footnotes file from a word doc

fn.md

#Footnotes in file

1. Brian D. Eyink, Note, Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions with First Amendment Rights , 58 Duke L.J . 473, 481 (2008).
2. US Dept. of Justice Office of the Inspector General, A Review of the Federal Bureau of Investigation's Use of National Security Letters: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009 , 2, 3 August 2014, available at http://www.justice.gov/oig/reports/2014/s1408.pdf (“National security letters are written directives to produce records that the FBI issues to third parties such as telephone companies, Internet service providers, financial institutions, and consumer credit reporting agencies… each NSL statute has special certification and notification requirements when the FBI invokes the statute's nondisclosure provisions. Each NSL statute permits the FBI Director, or the appropriate designee, to prohibit the recipient of an NSL from disclosing to any person that the FBI sought or obtained access to information under the NSL statute.”).
3. Susan Landau, Surveillance or Security 77-78 (2010).
4. Nancy J. King and V.T. Raja, What Do They Really Know About Me in the Cloud? A Comparative Law Perspective on Protectin g Privacy and Security of Sensitive Consumer Data , 50 Am. Bus. L.J. 413, 418 (2013); Paul Ohm, The Future of Digital Evidence Searches and Seizures: The Fourth Amendment In A World Without Privacy , 81 Miss. L.J. 1309, 1315-16 (2012) (describing the migration of data storage from local devices controlled by their users to data centers controlled by providers).
5. Peter P. Swire, The System of Foreign Intelligence Surveillance Law , 72 Geo. Wash. L. Rev. 1306, 1332 (2004).
6. Joshua Kopstein, Silicon Valley’s Surveillance Cure-All: Transparency , The New Yorker (Oct. 1, 2013), http://www.newyorker.com/tech/elements/silicon-valleys-surveillance-cure-all-transparency; Claire Caine Miller, Tech Companies Escalate Pressure on Government to Publish National Security Request Data , The New York Times (Sept. 9, 2013 4:46 PM), http://bits.blogs.nytimes.com/2013/09/09/tech-companies-escalate-pressure-on-government-to-publish-national-security-request-data/.
7. Cyrus Farivar, Apple takes strong privacy stance in new report, publishes rare “warrant canary” , Ars Technica (Nov. 5, 2013 5:52 PM), http://arstechnica.com/tech-policy/2013/11/apple-takes-strong-privacy-stance-in-new-report-publishes-rare-warrant-canary/ (“Apple has become one of the first big-name tech companies to use a novel legal tactic to indicate whether the government has requested user information in conjunction with a gag order. Known as a “warrant canary,” this language is encapsulated on Apple’s fifth page of its new transparency report (PDF), which was published on Tuesday…Warrant canaries work like this: a company publishes a notice saying that a warrant has not been served as of a particular date. Should that notice be taken down, users are to surmise that the company has indeed been served with one. The theory is that while a court can compel someone to not speak (a gag order), it cannot compel someone to lie. The only problem is that warrant canaries have yet to be fully tested in court.”).
8. Nate Cardozo et al., Panel II: Balancing National Security and Transparency in Government Data Collection , 32 Cardozo Arts & Ent. L.J. 813, 813-14 (2014) (“A warrant canary is a statement by a company or any kind of online service provider, that it has not received any of a particular kind of request. For instance, say I run a small server to provide email for my wife and myself. I could have a statement on my website that says I have received zero subpoenas, zero warrants, zero national security letters, and zero national security orders. That statement is true. I have not received any request for my data from the government. That's a warrant canary.”).
9. Canary Watch, FAQ , https://www.canarywatch.org/faq.html (last visited Feb. 12, 2015).
10. 18 U.S.C. § 2709 (c) (2006).
11. 18 USCA § 2709 (c); see also Jack M. Balkin, Old-School/New-School Speech Regulation , 127 Harv. L. Rev . 2296, 2330 fn 148 ( “A recipient may not disclose the fact or the contents of the NSL or the accompanying gag order to anyone (except an attorney representing the recipient) if a senior FBI official certifies that “otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.”).
12. Editorial, My National Security Letter Gag Order, WASH. POST, Mar. 23, 2007, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article /2007/03/22/AR2007032201882.html (“Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorn eys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I ha ve no choice but to look them in the eye and lie.”).
13. Brett Max Kaufman, Twitter’s First Amendment Suit & the Warrant-Canary Question , Just Security (Oct. 10, 2014, 8:42 AM), http://justsecurity.org/16221/twitters-amendment-suit-warrant-canary-question/.
14. U.S. Const. am. 1.
15. 515 U.S. 557 .
16. Boos v. Barry, 485 U.S. 312, 334 (1988).
17. McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014) .
18. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976); Lovell v. City of Griffin, Ga., 303 U.S. 444, 452 (1938);
19. Google Transparency Report , Google, http://www.google.com/transparencyreport/ (last visited Nov. 4, 2014) [hereinafter Google Transparency Report ].
20. Transparency Report , Twitter, https://transparency.twitter.com/ (last visited Nov. 4, 2014).
21. Global Government Requests Report , Facebook, https://www.facebook.com/about/government_requests (last visited Nov. 4, 2014)
22. 2014 Transparency Report , Dropbox , https://www.dropbox.com/transparency (last visited Nov. 4, 2014).
23. Transparency Report , Tumblr , https://www.tumblr.com/transparency (last visited Nov. 4, 2014).
24. Quarterly Transparency Report Archive , Pinterest , https://help.pinterest.com/en/articles/transparency-report-archive (last visited Nov. 4, 2014).
25. Comcast Issues First Transparency Report , Comcast , http://corporate.comcast.com/comcast-voices/comcast-issues-first-transparency-report (last visited Nov. 4, 2014).
26. Craig Timberg, Apple, Facebook, others defy authorities, increasingly notify users of secret data demands after Snowden revelations , The Washington Post (May 1, 2014), http://www.washingtonpost.com/business/technology/apple-facebook-others-defy-authorities-increasingly-notify-users-of-secret-data-demands-after-snowden-revelations/2014/05/01/b41539c6-cfd1-11e3-b812-0c92213941f4_story.html.
27. Jackie Calmes And Nick Wingfield, Tech Leaders and Obama Find Shared Problem: Fading Public Trust The New York Times (Dec. 17, 2013), http://www.nytimes.com/2013/12/18/us/politics/as-tech-industry-leaders-meet-with-obama-nsa-ruling-looms-large.html.
28. David Linthicum, Mobile's next great leap will happen in the cloud , Infoworld (Feb. 25, 2014), http://www.infoworld.com/article/2610484/cloud-computing/mobile-s-next-great-leap-will-happen-in-the-cloud.html.
29. Kimberly D. Bailey, Watching Me: The War on Crime, Privacy, and the State , 47 U.C. Davis L. Rev. 1539, 1567 (2014) (“In 2011, law enforcement agencies in the United States made more than 1.3 million requests to wireless carriers for their subscribers' information.”); ACLU, Cell Phone Location Tracking Public Records Request , https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request (last visited Nov. 6, 2014); Peter Swire & Kenesa Ahmad, "Going Dark" Versus a "Golden Age for Surveillance," Ctr. For Democracy & Tech. (Nov. 28, 2011), https://cdt.org/blog/%E2%80%98going-dark%E2%80%99-versus-a-%E2%80%98golden-age-for-surveillance%E2%80%99/.
30. Nate Cardozo et al., Panel II: Balancing National Security and Transparency in Government Data Collection , 32 Cardozo Arts & Ent. L.J. 813, 813-14 (2014).
31. rsync.net is considered to be the first transparency report, available online at http://www.rsync.net/resources/notices/canary.txt since about 2006. The rsync canary is interesting because in addition to cryptographically signing their canary, they include recent news headlines so that a series of canary posts cannot be created ahead of time & posted.
32. See, e.g., Cheezburger, Cheezburger, Inc., 2014 Transparency Report (Feb. 5, 2015), http://blog.cheezburger.com/community/cheezburger-inc-2014-transparency-report/.
33. Patrick P. Garlinger, Note , Privacy, Free Speech, And The Patriot Act: First And Fourth Amendment Limits On National Security Letters, 84 N.Y.U.L. Rev . 1105, 1117 (2009); Jamie Tomasello, Fighting Back Responsibly , Cloudflare (Feb. 11, 2014) https://blog.cloudflare.com/fighting-back-responsibly/.
34. David S. Kris & J. Douglas Wilson, National security investigations & prosecutions 2d, at §20:8 (2012); Maria Bustillos, What It's Like to Get a National-Security Letter , The New Yorker (June 27, 2013) http://www.newyorker.com/tech/elements/what-its-like-to-get-a-national-security-letter.
35. Doyle, Cong. Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background at 5 (2007), available at http://fas.org/sgp/crs/intel/RL33320.pdf; Edward C. Liu, Cong. Research Serv., Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015 2, 4 (2011), available at http://fas.org/sgp/crs/intel/R40138.pdf.
36. Pub. L. 114-23, 129 Stat 268 (2015).
37. USA FREEDOM Act Pub. L. No. 114-23, 129 Stat. 268 (2015) §603 (amends 50 U.S.C. § 1871 by adding a new section, 604. Public Reporting by Persons Subject to Orders). This new section contains four options for reporting counts of NSLs and FISA orders.
38. Shedding some light on Foreign Intelligence Surveillance Act (FISA) requests , Google (Feb. 3, 2014), http://googleblog.blogspot.com/2014/02/shedding-some-light-on-foreign.html.
39. Cory Doctorow, How to Foil NSA Sabotage: use a dead man’s switch , The Guardian (Sept. 9, 2013 7:25 AM), http://www.theguardian.com/technology/2013/sep/09/nsa-sabotage-dead-mans-switch.
40. Nadia Kayyali, EFF Joins Coalition to Launch Canarywatch.org, EFF (Feb. 2, 2015), https://www.eff.org/deeplinks/2015/01/eff-joins-coalition-launch-canarywatchorg (“’Warrant canary’ is a colloquial term for a regularly published statement that an internet service provider (ISP) has not received legal process that it would be prohibited from saying it had received, such as a national security letter. The term "warrant canary" is a reference to the canaries used to provide warnings in coalmines, which would become sick from carbon monoxide poisoning before the miners would—warning of the otherwise-invisible danger. Just like canaries in a coalmine, the canaries on web pages “die” when they are exposed to something toxic—like a secret FISA court order.”)
41. Jessamyn West, The FBI, and whether they’ve been here or not , Librarian.net (Sept. 9, 2013), http://www.librarian.net/tag/warrantcanary/.
42. Cyrus Farivar, Apple takes strong privacy stance in new report, publishes rare “warrant canary” , Ars Technica (Nov. 5, 2013 5:52 PM), http://arstechnica.com/tech-policy/2013/11/apple-takes-strong-privacy-stance-in-new-report-publishes-rare-warrant-canary/.
43. April Glaser, Apple Issues First Transparency Report, Includes “Warrant Canary” , EFF (Nov. 7, 2013), https://www.eff.org/deeplinks/2013/11/apples-first-transparency-report-gets-warrant-canaries-right.
44. Cory Doctorow, EFF's new certificate authority publishes an all-zero, pre-release transparency report (July 3, 2015), http://boingboing.net/2015/07/03/effs-new-certificate-authori.html (“EFF, Mozilla and pals are launching Let's Encrypt, an all-free certificate authority, in September -- but they've released a transparency report months in advance.”).
45. Andrea Peterson, Here’s why tech companies’ NSA ‘transparency reports’ are mostly a PR stunt , The Washington Post (Jan. 28, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/28/heres-why-tech-companies-nsa-transparency-reports-are-mostly-a-pr-stunt/.
46. We Need to Know, CDT (July 18, 2013), https://cdt.org/insight/we-need-to-know/.
47. Christopher Soghoian, An End to Privacy Theater: Exposing and Discouraging Corporate Disclosure of User Data to the Government , 12 Minn. J.L. Sci. & Tech . 191, 195 (2011).
48. Editorial, My National Security Letter Gag Order, WASH. POST, Mar. 23, 2007, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html (“The inspector general's report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny.”).
49. Matt Apuzzo And Nicole Perlroth, U.S. Relaxes Some Data Disclosure Rules , The New York Times (Jan. 27, 2014), http://www.nytimes.com/2014/01/28/business/government-to-allow-technology-companies-to-disclose-more-data-on-surveillance-requests.html; Carrie Cordero, An Update on the Status of FISA Transparency Reporting , Lawfare (April 23, 2014, 1:21 PM); Ted Ullyot, Facebook Releases Data, Including All National Security Requests , Facebook Newsroom (June 14, 2013) http://newsroom.fb.com/news/2013/06/facebook-releases-data-including-all-national-security-requests.
50. The DOJ letter allows for two options for publication of requests. Under Option One, providers may report aggregate data about 7 categories: “1. Criminal process, subject to no restrictions. 2. The number of NSLs received, reported in bands of 1000 starting with 0-999. 3. The number of customer accounts affected by NSLs, reported in bands of 1000 starting with 0-999. 4. The number of FISA orders for content, reported in bands of 1000 starting with 0-999. 5. The number of customer selectors targeted under FISA content orders, in bands of 1000 starting with 0-999. 6. The number of FISA orders for non-content, reported in bands of 1000 starting with 0-999. 7. The number of customer selectors targeted under FISA non-content orders, in bands of 1000 starting with 0-999. A provider may publish the FISA and NSL numbers every six months. For FISA information, there will be a six-month delay between the publication date and the period covered by the report. For example, a report published on July 1, 2015, will reflect the FISA data for the period ending December 31, 2014. In addition, there will be a delay of two years for data relating to the first order that is served on a company for a platform, product or service (whether developed or acquired) for which the company has not previously received such an order, and that is designated by the government as a ‘New Capability Order.’” Under Option Two, a provider may report aggregate data for only 3 categories: “1. Criminal process, subject to no restrictions. 2. The total number of all national security process received, including all NSL and FISA orders, reported as a single number in the following bands: 0-249 and thereafter in bands of 250. 3. The total number of customer selectors targeted under all national security process, including all NSLs and FISA orders, reported as a single number in the following bands, 0-249, and thereafter in bands of 250.” Letter from Deputy AG to General Counsels at Facebook, Google, LinkedIn, Microsoft, and Yahoo, Jan. 27, 2014 available at http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2014/10/07/National-Security/Graphics/dagletter.pdf. The USA FREEDOM Act passed on June 2, 2015 preserved these bands, with minor changes, in statute, expanding the transparency report publication options for companies.
51. Ben Lee, Taking the fight for #transparency to court , Twitter ( Oct . 7, 2014 5:19 PM) , https://blog.twitter.com/2014/taking-the-fight-for-transparency-to-court.
52. In re: National Security Letter, Under Seal v. Holder (Sealed) , United States Courts for the Ninth Circuit , http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000715 (last visited Jan. 8, 2015).
53. James Ching, NSL's: Twitter, In re National Security Letter, Klayman, Clapper and the USA Freedom Act , Law.com ( Oct . 8, 2014) , http://www.law.com/sites/jamesching/2014/10/08/142/.
54. Supplemental Brief Regarding the USA FREEDOM Act, Twitter v. Lynch, Case No. 14-cv-4480 (N.D. Cal. July 17, 2015); Twitter’s Opening Supplemental Brief On Effect Of Recent Legislation, Twitter v. Lynch, Case No. 14-cv-4480 (N.D. Cal. July 17. 2015).
55. Free Press Amicus Brief in Twitter Suit at 9 available at https://freedom.press/blog/2015/02/our-brief-support-twitters-lawsuit-against-us-government-violating-first-amendment (“Because of the uniquely dual role that technology companies play with respect to government surveillance—at once custodians of Americans’ private data and recipients of government requests for that data—these companies have a critical perspective on the issue.”).
56. Jeff John Roberts, Apple’s “warrant canary” disappears, suggesting new Patriot Act demands , GigaOm (Sept. 18, 2014, 8:17 AM), https://gigaom.com/2014/09/18/apples-warrant-canary-disappears-suggesting-new-patriot-act-demands/.
57. Iain Thomson, Apple’s Warrant Canary Riddle , The Register (Sept. 20, 2014 3:34 PM), http://www.theregister.co.uk/2014/09/20/apples_warrant_canary_is_either_cockup_conspiracy_or_the_antigoogle_selling_point/.
58. Thomas Y. Davies, Recovering The Original Fourth Amendment , 98 Mich. L. Rev. 547, 551 (1999).
59. Jake Vandelist, Note, Status Update: Adapting the Stored Communications Act to a Modern World , 98 Minn. L. Rev. 1536, 1538 (2014).
60. Matthew J. Tokson, The Content/Envelope Distinction in Internet Law , 50 Wm. & Mary L. Rev. 2105, 2112 (2009).
61. Metadata is any information about a message, as opposed to text of the body of the message, which is considered content. Metadata includes information such as the sender’s name and address, the recipient’s name and address, the time the message was sent, the place it was sent from, the place it was sent to, and any information collected on way points along the way, such as email headers logging the email servers which processed the message. The Guardian , A Guardian Guide to Metadata (June 12, 2013 11:52 AM), http://www.theguardian.com/technology/interactive/2013/jun/12/what-is-metadata-nsa-surveillance.
62. Nathaniel Gleicher, Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web , 118 Yale L.J. 1945, 1946 (2009) (“The Electronic Communications Privacy Act of 1986 (ECPA) contains two parts: Title I, the Wiretap Act, which covers wire, oral, and electronic communications in transit; and Title II, the Stored Communications Act (SCA), which covers communications in electronic storage. Because electronic communications are stored in, and travel across, the computers of third parties, their protection under the Fourth Amendment is at best uncertain. ECPA sought to address this uncertainty and to ensure protection for the privacy rights of Internet users.”).
63. Jack Lerner & Michael Frank, Michelle Lee, Diana Wade, The Duty of Confidentiality in the Surveillance Age , 17 J. Internet L . 1, 12, 14 (2014).
64. Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014) available at http://www.pclob.gov/Library/215-Report_on_the_Telephone_Records_Program-2.pdf.
65. Andrew E. Nieland, National Security Letters and the Amended Patriot Act , 92 Cornell L. Rev. 1201, 1213.
66. US Dept. of Justice Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 , 65, March 2008, available at http://www.justice.gov/oig/reports/2014/215-II.pdf; Mike Masnick, When The FISA Court Rejects A Surveillance Request, The FBI Just Issues A National Security Letter Instead , TechDirt (Dec. 30, 2014 4:01 PM), https://www.techdirt.com/articles/20141224/14510929524/when-fisa-court-rejects-surveillance-request-fbi-just-issues-national-security-letter-instead.shtml.
67. Michael Jay Lissner, In Re NSL Under Seal v. Holder (Oct. 8, 2014), http://michaeljaylissner.com/posts/2014/10/08/in-re-nsl/.
68. Michael J. Glennon, National Security and Double Government , 5 Harv. Nat'l Sec. J. 1, 8 (2014).
69. The USA FREEDOM Act now codifies the challenge of nondisclosure provisions, amending 18 USC § 3511 (b) to allow court review. See H. R. 2048, p. 56, “(g) JUDICIAL REVIEW.” available at https://www.congress.gov/114/bills/hr2048/BILLS-114hr2048eh.pdf.
70. 50 USC §3162 as amended by Public Law No. 114-23, 129 Stat. 287, 290 (June 2, 2015).
71. H.R. 2048, THE USA FREEDOM ACT, http://judiciary.house.gov/index.cfm/usa-freedom-act (“Ends bulk collection: Prohibits bulk collection of ALL records under Section 215 of the PATRIOT Act, the FISA pen register authority, and national security letter statutes…Provides strictly limited emergency authorities: Creates new procedures for the emergency use of Section 215 but requires the government to destroy the information it collects if a FISA court application is denied”).
72. Steven G. Bradbury, Understanding The Nsa Programs: Bulk Acquisition Of Telephone Metadata Under Section 215 And Foreign-Targeted Collection Under Section 702 10 ( Lawfare Research Paper Series No. 3 , 2013), available at https://lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2013/08/Bradbury-Vol-1-No-3.pdf .
73. ACLU v. United States DOJ, 265 F. Supp. 2d 20, 23-24 (D.D.C. 2003) (“Finally, the Patriot Act expanded the government's information-gathering powers in at least one other way unrelated to FISA. Section 213 provides explicit authority for federal law enforcement officers to use so-called "sneak-and-peek" warrants. Such warrants allow agents to conduct searches secretly (whether physically or virtually), to observe or copy evidence, and to depart the location searched, generally without taking any tangible evidence or leaving notice of their presence.”); see also Report of the Director of the Administrative Office of the United States Courts on Applications for Delayed-Notice Search Warrants and Extensions , available at http://big.assets.huffingtonpost.com/SneakAndPeakReport.pdf.
74. FBI, Frequently Asked Questions: National Security Letters , http://fas.org/irp/news/2007/03/nsl-faq.html (last visited Jan. 8, 2015).
75. Editorial, Patriot Act Balancing Act , The Washington Post (Sept. 12, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/09/11/AR2007091101973.html.
76. 114 P.L. 23, 129 Stat. 268, 114 P.L. 23, 129 Stat. 268 . See SEC. 604. Public Reporting By Persons Subject To Orders .
77. See infra Part II.C.
78. U.S. Const. amend. I (“prohibits the making of any law... impeding the free exercise of religion, abridging the freedom of speech…[or] infringing on the freedom of the press”).
79. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991); Landmark Communications v. Va., 435 U.S. 829, 838 ( 1978) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)) ("Whatever differences may exist about interpretations of the First Amendment, there is practicall y universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.").
80. Wooley v. Maynard, 430 U.S. 705, 706 (1977).
81. Wooley v. Maynard, 430 U.S. 705, 714 (1977) .
82. Caroline Mala Corbin, Compelled Disclosures , 65 Ala. L. Rev. 1277, 1283 (2014).
83. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976).
84. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989) (regulation of concerts in New York City’s Central Park); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 ( 1976) (State of Virginia seeking to control advertising); Grayned v. City of Rockford, 408 U.S. 104 (1972) (city seeking to regulate noise near schools) .
85. Grayned v. City of Rockford, 408 U.S. 104, 115 (1972).
86. Boos, 485 U.S. at 334.
87. Boos, 485 U.S. at 334.
88. Eugene Volokh, Freedom Of Speech, Permissible Tailoring And Transcending Strict Scrutiny , 144 U. Pa. L. Rev. 2417, 2420 (1996).
89. Geoffrey R. Stone, Content-Neutral Restrictions , 54 U. Chi. L. Rev. 46, 54 (1987) .
90. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295 (1984).
91. Joshua P. Davis & Joshua D. Rosenberg, The Inherent Structure of Free Speech Law , 19 Wm. & Mary Bil l of Rts. J. 131,173 (2010).
92. Grayned, 408 U.S. at 116.
93. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
94. 491 U.S. 781
95. Boos, 485 U.S. at 334.
96. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995).
97. Christopher M. Schultz, Content-Based Restrictions On Free Expression: Reevaluating The High Versus Low Value Speech Distinction, 41 Ariz. L. Rev. 573 (1999)
98. 514 U.S at 347 (citing First Nat'l Bank v. Bellotti, 435 U.S. 765, 786 (1978)).
99. 485 U.S. 312 (1988).
100. Boos v. Barry, 4 85 U.S. 312, 334 ( 1988) (“ We conclude that the display clause of § 22-1115 is unconstitutional on its face. It is a content-based restriction on political speech in a public forum, and it is not narrowly tailored to ser ve a compelling state interest.”).
101. Boos v. Barry , 485 U.S . at 329.
102. Id. at 334.
103. Larry Alexander, Compelled Speech , 23 Const. Commentary 147, 148-49 (2006).
104. Wooley, 430 U.S. at 714 ( quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 636 (1943)).
105. Pac. Gas, 475 U.S. at 17; Wooley, 430 U.S. at 716-17 (quoting Shelton v. Turner, 364 U.S. 479, 488 (1960)) (“Even were we to credit the State's reasons and even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that bro adly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”) (internal quotations omitted).
106. Lucien J. Dhooge, The First Amendment and Disclosure Regulations: Compelled Speech or Corporate Op portunism? , 51 Am. Bus. L.J. 559, 609 (2014).
107. 475 U.S. 1.
108. Pac. Gas & Elec. Co. v. Pub. Utilities Com., 475 U.S. 1, 16 (1986).
109. Pac. Gas, 475 U.S. at 16 (citing Harpe r & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985)).
110. Id. (“Were the government freely able to compel corporate speakers to propound political messages with which they disagree, this protection would be empty, for the government coul d require speakers to affirm in one breath that which they deny in the next.”).
111. 430 U.S. 705.
112. Wooley, 430 U.S. at 717; Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).
113. Id. at 715.
114. Id. at 714 (citing West Virginia Board of Education v. Barnette, 319 U.S. 624, 633-634 (1943)).
115. Id. at 714 (quoting W est Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 636 (1943)).
116. Riley v. National Federation of the Blind, 487 U.S. 781, 797–98 (1988).
117. 515 U.S. at 573 (1995) (quoting Pac. Gas & Elec. Co. v. Pub. Utilities Comm'n of California, 475 U.S. 1, 16 (1986)).
118. 487 U.S. 781 .
119. Id. at 795 (citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974)).
120. Id. at 795 (citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974)).
121. 319 U.S. 624 .
122. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634, 641 (194 3).
123. 323 U.S. 516 .
124. Thomas v. Collins, 323 U.S. 516, 545 (1945).
125. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 ( 1995) ; Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) ; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641 (1943) .
126. Abner S. Greene, The Pledge Of Allegiance Problem , 64 Fordham L. Rev 451, 465 (1995).
127. 447 U.S. 74 .
128. 447 U.S. at 87 .
129. Emerson, The Doctrine of Prior Restraint , 20 Law & Contemp. Probs. 648, 648 (1955).
130. Id. at 655.
131. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).
132. 283 U.S. 697 .
133. Emerson The Doctrine of Prior Restraint , 20 Law & Contemp. Probs. 648, 653 (1955).
134. National security concerns are one restriction recognized by the Court. “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) (quoting Schenck v. United States, 249 U. S. 47, 52 (1919)).
135. Near, 283 U.S. at 716-17 (“The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, imm unity from previous restraints or censorship…That liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct”).
136. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
137. Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
138. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
139. United States v. Pry ba, 674 F. Supp. 1504, 1512 (E.D. Va. 1987) ; Martin H. Redish, The Proper Role Of The Prior Restraint Doctrine In First Amendment Theory , 70 Va. L. Rev. 53, 71 (1984) .
140. N.Y. Times Co. v. United States, 403 U.S. 713 (1971).
141. Id. at 715, 718-19 (1971) (“To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Governmen t hopes to make ‘secure.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for al l time.”).
142. Bruce W. Sanford, Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for Us All 154 (2000).
143. Near, 283 U.S. at 713 (1931).
144. 403 U.S. 713 .
145. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971).
146. Id.
147. See Thomas v. Collins, 323 U.S. 516, 543 (1945) (“The restraint is not small when it is considered what was restrained... There is some modicum of freedom of thought, speech and assembly which all citizens of the Republic may exercise throughout its length and breadth, which no State, nor all together, nor the Nation it self, can prohibit, restrain or impede.”).
148. Haig v. Agee, 453 U.S. 280, 307 (1981).
149. See Kamasinski v. Judicial Review Council, 44 F.3d 106, 111-12 (2d Cir. 1994).
150. Kamasinski v. Judicial Review Council, 44 F.3d 106, 111 (2d Cir. 1994).
151. Id . at 112.
152. Id .
153. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
154. Id. at 421.
155. Id. at 422 (Cardone, J., concurring).
156. Id.
157. Id.
158. Id.
159. United States v. Washington Post Co.; N.Y Times Co., 403 U.S. 713, 719 (1971) (Black, J., concurring).
160. Id.
161. See Reply Memorandum in Further Support of Defendant’s Partial Motion to Dismiss for Appellee at 12,Twitter v. Holder (N. D. Cal March 31, 2015) (No. 14-cv-4480) available at https://www.scribd.com/doc/257807808/twitter-v-holder -govt-reply.
162. Id. at 12-13.
163. In re National Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013).
164. John Doe, Inc. v Mukasey, 549 F.3d 861 (2d Cir 2008) as modified (Mar. 26, 2009).
165. Id. at 866.
166. Id. at 876.
167. Id. at 877.
168. Id. at 870.
169. Id. at 879.
170. 18 U.S.C. § 3511 (2012).
171. TK supra
172. Josh Aas, Let's Encrypt Launch Schedule , Let's Encrypt (June 16, 2015) , https://letsencrypt.org/2015/06/16/lets-encrypt-launch-schedule.html
173. https://letsencrypt.org/2015/07/01/legal-transparency-report.html
174. Mike Masnick, Let's Encrypt Releases Transparency Report -- All Zeroes Across The Board (J uly 2, 2015 6:18 PM), https://www.techdirt.com/articles/20150702/17014131531/lets-encrypt-releases-transparency-report-all-zeroes-across-board.shtml%22%3ELet (“This is actually pretty important for a variety of reasons. First, it clearly acts as something of a warrant canary. And by posting this now, before launch and before there's even been a chance for the government to request information, Let's Encrypt is actually able to say ‘0.’”).
175. 930 F. Supp. 2d 1064 .
176. 930 F. Supp. 2d at 1065 .
177. In re Nat'l Sec. Letter, 930 F. Supp. 2d 1064, 1065 (N.D. Cal. 2013).
178. Id. at 1071.
179. Id. at 1081.
180. Twitter v. Lynch , No. 14-cv-4480 , 2014 WL 5012514 (N.D.Cal.) (Oct. 7, 2014).
181. Cent. Hudson Gas & Elec. Corp. v. Public Serv. Commission, 447 U.S. 557, 562–63 (1980).
182. Pac. Gas & Elec. Co. v. Pub. Utilities Comm'n of California, 475 U.S. 1, 8 (1986) (internal quotations omitted) (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).
183. Helen Norton, Lies and the Constitution , 2012 Sup. Ct. Rev. 161, 171 (2013); Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century , 36 Pepp. L. Rev. 273, 283 (2009).
184. Geoffrey R. Stone, Content Regulation and the First Amendment , 25 Wm. & Mary L. Rev. 189, 194 (1983) (The Court “creates areas of nonprotection only after it affirmatively finds that a particular class of speech d oes not sufficiently further the underlying purposes of the first amendment”).
185. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 760 (1976); Alex Kozinski, Who's Afraid of Commercial Speech? , 76 Va. L. Rev. 627, 634 (1990).
186. 425 U.S. 748 (1976).
187. Cent. Hudson, 447 U.S. at 566.
188. Cent. Hudson Gas, 447 U.S. at 566 (“ In commercial speech cases, then, a four-part analysis has developed. At the outset, we mu st determine whether the First Amendment protects the expression. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whethe r the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”).
189. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980)).
190. Id. at 638 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980)).
191. Cincinnati v. Discovery Network, 507 U.S. 410, 420-22 (1993) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)).
192. 44 Liquormart v. R.I., 517 U.S. 484, 500 (1996).
193. Id. at 502.
194. Id. at 502-03 (“In this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy.”).
195. Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 197 (1999).
196. Riley, 487 U.S. at 796, 798.
197. See Citizens United...expands speech rights of corporations
198. Va. State Bd. of Pharmacy, 425 U.S. at 764.
199. Wooley, 430 U.S. at 715.
200. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977).
201. 430 U.S. at 716 .
202. 430 U.S. at 715.
203. 323 U.S. at 545 .
204. Barnette, 319 U.S. at 634.
205. 319 U.S. at 634 .
206. TK supra
207. 475 U.S. at 16.
208. 475 U.S. at 17
209. Va. State Bd. of Pharmacy, 425 U.S. at 771 (“There is no claim, for example, that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided that they are justified with out reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. Compare Grayned v. City of Rockford, 408 U.S. 104, 116 (1972); United States v. O'Brien, 391 U.S. 367, 377 (1968); and Kovacs v. Cooper, 336 U.S. 77, 85-87 (1949), with Buckley v. Valeo, 424 U.S. 1; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); Cantwell v. Connecticut, 310 U.S., at 304-308; and Saia v. New York, 334 U.S. 558, 562 (1948).”).
210. Rock Against Racism, 491 US at 791.
211. The government appears to have refused to allow Twitter to publish detailed statistics in their transparency report. Jeff John Roberts, Are “warrant canaries” legal? Twitter wants to save tech’s warning signal of government spying , Gigaom (11:32 AM Oct. 10, 2014), https://gigaom.com/2014/10/10/are-warrant-canaries-legal-twitter-wants-to-save-techs-warning-signal-of-government-spying/.
212. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (the government may impose time, place and manner restrictions which are content neutral).
213. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
214. Riley, 487 U.S. at 796.
215. Id. at 798.
216. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
217. See McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014) (“In particular, the guidi ng First Amendment principle that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” applies with full force in a traditional public forum. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, (1972). As a general rule, in such a forum the government may not “selectively . . . shield the public from some kinds of speech on the ground that they are more offensive than others.” Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975)”).
218. Virgi nia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 760 (1976).
219. N.Y. Times Co. v. United States, 403 U.S. 713, 728 (1971).
220. Mike Masnick, Tech Execs Express Extreme Concern That NSA Surveillance Could Lead To 'Breaking' The Internet , Techdirt , https://www.techdirt.com/articles/20141008/17393628774/tech-execs-express-extreme-concern-that-nsa-surveillance-could-lead-to-breaking-internet.shtml.
221. N.Y. Times Co., 403 U.S. at 728 (“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”).
222. Id. at 728.
223. Julian Sanchez, Can We do Without National Security Letters?, Just Security (Jan. 9, 2014 8:15 AM), http://justsecurity.org/5351/national-security-letters/ (“[I]t seems at least as plausible to suppose that when communications and financial records can be vacuumed up subject to a vague and permissive standard with little in the way of external checks, investigators will tend to err on the side of overcollection.”).
224. V a. State Bd. of Pharmacy v. V a. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
225. Va. State B d. of Pharmacy, 425 U.S. at 7 62.
226. 425 U.S. at 762-63 .
227. See the large number of news reports on Apple’s “disappearing canary.” Zack Whittaker, Apple omits 'warrant canary' from latest transparency reports; Patriot Act data demands likely made , ZDNet (Sept. 18, 2014, 12:15 PM), http://www.zdnet.com/apple-omits-warrant-canary-from-latest-transparency-report-suggesting-patriot-act-data-demands-made-7000033840/; Cory Doctorow, Apple's Patriot-Act-detecting "warrant canary" dies , Boing Boing (Sept. 18, 2014, 9:48 AM), http://boingboing.net/2014/09/18/apples-patriot-act-detecting.html; samzenpus, Apple's "Warrant Canary" Has Died , Slashdot (Sept. 18, 2014, 6:34 PM), http://beta.slashd ot.org/story/207407; Mike Masnick, Did Apple Keep Or Remove Its Warrant Canary Concerning PATRIOT Act Requests? , TechDirt (Sept. 18, 2014, 2:35 PM), https://www.techdirt.com/articles/20140918/13363728563/did-apple-keep-remove-its-warrant-canary-concerning-patriot-act-requests.shtml; Colin Lecher, Apple may have quietly signaled that it's received a secret Patriot Act order , The Verge (Sept. 18, 2014 1:28 PM), http://www.theverge.com/2014/9/18/6409575/apple-warrant-canary-patriot-act; Tom Risen, Did the NSA Demand Apple's Data? , US News (Sept. 19, 2014 5:32 PM), http://www.usnews.com/news/articles/2014/09/19/did-the-nsa-demand-apples-data.
228. Marcy Wheeler, About Apple’s Dead Warrant Canary , Empty Wheel (Sept. 18, 2014), htt ps://www.emptywheel.net/2014/09/18/about-apples-dead-warrant-canary/ . Critics have paid close attention to NSL canaries in particular because of concerns about the lack of judicial oversight. See EFF, National Security Letters , Eff , https://www.eff.org/issues/national-security-letters (“ These letters served on communications service providers like phone companies and ISPs allow the FBI to secretly demand data about ordinary American citizens' private communications and Internet activity without any meaningful oversight or prior judicial r eview.”).
229. Riley, 487 U.S. at 796 (1988).
230. Id.
231. Jennifer L. Pomeranz, No Need To Break New Ground: A Response To The Supreme Court's Threat To Overhaul The Commercial Speech Doctrine , 45 Loy. L.A. L. Rev . 389, 412 (2010).
232. Id.
233. Id. at 566.
234. Central Hudson, 447 U.S. at 566.
235. Id. at 573.
236. Id. at 561.
237. The illegal speech referenced here refers to speech held to be outside First Amendment protection because it is “fighting words” as defined in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In that case, speech that does not deserve First Amendment protection is defined as speech “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. N.H., 315 U.S. 568, 572 (1942).
238. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 638 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980)).
239. See, e.g., Finzer v. Barry, 798 F.2d 1450, 1458 (D.C. Cir. 1986) (“We think it clear beyond quibble that since the founding of our nation adherence to the law of nations, and most particularly that branch of the law that demands security for the persons...has been regarded as a fundamental and compelling national interest.”).
240. Nathan Sales, Secrecy and National Security Investigations, 58 ALA. L. REV. 811, 819-21 (2007).
241. Editorial, Patriot Act Balancing Act , The Washington Post (Sept. 12, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/09/11/AR2007091101973.html.
242. Chaplinsky v. N.H., 315 U.S. 568, 572 (1942).
243. 447 U.S. at 564.
244. Nathan Sales, Secrecy and National Security Investigations, 58 ALA. L. REV. 811, 819-21 (2007).
245. Cent. Hudson, 447 U.S. at 565-66.
246. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 638 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980)).
247. Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1305 (1983) .
248. Near v. State o f Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).
249. Id. at 617.
250. “It hardly requires repetition that ‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity’, and that the State ‘carries a heavy burden of showing justification for the imposition of such a restraint.’” Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1305 (1983) (quoting New York Times Co. v. United States, 403 U.S. 713, 714 (1971)).
251. Grayned, 408 U.S. at 116-17.
252. Doe v. Gonzales, 500 F. Supp. 2d 379, 422 (S.D.N.Y. 2007) aff'd in part, rev'd in part and remanded sub nom.as modified (Mar. 26, 2009) John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).
253. Free Press Amicus Brief in Twitter Suit at 16 available at https://freedom.press/blog/2015/02/our-brief-support-twitters-lawsuit-against-us-government-violating-first-amendment
254. Free Press Amicus Brief in Twitter Suit at 5 available at https://freedom.press/blog/2015/02/our-brief-support-twitters-lawsuit-against-us-government-violating-first-amendment
255. Grayned, 408 U.S. at 116.
256. Riley , 487 U.S. at 796 (“ But even assuming, without deciding, that such speech in the abstract is indeed merely "commercial," we do not believe that the speech retains its commercial character whe n it is inextricably intertwined with otherwise fully protected speech. Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.  This is the teaching of  Schaumburg and  Munson , in which we refused to separate the component parts of charitable solicitations from the fully protected whole.”).
257. Rock Against Racism, 491 U.S. at 791.
258. Id.
259. Joshua Kopstein, Silicon Valley’s Surveillance Cure-All: Transparency , The New Yorker (Oct. 1, 2013), http://www.newyorker.com/tech/elements/silicon-valleys-surveillance-cure-all-transparency.
260. TK
261. USA FREEDOM Act Pub. L. No. 114-23, 129 Stat. 268 (2015) §603 (amends 50 U.S.C. § 1871 by adding a new section, 604. Public Reporting by Persons Subject to Orders). This new section contains four options for reporting counts of NSLs and FISA orders.