Academic journal article Rutgers Computer & Technology Law Journal

Transparency Reports and Their Relationship with the Espionage Act

Academic journal article Rutgers Computer & Technology Law Journal

Transparency Reports and Their Relationship with the Espionage Act

Article excerpt

  I. THE RISE AND IMPORTANCE OF SOCIAL MEDIA               212  II. THE ESPIONAGE ACT                                     216      A. Early Issues- The Proper Standard                  218      B. Constitutionality and Vagueness                    219      C. Recent Evaluations of the Espionage Act Doctrine   221 III. THE FIRST AMENDMENT                                   223      A. The First Amendment and the Espionage Act          224  IV. SETTING THE SCENE                                     225      A. Current Events                                     226      B. Modern Day                                         227   V. ANALYSIS                                              229      A. Interpreting the Espionage Act                     229      B. Prosecuting Social Media Sites                     233      C. First Amendment Implications of         Suing Social Media Sites                                                            236   D. Societal Trends and Future Consequences               238  VI. RECOMMENDATIONS AND CONCLUSION                        739 

Technological privacy is a prominent issue in our society. People in the United States increasingly want greater accountability from the websites they use and greater protection from disclosure of information that they post on those websites. Though this issue may seem modern, it has existed in various forms throughout history. In 1917, Congress passed the Espionage Act (18 U.S.C. [section] 793-799), which attempted to control and punish disclosure of classified information that could interfere with the United States government and its policies. (1) This Act is still valid today and is now beginning to be used in this new context of technological privacy. In fact, the United States government is currently trying to use the Espionage Act to control and restrict the release of information in social media transparency reports, which it considers to be classified information, to internet users. (2) This is uncharted territory and it is unclear if the government will succeed in trying to prosecute social media sites this way.

This Note will discuss the government's use of the Espionage Act as a tool for regulation of social media sites, and the implications of this on First Amendment rights and other societal trends. Part One of this Note will discuss the rise and importance of social media. It will discuss how social media came to be, its characteristics, and how it has affected society to date. Part Two will discuss the history of the Espionage Act including what it entails and how it has been used in the past. The Note will further discuss several cases which defined how the Espionage Act was interpreted and will show how it has been used in contemporary times as well. Part Three of this Note will discuss the First Amendment and its history, specifically in terms of the freedom of speech clause. The Note will discuss how case law has been shaped by First Amendment doctrine and will present several instances of its interaction with the Espionage Act. Part Four will take on the history of the specific issue at hand - government regulation of classified information through the Espionage Act. Several cases in recent history regarding the publication of classified information against the U.S. government's wishes will be discussed. The Note will explain the rise of transparency reports, which are "report[s] that summarize[] the number of law enforcement and intelligence requests that [companies] received and responded to," (3) and the reports' connections to government regulation. Specifically, the Note will highlight the case of Twitter v. Sessions et al. in which Twitter is suing the United States Department of Justice for violating its First Amendment rights by refusing to allow it to publish its requested transparency report to its users. (4) In Part Five, it will be argued that the United States government cannot and should not ban Twitter and other social media sites from publishing the transparency reports using the Espionage Act for various reasons. …

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