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 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
  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.


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 and (8) In the early 2000s, social networking grew, spawning sites such as and (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.


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 the Sedition Act of 1918. (38)

The Espionage Act ("the Act") works to punish the disclosure of national security information to those who are not authorized to receive it as well as to prosecute disloyal Americans through fines and penalties. (39) The Act contains several parts, with the most relevant sections to the issues in this Note being section 798 and 793. (40) Section 798(a) states:
Whoever knowingly and willfully communicates, furnishes, transmits, or
otherwise makes available to an unauthorized person, or publishes, or
uses in any manner prejudicial to the safety or interest of the United
States or for the benefit of any foreign government to the detriment of
the United States any classified information--(1) concerning the
nature, preparation, or use of any code, cipher, or cryptographic
system of the United States or any foreign government; or (2)
concerning the design, construction, use, maintenance, or repair of any
device, apparatus, or appliance used or prepared or planned for use by
the United States or any foreign government for cryptographic or
communication intelligence purposes; or (3) concerning the
communication intelligence activities of the United States or any
foreign government; or (4) obtained by the processes of communication
intelligence from the communications of any foreign government, knowing
the same to have been obtained by such processes--Shall be fined under
this title or imprisoned not more than ten years, or both. (41)

While the purpose of the Act may have seemed noble at the time of its enactment, its application in the early years was troublesome. (42) During President Wilson's tenure, the Act was applied frequently. (43) The early version of the Act required judicial discretion, resulting in various differences in application and thousands of people being convicted under the Act even if they may not have deserved their convictions. (44) Throughout and after this period of uncertainty, the modern Espionage Act doctrine was shaped through case law, but not without difficulty. (45)

A. Early Issues- The Proper Standard

Soon after the Espionage Act became law in 1917, the Supreme Court case of Schenck v. United States articulated a test for analyzing Espionage Act questions. (46) There, the defendant was convicted under the Espionage Act for circulation of anti-military documents. (47) The Court decided to use a "clear and present danger" standard in determining whether the Constitution allowed Congress to prohibit defendant's speech. (48) This meant that the Court analyzed whether or not the acts or expression of the defendant created a clear and present danger to others that Congress needed to prevent. (49) If it did, the Espionage Act would prohibit the expression. (50) The case resulted in the violation of the Espionage Act being upheld, as the defendant's actions did cause a clear and present danger. (51) The clear and present danger test is still well known and discussed. (32)

B. Constitutionality and Vagueness

The constitutionality of the Espionage Act has been brought into question several times and each section of the Act had to be fleshed out to provide guidance to United States citizens on whether or not they were violating it. (53)

For example, in Gorin v. United States, the petitioners were convicted under the Espionage Act after violating section 793 of the Act. (34) Petitioners had gathered information about United States national defense strategies and provided the information to Petitioner Gorin, who was an agent of what was then the USSR. (55) When petitioners claimed that the Espionage Act was unconstitutionally vague, the Court responded by denying this claim and clarifying that the Espionage Act required that a person act with bad faith in dispensing national defense information, which thereby eliminated any vagueness. (56) The Court enumerated that bad faith was defined as acting with '"reason to believe that the information [] [will] be used to the injury of the United States.'" (57)

More recently, in the Fourth Circuit case of United States v. Morison, the defendant, an employee of a British publication, was prosecuted for transmitting naval intelligence documents to a foreign intelligence agent. (58) The Court in its opinion reinforced the idea that the Espionage Act can apply to anyone, not just a spy or agent of a foreign government. (59) The Court also cited to precedent and explained that the language of the Act states that no one, whether source or reporter, is immune from criminal liability under the Act and therefore the Act is sufficiently clear and descriptive. (60) Also, the government has a great interest in prohibiting the transmission of intelligence documents, and the statute was sufficiently narrowed in application so as to avoid any overbreadth issues. (61) Defendant's convictions were thus constitutional against his claims of overbreadth and vagueness. (62)

C. Recent Evaluations of the Espionage Act Doctrine

The Espionage Act is still at issue in modern times, as seen in United States v. Rosen, a 2007 case where defendants were "charged with conspiracy to violate the Espionage Act." (63) The Court clarified the Espionage Act doctrine by enumerating that "'information related to the national defense'(NDI) [is] confined to information [that is] closely held by the government and damaging to national security if revealed." (64) To prosecute a defendant for conspiracy to violate section 793 through disclosing information related to national defense, the government must prove that
defendants (i) knew that the information the conspiracy sought to
obtain and disclose was NDI, i.e., knew that the information was
closely held by the government and that the disclosure of the
information would be damaging to the national security, (ii) knew the
persons to whom the disclosures would be made were not authorized to
receive the information, (iii) knew the disclosures the conspiracy
contemplated making were unlawful, (iv) had reason to believe the
information disclosed could be used to the injury of the United States
or to the aid of a foreign nation, and (v) intended that such injury to
the United States or aid to a foreign nation result from the
disclosures. (65)

Further, in United States v. Kiriakou, the defendant was "charged with violating the Espionage Act" for disclosing information to a journalist. (66) Defendant argued that he "did not intend to injure the United States" in disclosing the information. (67) The Court reasoned that there is no direct authority dealing with the clause of the statute that "imposes a burden on the government to prove that the defendant intended to injure the United States or to aid a foreign government." (68) Therefore, the Court reaffirmed that the text of the statute means what it says and the requirement for disclosure of information only maintains that the government establish that "the possessor ha[d] reason to believe [that the information] could be used to the injury of the United States or to the advantage of any foreign nation." (69) Therefore, defendant's contentions were denied. (70)

Through case law since 1917, the Espionage Act has been molded and clarified and remains constitutional to this day. (71) Though the Act has been amended several times over the years to maintain its relevance, its message has remained the same - the United States needs to be protected and it is necessary to punish those who threaten its national security. (72) However, it is worth noting that most of the precedent cases invoking the Espionage Act have dealt with the disclosure of military and government national defense information, rather than the transparency of the government itself. (73)


The First Amendment was added to the Constitution of the United States in 1791. (74) The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (75) Though there are several clauses within the Amendment, an important clause is the freedom of speech clause. (76) This clause has been the subject of much litigation throughout the history of the United States concerning a variety of topics, such as the speech rights of students, (77) on the internet, (78) and in many other areas. The freedom of speech doctrine is often intertwined with freedom of the press, which is significant in deciphering the rights of news media and reporters in publishing information. (79)

A. The First Amendment and the Espionage Act

Soon after the Espionage Act was passed, its clashes with the First Amendment were evident. (80) However, the most groundbreaking case involving this topic was brought to the attention of the Supreme Court in 1971: New York Times Co. v. United States. (81) This case came about as a result of The New York Times and the Washington Post publishing classified excerpts from the Pentagon Papers, a group of confidential government documents that they had received from a government whistleblower. (82)

In this case, the United States government asked for an injunction prohibiting the publication of the Papers because of the sensitive information contained within them, and the newspapers appealed. (83) The Court found that the injunction should not have been granted, and that the newspapers should be able to publish the Pentagon Papers. (84) The Court discussed the issue of prior restraint of newspaper materials and explained that this is almost never consistent with the First Amendment. (85) The press has the right to be unrestrained in order to enhance the ideals of an educated public and a rich marketplace of ideas and thereby end corruption in the government. (86) This case was extremely significant at the time, and is still a leading case for dealing with classified information. (87)

In 1972, the Court again dealt with similar issues, this time specifically in the case of the news reporters and the use of confidential information. (88) In Branzburg v. Hayes, the Court reiterated that "'the publisher of a newspaper has no special immunity for the application of general laws.'" (89) The Court found that a newsman had to appear before a grand jury on an indictment for criminal charges in the same way that any other citizen would have to do so, and has to present testimony regarding their sources and any actual confidential information they have received. (90) The Court also found that the public interest in prosecuting crimes is greater than the public interest in promoting protection of confidential information to news reporters.

These cases demonstrate the relevance of the First Amendment guarantees of freedom of speech and press. (9) Though the government may have an interest in keeping information to itself, often the public has a greater interest in receiving the information. (93) When the Espionage Act and the First Amendment clash, it is a very tight race, but a lot of times the First Amendment wins. (94)


It is obvious that when combining social media, The Espionage Act, classified information, and the First Amendment, there are bound to be complications and difficult decisions must be made. Though the First Amendment and the Espionage Act seem arcane and outdated compared to the social media juggernaut, all of these ideals are extremely relevant in this day and age, often implicating each other in current conflicts.

A. Current Events

In fact, 2013 was a big year for these intermingling concepts, beginning with National Security Agency ("NSA") agent Edward Snowden's release of various NSA documents and other classified information to several press outlets including The Washington Post and British newspaper, The Guardian. (95) Snowden fled the United States and thus has never been prosecuted. (96) His release of the secrets caused an outrage in the United States and sparked great controversy regarding the role of the government and the free speech rights of United States citizens. (97) If Snowden ever comes back to the United States, it is likely that he will be prosecuted under the Espionage Act. (98)

In the same year, U.S. Army Private Chelsea Manning was convicted of releasing secret military documents to Wikileaks, (99) an organization that publishes leaked data, including classified and sensitive information. (100) Manning was convicted under the Espionage Act after releasing these documents and was sentenced to thirty-five years in prison. (101) The reaction to Manning's conviction was controversial, as those in favor of civil liberties and transparency condemned the sentence because of its potential restrictions on the press, while others were in favor of the conviction in hopes of deterring future violations of the law. (102)

B. Modern Day

The issue at the heart of this Note arose because of the case Twitter v. Sessions et al, which is currently in the litigation process before the United States District Court for the Northern District of California. (103) In the case, Twitter sued the United States Department of Justice seeking declaratory relief. (104) Twitter wanted to publish a transparency report to its users, and the government is not allowing it do so because it claims the information in the transparency report is classified and therefore cannot be published as it stands to the public. (105)

Transparency reports are reports published by various internet providers that show their users how many requests they have received from the government and law enforcement concerning user information and records. (106) The reports contain data and numbers. (107) By publishing these reports, the sites are attempting to be transparent and open to their users. (108) Transparency reports help keep users up to date on what is going on behind the scenes of their favorite websites and show users how often the sites defend the content their users produce. (109) Various sites issue transparency reports, including Google, Verizon, and Dropbox. (110) Transparency reports must follow specific regulations as specified by the government. (111) Twitter does not want to follow the specified framework, and wants to reveal more information than is usually included in the reports, which is where this lawsuit comes in. (112)

The government does not want Twitter to publish its version of the transparency report because it claims the information in the report, which includes data concerning the Foreign Intelligence Surveillance Act as well as National Security Letters, is classified under the United States Freedom Act. (113) Twitter subsequently filed suit against the government, claiming it has a First Amendment right to publish information of this type to its users. (114) In response, the government contended that if Twitter published the information, it would prosecute the company under the Espionage Act, among other things. (115) Twitter replied that the Espionage Act cannot be applied to it in this way consistent with the Constitution. (116)

Several other media outlets have joined Twitter in its suit as amici, including The Washington Post, Buzzfeed, and Reddit (117)


There are several important aspects to consider when evaluating whether or not the government should be able to use the Espionage Act as a punishment against social media sites in the context of transparency reports. The government would have to apply the Espionage Act in a new and unique way and would have to argue that the court should interpret the Act differently than how it has done so in the past. Further, the government would have to be able to counteract First Amendment problems as well as cultural trends that disfavor using the Espionage Act in this type of circumstance. Ultimately, it is unlikely that the government will be able to overcome these hurdles, and a court would likely find that the Espionage Act cannot be used to prevent social media sites from publishing transparency reports as they see fit.

A. Interpreting the Espionage Act

As previously stated, the Espionage Act was passed and became law around the time of World War I. The intention of the Act was to prosecute individuals for disloyalty to the United States. (119) Specifically, Justice Marshall, in his concurrence in the New York Times case, explained the legislative history of the Espionage Act and specifically stated that section 793(e) of the Act has been used "only to prosecute those charged with ordinary espionage," as opposed to restricting disclosure of publication information in general. (120)

In the case of Twitter and other similar sites, the specific information in transparency reports would not be revealing any international or military security information and, therefore, the sites would not be committing "ordinary espionage." (121) They would not be revealing war secrets or aiding any foreign governments. (122) Twitter's transparency report simply reveals acts of the government that are relevant to its users and to the platform itself. (123) The transparency report that Twitter wants to release would just contain more specific numerical data than is already released by Twitter and other social media sites. (124) The intention in posting the transparency report is obvious - transparency. (125) There is no evidence that the intent of the Espionage Act was to eliminate government or private organizational transparency to United States citizens, and therefore, actions against Twitter or other sites would not be consistent with the aims of the Espionage Act as it is written and has been applied. (126) Though it may be conceded that the authors of the Espionage Act did not contemplate the scope of social media, it seems as though the type of information the Act was made to prohibit is not the type of information social media sites are publishing in detailed transparency reports. If social media sites did publish military or national defense information, the Espionage Act could potentially be properly applied. (127) However, because this is not the case, the use of the Espionage Act for the type of information revealed through these social media sites would probably infringe on the rights of social media sites.

Moreover, publication of these transparency reports would not be contrary to the aims of sections 793 or 798 of the Espionage Act, which are relevant sections that the government could try to use in order to punish Twitter for its actions. (128) Section 793 bans the "[g]athering, transmitting, or losing" of national defense information. (129) National defense information is defined in the section as information
relat[ing] to the military and naval establishments and the related
activities of national preparedness, and includ[ing] all matters
directly and reasonably connected with the defense of our nation[,]
[but]....  not includ[ing] information which comes from sources that
were lawfully accessible to anyone....  willing to take the pains to
find, to sift and collate it. (130)

Section 793 of the Espionage Act, specifically subsections (d) and (e), has been viewed as incredibly complex and somewhat incoherent and has therefore been found to be very difficult to apply. (131) For example, the definition of publication of information under the specific subsections is unclear. (132) However, it is interesting to note that concurrent with the 1950 amendment to the Act, Congress heavily discussed and eventually passed an anti-censorship provision as part of the Internal Security Act, so as to combat the potential effect the Espionage Act could have on the newspaper industry. (133) Based on this, if the government chooses to prosecute social media sites for publishing the transparency information, this section may eliminate any potential argument in their favor.' (34) It seems as though Congress did not intend for section 793 to apply to the press at all, as is evident through its legislative history, which reflected the "erroneous belief that ordinary citizens were more at risk under section 793 than newspapers." (135)

Under section 793, as discussed in case law, bad faith intent is needed, (136) and there does not seem to be bad faith on the part of Twitter or similar sites in posting detailed information in transparency reports. (137) The sites do not seem to be publishing the reports in order to harm the United States and seemingly do not believe that doing so could even potentially harm the United States. (138) The audience of the reports is neither the United States government nor the government of any other countries. (139) The sites are simply publishing information that directly pertains to their users because of the users' interactions with the sites. (140) Therefore, the government would probably not be very successful in using section 793.

Section 798 may not fare much better for the government. Section 798 has left itself open to the possibility of a defense of improper classification, which is an argument Twitter could make in response to prosecution under this section. (141)

Further, section 798 has been viewed as extremely narrow, and some say it was only meant to be applied to government executives and those who willfully wanted to harm the United States. (142) The committee that drafted the section seemed to consider that the rights of the public and of newspapers were consistent with section 798, which is further evidence that the statute is to be construed narrowly. (143) Again, the information disclosed in the transparency reports was not intended to aid a foreign government, which is a specific aim of section 798. (4) Therefore, under the interpretation of section 798, it is not likely that social media transparency information would be included as information requiring government censorship.

The government may have a strong counterargument in saying that the domestic information in transparency reports could fall under the prong of "communication intelligence" as defined by section 798. (145) However, even if the government did this, the social media sites could have a stronger argument by saying that section 798 may still not be used because of its narrowness; they could argue that it was only meant to be applied to government executives and not to news outlets or publications. (146)

The role of social media sites in society is not to act as a spy or to hide private information. Social networks, like Twitter, allow users to be candid and honest in their interactions with others. The legislative interpretations of the Espionage Act do not seem to lend themselves in favor of the United States government in cases similar to the one at issue here.

B. Prosecuting Social Media Sites

Another criterion to consider in assessing whether or not the government has the ability to use the Espionage Act as a control over social media sites is the intention of the Act in terms of who it is supposed to be targeting, as opposed to the type of information it is targeting.

In assessing the audience of the Act, it is necessary to start by looking at the language of the Act itself. The Act discusses the consequences of revealing information, specifying imprisonment, among other things. (147) This could lead to the conclusion that news outlets and social media sites may not have been contemplated by the Espionage Act as the types of entities to be prosecuted, as social media sites would not be able to be imprisoned. The Act could be interpreted to be directed toward individuals, whether they are whistleblowers, journalists, or regular citizens. Further, the government is often reluctant to pursue claims against news entities themselves, (148) though the entities have sued the government. (149)

Because of this potential tendency toward individual responsibility, one way the government could potentially go about prosecuting social media sites is by considering each site as an individual journalist or member of the press. A journalist is defined as someone who is "employed to regularly engage in gathering, processing, and disseminating [] news and information [] to serve the public interest []."' The government has to be extremely careful in restricting the press and journalists, because freedom of the press is a First Amendment guarantee. (151)

It is unclear if the social media sites would even qualify as journalists or members of the press. Social media sites mainly reflect posts and information from other sources and users, instead of issuing their own information. However, the ambiguity here exists in that the transparency reports are being published by the sites themselves (152) and therefore involve the site's own information. It is unclear which way a court would find on this discrepancy, but both sides can definitely be argued.

Another problem with the government choosing to sue social media sites as journalists is that journalists have a unique privilege in litigation and are viewed highly by the courts because their job helps to promote a well-informed society and a marketplace of ideas. (153) This privilege allows journalists to withhold their sources, yet they are still able to write about information that they receive from these sources regardless of the topic. (154) Though this privilege is not absolute, (155) it does make it more difficult for the government to bring a claim against a journalist. However, it might be worthwhile for the government to attempt to frame social media sites as journalists because even if a journalistic privilege is found the issue here is not the sources of the information but the actual information itself. Therefore, the journalistic privilege may not even apply. (156)

Though framing social media sites this way may seem to be the most successful for the government, social media sites could get around this argument by asserting their First Amendment rights to freedom of the press. (157) Also, "under the Espionage Act, a journalist would have an opportunity to assert a good-faith defense that he did not intend or have reason to believe the information would cause harm." (158) Therefore, there is a possibility of success in favor of the social media sites here in that they do not intend for the information to cause harm. Further, "no journalist has ever been charged under any section of the Espionage Act." (159) So, although the government could have a decent argument, the social media sites would have equally strong reasons showing that the government should not succeed.

The government could attempt to have greater success in its prosecution by attempting to frame a social media site as a whistleblower instead of a journalist or member of the press. Whistle-blowers are often prosecuted under the Espionage Act, as in the cases of Manning and others. (160) A "'whistleblower' has been defined as a government employee who 'discloses information that s/he reasonably believes is evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety.'" (161) Whistleblowers are often government employees who possess and disclose confidential information not otherwise available to the public. (162) Here, it is unclear if the social media sites would actually classify as whistleblowers, as they are releasing different types of information than whistleblowers usually release and are not government employees. The prosecution of whistleblowers under the Act does not consider the benefits of disclosure and the consequences of it. (163) Also, the policy perspectives of doing this are not great. If social media sites are considered whistleblowers, the information and platform they provide could drastically change because people would likely think more before they posted.

The ambiguity in prosecuting cases against social media sites is a major setback for the United States government and is perhaps a reason why the government has refrained from starting this type of lawsuit in the past. The options that the government has are not the best and prosecuting social media sites would likely be difficult. Therefore, the government would need to be extremely careful moving forward with a case like this and would need to seriously consider its choices in prosecution.

C. First Amendment Implications of Suing Social Media Sites

Not only are there statutory interpretations and logistical arguments in favor of preventing the government from using the Espionage Act to regulate specific transparency reports, there are also constitutional arguments.

Recently, the Court in the Twitter case evaluated whether the transparency report information could be released consistent with the First Amendment and other constitutional guarantees of rights. (164) The Court found that the Government's restrictions on Twitter qualified as a content-based prior restraint. (165) Prior restraint is a "content-based restriction of speech prior to publication." (166) Prior restraints are essentially irreversible as once they occur, they cannot be undone, and therefore courts prefer post-publication restraints when possible. (167) The reasoning behind this is that prior restraint hinders the goals of the First Amendment and hinders the achievement of an open marketplace of ideas that does not discriminate based on content of messages. (168)

The Court also explained that the restrictions were subject to strict scrutiny and found that the government could not overcome this burden as the restrictions were not narrowly tailored to the governmental objective. (169) Further, the Court explained that there was not an evident "clear and present danger" that justified the means used. (170) Though the Court did not go in depth about the clear and present danger, it does not seem as though there would be a clear and present danger because the information in the transparency reports does not advocate unlawful conduct or discuss information that could cause injury to the United States on behalf of foreign governments. (171) Though the government may not want its citizens to know that it is looking into their communications and posts on social media sites, the prospect of citizens having the information in the transparency report would not harm the government by more than just a lack of trust. Similar information is already published in transparency reports, (17)" so just allowing more specific information, which is what Twitter would like to do, (173) could not create so much damage. Simply limiting transparency reports does not seem to make much sense in the larger scope.

All of the cases regarding the Espionage Act and the First Amendment note the strong tension between the two. (174) Though not all come out in favor of the First Amendment, they all acknowledge that First Amendment rights are extremely important and that the Espionage Act can definitely create unconstitutional scenarios. (175)

D. Societal Trends and Future Consequences

Finally, restricting Twitter and other social media sites' publication of information in transparency reports would go against current societal trends. Nowadays, openness and transparency are extremely important societal values. (176) In fact, President Obama was extremely forthcoming about his feelings on government transparency. (177) He stated at the beginning of his term in office that he wanted to increase the transparency of his administration. (178) Many countries and other governments have followed his example, creating their own transparency regulations to strengthen government accountability. (179) Restricting transparency reports would contradict this new change and would limit any progress that has already been made.

People or entities that hide information from the general public are increasingly outcast and looked down upon by society, and their actions are deemed as wrong. (180) There would likely be backlash if specific social media sites did not publish a transparency report, as many others have already done so. (181) Though speculative backlash is likely not enough to dictate a court decision, it is a consideration that reveals a lot about societal trends and about which way a court should go in order to continue progress in society.

Further, the characteristics of social media do not lend themselves to censorship by the government in this way. The ability to access information through the internet is something that most people have become accustomed to, and the internet is likely to only allow for more connectivity in the future. (182) Therefore, prohibiting social media sites from publishing certain information for their users would contradict the purposes of social media and would alter its role in modern society. (183)

In order to maintain the many positives that social media has brought to the United States it is necessary to limit restrictions on it. Purely from a cultural standpoint, restricting social media sites under the Espionage Act would seem to be unconstitutional.


In response to the arguments made by social media sites against the use of the Espionage Act, the government could present some counterarguments. For example, the government could argue that social media sites are often not as transparent as they seem. (184) Though they advocate publicly for free speech, they often privately censor some information and block users from posting things. (185) Therefore, would it really be unfair for the government to do the same? While this argument is compelling, because of the recent push for free speech and how prevalent of an issue this is in today's society, it is likely that social media sites that do censor will soon be held accountable. (186)

Social media's unique characteristics of accessibility and speed cause it to have different issues than other mediums of communication like newspapers or magazines. (187) Social media sites are unique because they are tools of the people, and therefore may be harder to regulate. In order to solve the problem of how the government can regulate social media sites, there are several possible methods both the government and social media sites could take. Social media sites could advocate for a reclassification of the type of information they would like to publish in the transparency reports. (188) Social media sites could also advocate that the Espionage Act be amended or at least updated to encompass modern day issues. (189) Because the Act was written so long ago, it could probably use a change in order to be more applicable to modern society and help to eliminate problems like the one at hand. The Espionage Act could probably use more narrowly tailored language that directly pertains to the type of information released by the social media sites, and language that specifically deals with social media outlets. (190) Because the Act can be confusing and unclear, (191) revision of its current provisions could be helpful.

On behalf of the government, the U.S. Department of Justice could choose to prosecute social media sites under a different piece of legislation. They could try prosecuting the sites under the USA Freedom Act, (192) which they are currently doing. (193) They could also try to create new legislation that would solve this problem in a different way. Though the Espionage Act may seem to be applicable because it is so antiquated, it is probably not the most efficient or successful way for the government to prosecute the transparency reports of social media sites.

Social media will continue to change the course of our society, and therefore it is necessary that the government keep up with trend. The language of the Espionage Act, the past case precedents, the logistical aspects, the constitutional arguments and the social implications of using the Act against transparency reports of social media sites would likely not come out in favor of the government, and it is likely that a court will find the government's use of the Act unconstitutional. (194) The most important factor here is the type of information that the government is trying to classify- information from transparency reports. While other types of information from social media sites would be more likely to be able to be banned under the Espionage Act, information in transparency reports should not be. Social media sites should be able to publish detailed information to their users through transparency reports consistent with the laws of the United States.


(*) J.D. Candidate, Rutgers Law School 2018. B.A. Philosophy, Politics and Law, Binghamton University. The author would like to thank her parents, Adam and Elissa Glinn, for all of their support throughout her life and especially throughout law school. The author would also like to thank her faculty advisor, Professor Carlos Ball, as well as the staff of the Rutgers Computer and Technology Law Journal for all of their assistance.

(1) See U.S. Congress Passes the Espionage Act, HISTORY, (last visited May 14, 2018).

(2) See generally Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803 (N.D. Cal. 2017).

(3) Ryan Budish, What Transparency Reports Don't Tell Us, ATLANTIC (Dec. 19, 2013),

(4) See Sessions, 263 F. Supp. 3d at 806.

(5) Throughout the rest of this Note, the terms "social media" and "social network" will be used interchangeably. Also, the term "site" will be referring to social media/networking sites specifically, as opposed to websites in general.

(6) Social Media, MERRIAM-WEBSTER (May 11, 2018),

(7) See generally Ruchir Sharma, When Will the Tech Bubble Burst?, N.Y. TIMES: OP. (Aug. 5, 2017),

(8) See Saqib Shah, The History of Social Networking, DIG. TRENDS: FEATURES (May 14, 2016, 6:00 AM),

(9) See id.

(10) See id.

(11) See id.

(12) See id.

(13) Id.

(14) Guest, Here's How Many People Are on Facebook, Instagram, Twitter and Other Big Social Networks, ADWEEK (Apr. 4, 2016),

(15) See generally Shah, supra note 8.

(16) See id.

(17) See id.

(18) See id.

(19) See id.

(20) Andrew Perrin, Social Media Usage: 2005-2015, PEW RES. CTR. (Oct. 8, 2015),

(21) The Impact of Social Media on Society, BUS. OPPORTUNITIES.BIZ (Feb. 19, 2015), http://www.

(22) See Nic Newman, The Rise of Social Media and its Impact on Mainstream Journalism (Sept. 2009) (unpublished working paper) (on file with Reuters Inst. for the Study of Journalism),

(23) See Perrin, supra note 20.

(24) See Matthias Revers, The Twitterization of News Making: Transparency and Journalistic Professionalism, 64 J. OF COMM. 806, 821-22 (2014).

(25) See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, PEW RES. CTR. (Sept. 7, 2017),

(26) See Revers, supra note 24, at 821-22.

(27) See Mary Kathryn Woods, Breaking News at the Speed of Social Media, PLATFORM MAG. (Nov. 7, 2014, 2:35 PM), http://platformmagazine.Org/2014/11/07/breaking-news-at-the-spced-of-social-media/.

(28) See Jenny Q. Ta, What Impact Has Social Media Truly Had on Society, Bus. 2 CMTY. (Aug. 13, 2014),; see also Homero Gil de Ziiniga et al., Social Media Use for News and Individuals' Social Capital, Civic Engagement and Political Participation, 17 J. OF COMPUT.-MEDIATED COMM. 319, 321-22, 331 (2012).

(29) See 18 U.S.C. [section] 793 (2018).

(30) 18 U.S.C. [section] 798(b) (2018).

(31) United States v. Morison, 844 F.2d 1057, 1075 (4th Cir. 1988) (quoting Tamanaha, A Critical Review of the Classified Information Procedures Act, 13 AM. J. CRIM. LAW 277, 284-85 (1986)).

(32) Mark Fenster, Disclosure's Effects: WikiLeaks and Transparency, 97 IOWA L. REV. 753, 785 (2012).

(33) Id.

(34) See e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 926 (4th Cir. 1980).

(35) See David Greenberg, The Hidden History of the Espionage Act, SLATE (Dec. 27, 2010, 8:47 AM),

(36) See id.

(37) See id.

(38) U.S. Congress Passes the Espionage Act, supra note 1. The Sedition Act is often discussed with the Espionage Act, as both were created to punish disloyal Americans. See id. The Sedition Act punished those who spread lies about the United States' war efforts and spoke badly about the government. See id.

(39) See 18 U.S.C. [section][section] 793-99 (2018).

(40) See id. at [section][section] 793, 798; see infra Part V.

(41) 18 U.S.C. [section] 798(a).

(42) Greenberg, supra note 35.

(43) See id.

(44) See id.

(45) See infra notes 46-70 and accompanying text.

(46) 249 U.S. 47, 52-53 (1919).

(47) Id. at 48-49.

(48) Id. at 52.

(49) See id.

(50) Id. at 52-53.

(51) See id.

(52) See, e.g.. Brandenburg v. Ohio, 395 U.S. 444, 454 (1969) (Douglas, J. concurring) (stating that the meaning behind "clear and present danger" has changed since Schenck, and it is not considered the best test to assess a violation of the Espionage Act).

(53) See Gorin v. United States, 312 U.S. 19, 20-21 (1941); United States v. Morison, 844 F.2d 1057, 1062-64 (4th Cir. 1988).

(54) Gorin, 312 U.S. at 20-21. For reference, the current version of Sections 793(a) and (b) of the Act state
(a) Whoever, for the purpose of obtaining information respecting the
national defense with intent or reason to believe that the information
is to be used to the injury of the United States, or to the advantage
of any foreign nation, goes upon, enters, flies over, or otherwise
obtains information concerning any vessel, aircraft, work of defense,
navy yard, naval station, submarine base, fueling station, fort,
battery, torpedo station, dockyard, canal, railroad, arsenal, camp,
factory, mine, telegraph, telephone, wireless, or signal station,
building, office, research laboratory or station or other place
connected with the national defense owned or constructed, or in
progress of construction by the United States or under the control of
the United States, or of any of its officers, departments, or agencies,
or within the exclusive jurisdiction of the United States, or any place
in which any vessel, aircraft, a[pi]ns, munitions, or other materials
or instruments for use in time of war are being made, prepared,
repaired, stored, or are the subject of research or development, under
any contract or agreement with the United States, or any department or
agency thereof, or with any person on behalf of the United States, or
otherwise on behalf of the United States, or any prohibited place so
designated by the President by proclamation in time of war or in case
of national emergency in which anything for the use of the Army, Navy,
or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be
prejudicial to the national defense; or (b) Whoever, for the purposes
aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains... any sketch, photograph..., document, writing, or
note of anything connected with the national defense.... Shall be
fined under this title or imprisoned not more than ten years, or both.

18 U.S.C [section] 793 (a), (b) (2018). It is likely that the government would use section 793(d) to sue social media sites. See Amended Complaint at 8-9, Twitter, Inc. v. Lynch, 139 F. Supp. 3d 1075 (N.D. Cal. 2015), No. 4:14-CV-04480-YGR (Bloomberg Law). That section specifically applies to
Whoever, lawfully having possession of, access to, control over, or
being entrusted with any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted or attempts to communicate, deliver, transmit
or cause to be communicated, delivered or transmitted the same to any
person not entitled to receive it, or willfully retains the same and
fails to deliver it on demand to the officer or employee of the United
States entitled to receive it.

18 U.S.C. [section] 793(d).

(55) Gorin, 312 U.S. at 22-23.

(56) Id. at 23-28.

(57) Id. at 27-28.

(58) 844 F.2d 1057, 1060-61 (4th Cir. 1988).

(59) Id. at 1070.

(60) Id. at 1063. ("When the terms of a statute are clear, its language is conclusive and courts are 'not free to replace... [that clear language] with an unenacted legislative intent.'" United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (Scalia, J. concurring) (1987)).

(61) Id. at 1076.

(62) Id. at 1073.

(63) 520 F. Supp. 2d 786, 789 (E.D. Va. 2007).

(64) Id. at 792.

(65) Id. at 793.

(66) 8 98 F. Supp. 2d 921, 922 (E.D. Va. 2012).

(67) Id.

(68) Id. at 926.

(69) Id. (quoting 18 U.S.C [section] 793(d)).

(70) Id. at 926-27.

(71) See generallv supra notes 46-71; see generally 18 U.S.C. [section][section] 793, 798 (2018).

(72) See generally 18 U.S.C [section][section] 793, 798 (2018).

(73) See, e.g., Gorin v. United States, 312 U.S. 19 (1941), United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), United States v. Rosen, 520 F. Supp. 2d 786 (E.D. Va. 2007).

(74) Freedom of Religion, Speech, Press, Assembly, and Petition, NAT'L CONST. CTR., (last visited May 11, 2018).

(75) U.S. CONST, amend. I.

(76) See id.

(77) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504-05 (1969).

(78) Reno v. ACLU, 521 U.S. 844, 870-75 (1997) (finding that the internet should be subject to the same judicial scrutiny as other mediums of communication and explaining that the government interest in prohibiting speech and expression in the internet age is not as strong as the promotion of free ideas).

(79) See generally U.S. CONST, amend. I.; see also Tony Rogers, The Meaning of the First Amendment, THOUGHTCO. (Apr. 10, 2017),

(80) See, e.g., Schenck v. United States, 249 U.S. 47 (1919).

(81) 403 U.S. 713 (1971).

(82) Id. at 714.

(83) See id.

(84) See generally id.

(85) See id.

(86) See id. at 717.

(87) See generally Jon Swaine, The Impact of the Pentagon Papers 40 Years On, TELEGRAPH (June 13, 2011, 10:07 PM),

(88) See Branzburg v. Hayes, 408 U.S. 665 (1972).

(89) Id. at 683 (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)).

(90) Id. at 690-91.

(91) See id. at 695-96.

(92) See supra notes 81-91 and accompanying text.

(93) Branzburg, 408 U.S. at 696-97.

(94) See supra notes 81-91 and accompanying text.

(95) See CNN Library, Edward Snowden Fast Facts, CNN (June 14, 2017, 5:32 PM),

(96) Edward Snowden Biography, BlOGRAPHY.COM (Feb. 6, 2018), http://www.biography.eom/people/edward-snowden-21262897#aftermath.

(97) See id.

(98) See id.

(99) See Chelsea Manning Biography, BlOGRAPHY.COM (Aug. 10, 2017), Chelsea Manning was known at the time as Bradley Manning. Id.

(100) What is Wikileaks, WIKILEAKS (NOV. 3, 2015),

(101) See Chelsea Manning Biography, supra note 100. Manning's sentence was commutated by former President Barack Obama, after serving seven years of a thirty-five-year sentence. Id.; see also Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. TIMES (Jan. 17, 2017),

(102) See Paul Lewis, Bradley Manning Given 35-year Prison Term for Passing Files to Wikileaks, GUARDIAN (Aug. 21, 2013),

(103) Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803 (N.D. Cal. 2017). The case name has changed over the years. The case originated as Twitter v. Holder, then became Twitter v. Lynch, and is currently Twitter v. Sessions.

(104) Twitter, Inc. v. Lynch, 139 F. Supp. 3d 1075, 1077 (N.D. Cal. 2015).

(105) See id, at 1077-79.

(106) See Budish, supra note 3.

(107) See Meghan Kelly, Why the Transparency Report is Necessary in the Fight for Privacy, VENTURE BEAT (Sept. 12, 2013, 4:01 PM),

(108) See Transparency at Dropbox, DROPBOX, (last visited May 11, 2018); see also Transparency Report, GOOGLE (last visited May 1 1, 2018) [hereinafter Google Transparency Report].

(109) See Budish, supra note 3; see also Rebecca J. Rosen, How Google Decides: Google's Transparency Report and What It Reveals About the Company's Role in the World, ATLANTIC (June 18, 2012),

(110) Id.; see also Transparency at Dropbox, supra note 108; Google Transparency Report, supra note 108; Verizon's Transparency Report for the 2nd Half of 2017, VERIZON, (last visited May 11, 2018) [hereinafter Verizon Transparency Report].

(111) See Brett Weinstein, Legal Responses and Countermeasures to National Security Letters, 47 WASH. U. J.L. & POL'Y 217, 235-37 (2015).

(112) See Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803, 806-07 (N.D. Cal. 2017); see also Twitter, Inc. v. Lynch, 139 F. Supp. 3d 1075, 1077-78 (N.D. Cal. 2015).

(113) See Sessions, 263 F. Supp. 3d at 806-09; see also Lynch, 139 F. Supp. 3d at 1077-78.

(114) See Sessions, 263 F. Supp. 3d at 805-07; see also Twitter, Inc. v. Holder, 183 F. Supp. 3d 1007, 1009-10 (N.D. Cal. 2016).

(115) Holder, 183 F. Supp. 3d at 1009.

(116) See id.

(117) Twitter, Inc. v. Sessions et al., No. 4:14-CV-04480-YGR (N.D. Cal., Oct. 7, 2014) (Bloomberg Law).

(118) See U.S. Congress Passes the Espionage Act, supra note 1.

(119) Greenberg, supra note 35.

(120) N.Y. Times Co. v. United States, 403 U.S. 713, 745 (1971) (Marshall, J., concurring).

(121) Espionage is defined as the act "of spying on the federal government and/or transferring state secrets on behalf of a foreign country." Espionage Legal Definition, THE FREE DICTIONARY, (last visited May 11, 2018).

(122) See generally Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803, 808-09 (N.D. Cal. 2017).

(123) See id.; see e.g. Transparency at Dropbox, supra note 108.

(124) See Sessions, 263 F. Supp. at 808.

(125) See id. at 808-09.

(126) See Greenberg, supra note 35.

(127) See generally 18 U.S.C. [section] 793 (2018).

(128) See Judge Won 7 Reconsider Gag Order Ruling for Twitter Over FBI Data Collection, 3-8 Mealey's Data Privacy Report 5 (2017); see also Amended Complaint at 8-9, Twitter, Inc. v. Lynch 139 F. Supp. 3d 1075 (N.D. Cal. 2015), No. 4:14-CV-04480-YGR (Bloomberg Law); see generally 18 U.S.C. [section][section] 793, 798 (2018); see infra notes 141-46 and accompanying text.

(129) 18 U.S.C. [section] 793 (2018).

(130) United States v. Harris, 40 C.M.R. 588, 590 (1969).

See Harold Edgar & Bcnno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 930, 998-1000 (1973).

(132) See id. at 1001-02.

(133) See id. at 1027-28.

(134) See Michael D. Becker, The Espionage Act & An Evolving News Media: Why Newspapers that Publish Classified Information May Face Criminal Charges as They Enter the Digital Age, 4 AM. U. NAT'L SEC. L. BRIEF 1,4(2014).

(135) Id. at 5.

(136) See Gorin v. United States, 312 U.S. 19, 28 (1941).

(137) See Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803, 808-09 (N.D. Cal. 2017).

(138) See id.; see e.g., Transparency at Dropbox, supra note 108.

(139) See Budish, supra note 3.

(140) See id.

(141) See Edgar & Schmidt, supra note 131, at 1067-68.

(142) Id; see also Becker, supra note 134, at 5-6.

(143) Edgar & Schmidt, supra note 131, at 1069; see also Becker, supra note 134, at 5-6.

(144) See 18 U.S.C. [section] 798(a) (2018).

(145) 18 U.S.C. [section] 798(b); Cf. Becker, supra note 134, at 6 ("But any national newspaper that covers the intelligence community invariably reports on communication intelligence.").

(146) See supra notes 142-43 and accompanying text.

(147) See 18 U.S.C. [section] 798(a) (2018) ("... Shall be fined under this title or imprisoned not more than ten years, or both).

(148) See Becker, supra note 134, at 1.

(149) See generally NY. Times Co. v. United States, 403 U.S. 713 (1971).

(150) Jonathan Peters & Edson C. Tandoc Jr., "People Who Aren't Really Reporters at All, Who Have No Professional Qualifications": Defining A Journalist and Deciding Who May Claim the Privileges, 2013 N.Y.U. J. LEGIS. & PUB. POL'Y QUORUM 34, 61 (2013).

(151) See U.S. CONST, amend. I.

(152) See Twitter, Inc. v. Lynch, 139 F. Supp. 3d 1075, 1077 (N.D. Cal. 2015).

(153) See Peters & Tandoc, supra note 150, at 47-48.

(154) See id.

(155) See Branzburg v. Hayes, 408 U.S. 665, 702 (1972).

(156) See generally Candice M. Kines, Aiding the Enemy or Promoting Democracy? Defining the Rights of Journalists and Whistleblowers to Disclose National Security Information, 116 W. VA. L. REV. 735, 741 (2013).

(157) See infra Section V, Part C.

(158) Kines, supra note 156, at 764.

(159) Id.

(160) See supra notes 95-102 and accompanying text.

(161) Kines, supra note 156, at 739.

(162) See id. at 739-40.

(163) See id.

(164) Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803, 807 (N.D. Cal. 2017).

(165) Id. at 815.

(166) Nawi Ukabiala, Wikilaw: Securing the Leaks in the Application of First Amendment Jurisprudence to WikiLeaks, 2013 FED. CTS. L. REV. 209, 222 (2013).

(167) Id. at 223.

(168) See Donald Scarinci, First Amendment: Freedom of Speech Prior Restraint, CONST. L. REP., visited May 11, 2018).

(169) Sessions, 263 F. Supp. 3d at 817.

(170) Id. at 806.

(171) Id. at 807-08.

(172) See generally Transparency at Dropbox, supra note 108; Google Transparency Report, supra note 108; Verizon Transparency Report, supra note 110.

(173) See Sessions, 263 F. Supp. 3d at 808.

(174) See Schenck v. United States, 249 U.S. 47 (1919); N.Y. Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665 (1972); see generally supra notes 80-94 and accompanying text.

(175) See Schenck v. United States, 249 U.S. 47 (1919); N.Y. Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665 (1972); see generally supra notes 80-94 and accompanying text.

(176) Paul Klein, Transparency: Social Media is Forcing You to Tell the Truth, FORBES (July 12, 2011, 2:48PM),

(177) Jennifer Shkabatur, Transparency With(out) Accountability: Open Government in the United States, 31 YALE L. & POL'Y REV. 79, 83 (2012).

(178) See id. at 80.

(179) See id.

(180) See id

(181) See generally Transparency at Dropbox, supra note 108; Google Transparency Report, supra note 108; Verizon Transparency Report, supra note 110; see also Weinstein, supra note 111, at 236-37. Twitter wishes to publish more explicit information than the transparency reports of other sites have disclosed. Id.

(182) See Janna Anderson & Lee Rainie, Digital Life in 2025, PEW RES. CTR. (Mar. 11, 2014),

(183) See generally supra notes 20-28 and accompanying text.

(184) Matthew Ingram, Here's Why We Need a First Amendment for Social Platforms, FORTUNE (June 3, 2016)

(185) Id.

(186) See Jessica Rettig, The Struggle for Free Speech in the 21"st Century, U.S. NEWS (Feb 11, 2010, 10:37 AM), https://www.usnews.eom/opinion/articles/2010/02/l 1/the-struggle-for-frce-speech-in-the-21st-ccntury.

(187) See generally supra notes 20-28 and accompanying text.

(188) See Twitter, Inc. v. Holder, 183 F. Supp. 3d 1007, 1014 (N.D. Cal. 2016).

(189) See Lindsay B. Barnes, Comment, The Changing Face of Espionage: Modern Times Call for Amending the Espionage Act, 46 MCGEORGE L. REV. 511, 537 (2014).

(190) See id.

(191) See e.g., supra notes 131-32 and accompanying text.

(192) See generally 50 U.S.C. [section] 1874; see also USA Freedom Act: What's In, What's Out, WASH. POST (June 2, 2015),; see also Amie Stepanovich, The USA Freedom Act: What's in it?, ACCESSNOW (Apr. 29, 2015, 3:11 PM),

(193) See Twitter, Inc. v. Sessions, 263 F. Supp. 3d 803, 808 (N.D. Cal. 2017).

(194) See supra Part V.
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