TRANSPARENCY REPORTS AND THEIR RELATIONSHIP WITH THE ESPIONAGE ACT.

Author:Glinn, Jaimee
 
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  1. 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. The Note will explain that the government's control over social media sites is not equivalent to its control over journalists or other leakers of information and that a close reading of the Espionage Act shows that it does not apply to situations like the one at hand. The Note will discuss the consequences of government use of the Espionage Act to control social media sites and transparency reports. Finally, Part Six will recommend other ways for the government to control classified information from social media sites without these issues.

  2. THE RISE AND IMPORTANCE OF SOCIAL MEDIA

    Social media is a new but extremely prevalent phenomenon. After the rise of computer technology and the internet, social media quickly followed, and the culture of the United States, as well as the rest of the world, has been altered greatly.

    Social media (5) is defined as "forms of electronic communication... through which users create online communities to share information, ideas, personal messages, and other content," (6) and is a product of the technology boom which has occurred over approximately the last twenty-five years. (7) Social networking began in the late 1990s with niche sites like SixDegrees.com and Classmates.com. (8) In the early 2000s, social networking grew, spawning sites such as Friendster.com and Myspace.com. (9) These sites allowed people to connect with each other in ways which they had not been able to previously and were extremely successful in doing so. (10) Though some sites did not last as long as others, they each contributed to a growth of connectivity among individuals across the globe. (11) As a product of this desire for connectivity, in 2004 Facebook was founded and quickly became one of the leading social networks globally. (12) In fact, Facebook, as of 2016, "boast[ed] more than 1.3 billion active users." (13) Soon after the rise of Face-book, Twitter joined the trend and became extremely popular itself, boasting 320 million users as of March 2016. (14)

    Nowadays, there exist many different social networking sites, each with unique traits and objectives. (15) The popularity of social media has become so pervasive that sites are constantly looking to expand and progress, for example, through a shift to "mobile" platforms. (16) This new mobility of networking sites allows people to exist on various platforms no matter where they are and gives people great power at the palms of their hands. (17) In fact, this mobility has become so popular that it is almost commonplace, so social media is being forced to adapt again. (18) Many predict the next phase for social media will be that of virtual reality headsets, allowing users to have a unique "audio-visual experience" while still maintaining connections with others. (19)

    Social media has touched many aspects of human lives. From journalism and news to sports and entertainment, it has influenced our culture, for better or for worse. In fact, a 2015 study showed that 65% of Americans "use social networking sites." (20) Further, 27.8% of Americans cite social media as "their preferred news source." (21) Journalists not only rely on social media to get their news and write their stories, but they also choose to transmit their stories to consumers through those same social media sites. (22) This is partly due to social media's wide spread reach - a variety of people use social media, from the elderly to young teenagers. (23)

    News outlets have recognized this and, therefore, are beginning to choose to utilize social media sites as much as possible. (24) Nowadays, diverse groups of people get their news from social media sites (25).Social media sites have also allowed news sources to become more transparent, as they are able to connect more directly to consumers who want as much information as possible about an issue, and who can insure accountability with greater speed and accuracy. Because information can be dispersed more quickly through social media, more information in total can be dispersed, widening the scope of possibilities for news outlets. (27) Social networks also provide platforms for information to be posted and for people to state their personal thoughts and opinions to the general public, creating a sense of connectivity that the non-digital world often lacked. (28)

    At issue in this Note is the publication of classified information pertaining to social media sites. The Espionage Act has often been used to control similar types of information (29) and could arguably cover certain uses of social media in releasing information.

    Classified information is defined in the Espionage Act as "information which, at the time of the violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution[.]" (30) Further, "information may be classified if 'its disclosure reasonably could be expected to cause damage to the national security.... [and] harms to national security' include impairment of defense capabilities, disclosure of intelligence gathering techniques or capabilities, and disruption of diplomatic relations with other countries." (31) The government places documents into three levels of classifications: confidential, secret, and top secret. (32) The exact definitions of these levels are defined by each administration at the time in which they are applied. (33) There has been litigation as to the Espionage Act's interaction with classified information. (34)

    However, at issue in this Note is only domestic classified information as opposed to information pertaining to international issues and, therefore, this Note will argue that the Espionage Act should not apply against social media sites that are dispersing this type of domestic classified information through transparency reports.

  3. THE ESPIONAGE ACT

    In analyzing the Espionage Act, it is important to consider its history. In 1917, the United States was facing World War I, and concern for American safely was high. (35) The government wanted to prevent sabotage and disloyalty, (36) and, in order to do so, it needed to start on the inside. The government was interested in enacting measures to punish Americans who revealed American secrets to others. (37) Because of this, Congress enacted the Espionage Act of 1917, which was closely followed by...

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