon Musk. It asked the Securities and Exchange Commission for the transcript and the recording of Musk's August 2018 interview with agency investigators, taken during the inquiry that led to the securities fraud charge over his tweets about taking Tesla private and the $20 million penalty he paid to settle. The agency released a 281-page redacted transcript and withheld the video in full, asserting the privacy interests of Musk, a Tesla executive, and everyone else in the room. Jigsaw narrowed its demand to the video and audio of Musk alone, for portions where the transcript was already unredacted. The District of Columbia district court found the asserted privacy interest badly diminished at the threshold. The substance of the interview is public because the agency released the transcript and brought a highly public enforcement action, and Musk himself discussed the matter on national television; as the court put it, the cat is out of the bag. The agency's declarations said only that the recording contains images of facial expressions and body language and audio of voices, which the court called fatally generic: they did not assert that Musk became emotional or distressed, or that he comports himself differently here than in the more than one hundred public interviews in which he has faced probing questions. The court distinguished the two authorities the agency leaned on. Advocates for Highway and Auto Safety involved private truck drivers promised confidentiality, while Musk is a world-famous figure who has held press conferences in the Oval Office and was promised nothing. New York Times Co. v. NASA established only that a recording carries personal information beyond the transcript, a point Jigsaw conceded, and its remand does not help the agency; comparing a tape of astronauts in their final moments to a chief executive answering questions about business affairs is a stretch. That left the deepfake argument. The agency submitted a declaration stating that Musk has been the subject of deep fakes and other malicious postings using his image and voice, and cited news reporting on Musk deepfakes driving billions of dollars in fraud losses. The court took the concern seriously in the abstract but found the causal claim speculative, noting that the agency's own sources attribute Musk's status as a frequent deepfake target in part to the sheer number of interviews he has given, so releasing one more video could not be shown to actually impede his privacy interests rather than merely to make more deepfakes possible. In any event, the court added, the privacy interest in withholding one video given the existence of at least a hundred others would be de minimis.

Conclusion

The District of Columbia district court denied the Securities and Exchange Commission's motion for summary judgment, granted Jigsaw Productions' cross motion, and ordered the agency to release within sixty days the portions of the recording corresponding to the unredacted portions of the transcript, permitting redaction of video or audio of anyone other than Musk. Because the agency identified no substantial privacy interest at all, the court did not reach the public interest side of the balance or the agency's segregability obligations, and it noted the agency never asked for a chance to supplement its declarations. This is a district court ruling on a specific record, and it turns heavily on how thoroughly public Musk's voice, image and interview answers already are.

The SEC next argues that the recording could be manipulated to create deepfakes of Elon Musk.

Judge Tanya S. Chutkan, framing the agency's argument

But the SEC cites several articles noting that Musk is already a frequent target of deepfakes

Judge Chutkan, turning the agency's own evidence against the asserted harm

The cat is out of the bag.

Judge Chutkan, on the effect of the agency's prior release of the transcript

Why it matters. This is one of the first decisions to test the deepfake-risk argument as a reason to keep an authentic government recording secret, and it fails on the record presented. The reasoning is context specific rather than categorical: the court accepted that the concern is real in the abstract, and the outcome rested on Musk's extraordinary existing exposure, which leaves room for a different result where the subject is a private person or the recording shows something not already public.

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