Volume 110

First Amendment Disequilibrium

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes.

Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Introduction

In the fall of 1968, a pair of FBI agents visited New York Times reporter Earl Caldwell.1 1.Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H].Show More At the time, Caldwell was among the most prominent journalists in the country. He was the first Black reporter the Times assigned to cover Martin Luther King, Jr., and the only journalist on the scene when the civil rights leader was shot.2 2.Id.Show More The newspaper had recently assigned him to cover the Black Panther movement, and the FBI agents wanted to know if Caldwell would pass along information about the group. He refused.3 3.Id.Show More A year and a half later, a federal prosecutor subpoenaed him to testify before a grand jury about the movement. Again, he refused, arguing that the First Amendment protected the identity of his confidential sources and his eyewitness observations of the group’s activities.4 4.Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972).Show More

The ensuing legal dispute reached the Supreme Court in 1972.5 5.Id. at 665.Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70.Show More In a set of four consolidated cases, Caldwell and two other reporters argued that a qualified constitutional privilege protected them from being compelled to divulge confidential information.6 6.Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”).Show More Without such protection, the reporters argued, their informational sources would dry up, impairing their ability to keep the electorate informed. The journalists argued that implicit in the constitutional rights of speech and press is a right to gather news and information.7 7.Id. at 680–81, 691–92.Show More

The Supreme Court rejected their privilege claims.8 8.Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline).Show More In a 5-4 decision, the Court held there is no First Amendment privilege allowing reporters to shield confidential sources in response to a grand jury subpoena.9 9.Branzburg, 408 U.S. at 667–68.Show More A central assertion the Court made to justify this conclusion was that such a privilege was unnecessary. Justice Bryon White, writing for the majority, noted that the press had flourished for 200 years without a privilege and had proven capable of engaging in its own self-defense. “[T]he press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm,” he wrote.10 10.Id. at 706.Show More The Court assumed that the press possessed the economic, political, cultural, and social clout needed to protect itself and penetrate government secrecy without judicial assistance.

This is no longer true today. The institutional press has been in free fall for more than two decades.11 11.See infra Section II.A.Show More Cycles of layoffs have stripped talent and expertise from newsrooms, and wide swaths of the country now qualify as “news deserts,” without any local newspapers and often no local press presence at all to keep communities informed and hold government actors accountable.12 12.Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”).Show More Meanwhile, public trust in the media has declined dramatically.13 13.Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4].Show More Even so, Branzburg v. Hayes’s assumptions about press power remain part of the foundational legal backdrop framing the relationship between the executive branch and the press—and, by extension, the public.

This Article reexamines the premises of Branzburg, along with those of other landmark cases and critical legislation addressing government control of information. This body of law includes foundational Supreme Court decisions defining the press’s right to gather news and access government information. It also includes landmark government transparency and accountability legislation, such as federal and state freedom of information laws.14 14.See infra Section I.B.Show More

Revisiting these sources uncovers two key assumptions upon which the government-press legal regime has been built. The first is that the institutional press is a powerful actor capable of asserting its professional interests and checking executive branch overreach at all levels of government—through the courts, via legislation, and by appealing directly to the public in the pages of its own publications.15 15.This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies.Show More The second is that executive branch officials are bound by various internal and external constraints on their ability to keep information secret.

Judges and legislators have long assumed that the combination of a robust press and a constrained executive would establish a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Key First Amendment cases from this era, including Branzburg, New York Times Co. v. United States (The Pentagon Papers Case), and Houchins v. KQED, Inc., embody this view.16 16.See infra Section I.C.Show More Alexander Bickel famously described this as the “disorderly situation.”17 17.Alexander Bickel, The Morality of Consent 80 (1975).Show More Cass Sunstein, in turn, has referred to it as an “equilibrium model of the first amendment.”18 18.Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id.Show More

Both pillars of this constitutional equilibrium have been destabilized in recent years. The power and influence of the institutional press, particularly at state and local levels, has dramatically declined.19 19.See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A.Show More At the same time, many intra- and intergovernmental checks on the executive branch no longer operate as effective constraints against government secrecy.20 20.See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”).Show More This combination of a hollowed-out press and an unchecked executive has given rise to a First Amendment disequilibrium—a development that has been largely overlooked by the courts. The collapse of the institutional press at state and local levels and its further consolidation at the national level, together with the unleashing of many intergovernmental constraints on executive branch secrecy, has undermined a cornerstone of First Amendment law. These developments have jeopardized the press’s ability to check the executive branch and disseminate truthful information to the public.21 21.In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today.Show More

Existing scholarship fails to fully describe the forces destabilizing this equilibrium or the threat they pose to democratic self-governance. A prominent strand of recent First Amendment scholarship highlights how the Roberts Court’s deregulatory turn has contributed to a disordered information ecosystem.22 22.See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”).Show More Based on this diagnosis, scholars and policymakers have sought cures for these disorders in various sources of law, including antitrust law,23 23.See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022).Show More consumer protection law,24 24.See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns).Show More and the laws governing intermediary liability.25 25.See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF].Show More Yet this body of work has not fully captured the extent to which the nation’s information ecosystem is dependent on the body of law—both statutory and constitutional—that defines the rights of the press in the contest for control of information.

Media law scholars have focused more squarely on this legal regime. They have identified the crucial role of legislation in enabling the press to inform the public,26 26.David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press).Show More recognized the inadequacy of constitutional protections for news-gathering,27 27.See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause).Show More and emphasized how the fragility of the press compromises its ability to play its watchdog role.28 28.RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”).Show More Although these scholars have paid close attention to the inadequacy of legal protections for the press, they have not fully examined how the shifting power dynamics in the press-government relationship have contributed to the decay of those legal protections.29 29.There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures).Show More

This Article turns attention to these dynamics. It addresses the causes and consequences of First Amendment disequilibrium.30 30.In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing.See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie).Show More It also offers remedies designed to aid the press in combatting government secrecy, informing the electorate, and checking governmental abuses of power. Revisiting this legal regime reveals how much of the nation’s information infrastructure has been constructed around a set of factual assumptions about the press and the government that no longer hold true. This insight, in turn, opens up new paths for reforming key parts of the public sphere.

The Article proceeds in four parts. Part I describes how the Supreme Court and legislatures of the 1960s and ’70s enshrined into law a “First Amendment equilibrium” that continues to set the terms of the struggle between the press and the executive branch over control of information. It examines the growing power of the press and the adoption of various constraints on the executive’s control of information in the wake of the Vietnam War and Watergate.31 31.See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”).Show More It then maps the ways that assumptions about both the strength of the press and the constraints on government have been baked into the current legal regime. It traces these two assumptions throughout the major press cases of this era, as well as through the construction of the major transparency statutes and intergovernmental checks enacted at both the federal and state levels in this period.

Part II examines the current state of disequilibrium between the government and the press. It describes the collapse of press power and the erosion of many Watergate-era intergovernmental constraints. It then traces the impact of this disequilibrium on various parts of the law, including the law governing access to national security secrets, the protection of confidential sources, and the development of constitutional and statutory rights of information access. In doing so, it also explores the extent to which obsolete assumptions about power dynamics and dependencies within the government-press relationship permeate First Amendment theory in a manner that thwarts today’s press from playing its constitutionally assigned role as government watchdog and enabler of democratic self-governance.

Part III surveys potential critiques of the First Amendment equilibrium model, including the views that this equilibrium is undesirable or unimportant, or that it was a fiction from the start. Part IV then concludes with potential remedies to the current disequilibrium. It asks how we might recalibrate the equilibrium destabilized by the collapse of key segments of the press. It argues that there are two central paths forward: fixing the press, so that there is sufficient public oversight of government; and fixing the law, so that the distortions caused by the press’s decline are minimized.

  1.  Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H]. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972). ↑
  5.  Id. at 665. Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70. ↑
  6.  Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”). ↑
  7.  Id. at 680–81, 691–92. ↑
  8.  Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline). ↑
  9.  Branzburg, 408 U.S. at 667–68. ↑
  10.  Id. at 706. ↑
  11.  See infra Section II.A. ↑
  12.  Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”). ↑
  13.  Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4]. ↑
  14.  See infra Section I.B. ↑
  15.  This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies. ↑
  16.  See infra Section I.C. ↑
  17.  Alexander Bickel, The Morality of Consent 80 (1975). ↑
  18.  Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id. ↑
  19.  See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A. ↑
  20.  See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”). ↑
  21.  In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today. ↑
  22.  See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”). ↑
  23.  See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022). ↑
  24.  See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns). ↑
  25.  See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF]. ↑
  26.  David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press). ↑
  27.  See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause). ↑
  28.  RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”). ↑
  29.  There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures). ↑
  30.  In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing. See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie). ↑

  31.  See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”). ↑

20/20 Hindsight and Looking Ahead: The Vision of the Five Eyes and What’s Next in the “Going Dark” Debate

The so-called “encryption debate” made national headlines in 2016 after Apple Inc. (“Apple”) declined to enable the Federal Bureau of Investigation (“FBI” or “the Bureau”) to unlock an iPhone recovered from one of the shooters involved in a terrorist attack in San Bernardino, California. The debate concerned whether the government should have the authority to compel technology manufacturers to create an “access key” for encrypted messages and share that key with law enforcement. Apple argued that allowing such access would undermine the security features of its products, while the U.S. Department of Justice (“DOJ”) insisted access was necessary to prevent future attacks. An existing dilemma came to the forefront: Should technology companies be able to use forms of encryption so secure that even they lack the keys? Or is such security not worth the possibility of allowing criminals to “go dark” from law enforcement?

While public attention on this issue has waned in recent years, the problem is not going away; instead, answers are needed now more than ever. As recently as December 2023, a leading technology company announced it would use end-to-end encryption (“E2EE”) as a default for calls and messages across some of its platforms. Analyzing the strengths and weaknesses of laws passed in other countries in The Five Eyes provides guidance for how the U.S. may best proceed with future legislation to promote privacy and security on a global scale.

Introduction

In 2015, then-FBI Director James Comey testified before the Senate Judiciary Committee, saying, “There’s no doubt that [the] use of encryption is part of terrorist tradecraft now.”1 1.Adam Nagourney, Ian Lovett & Richard Pérez-Peña, San Bernardino Shooting Kills at Least 14; Two Suspects Are Dead, N.Y. Times (Dec. 2, 2015), https://www.nytimes.com/‌2015/12/03/us/san-bernardino-shooting.html [https://perma.cc/4UJN-B78T].Show More Months earlier, a heavily armed couple had killed fourteen people and seriously injured seventeen others in San Bernardino, California.2 2.Daniel Kahn Gillmor, One of the FBI’s Major Claims in the iPhone Case is Fraudulent, ACLU (Mar. 7, 2016), https://www.aclu.org/news/privacy-technology/one-fbis-major-claims‌-iphone-case-fraudulent [https://perma.cc/YYF5-8UMQ].Show More As part of its investigation, the Bureau obtained a warrant to search an iPhone owned by one of the shooters, but the phone was programmed to automatically delete all data after ten failed password attempts.3 3.Government’s Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search 1–2; Memorandum of Points and Authorities at 1­–2, 4, In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 15-mj-00451 (C.D. Cal. Feb. 16, 2016).Show More Unable to unlock the phone due, in part, to encrypted user data, the FBI requested that Apple rewrite its software to disable security features and install it for investigators to gain access.4 4.See Letter from Tim Cook, CEO of Apple, to Apple Customers (Feb. 16, 2016), https://www.apple.com/customer-letter/ [https://perma.cc/P5G9-5A7N]; Apple’s Tim Cook: Complying with FBI Demand “Bad for America,” CBS News (Feb. 24, 2016, 9:02 PM), https://www.cbsnews.com/news/apples-tim-cook-complying-with-fbi-demand-bad-for-amer‌ica/ [https://perma.cc/59FU-YKXR]; Shara Tibken, Countdown to Doomsday: Apple, FBI Face Off in Court Tuesday, CNET (Mar. 19, 2016, 5:00 AM), https://www.cnet.com/news/‌privacy/apple-fbi-case-encryption-iphone-backdoor-hack-terrorism-privacy-surveillance/ [https://perma.cc/5AFT-H2LW].Show More Apple refused, arguing that deliberately weakening encryption on its devices by creating a “backdoor” through the encryption for law enforcement would make its products more susceptible to hacking by bad actors and foreign governments.5 5.See Reema Shah, Comment, Law Enforcement and Data Privacy: A Forward-Looking Approach, 125 Yale L.J. 543, 543 (2015).Show More

The dispute between Apple and the DOJ is the most prominent example of an ongoing and contentious debate about government regulation of E2EE.6 6.Mallory Knodel, Fred Baker, Olaf Kolkman, Sofía Celi & Gurshabad Grover, Definition of End-to-End Encryption, Internet Eng’g Task Force (June 13, 2022), https://www.ietf.org/‌archive/id/draft-knodel-e2ee-definition-04.html [https://perma.cc/8W7P-FG5L].Show More E2EE describes a secure communication method that prevents third-party access to data transferred from one device to another.7 7.Steven Song, Keeping Private Messages Private: End-to-End Encryption on Social Media, B.C. Intell. Prop. & Tech. F., 2020, at 1, 2.Show More Many forms of encryption can be accessed by anyone with the appropriate decryption key, but E2EE goes beyond other forms of encryption by limiting access to messages and data to only the communicating parties.8 8.How End-to-End Encryption in Google Messages Provides More Security, Google Messages, https://support.google.com/messages/answer/10262381?hl=en [https://perma.cc/‌2H7S-R3GX] (last visited Feb. 25, 2024).Show More E2EE scrambles data so only the sender and intended recipient may read E2EE messages; not even the manufacturer of the communication devices can access such data.9 9.Lucian Armasu, End-to-End Encryption Could’ve Protected Yahoo Mail Users from 2014 Data Breach and NSA Spying, Tom’s Hardware (Oct. 14, 2016), https://www.tomshardware.‌com/news/e2ee-yahoo-mail-hack-spying,32857.html [https://perma.cc/YGQ7-K5G2].Show More E2EE also ensures that data is encrypted before it is sent over a network, avoiding exposure of such communications to bad actors (such as hackers) in the event of a data breach.footnote_id_11_10 In this way, E2EE is considered the gold standard for ensuring consumer privacy. However, E2EE’s airtight seal means law enforcement may not be able to effectively investigate dangerous criminal activity unless the encryption is weakened. The modern encryption debate centers around a challenging dilemma: Should the government be able to compel technology companies to build systems in such a way that permits law enforcement access? Or should considerations about safeguarding privacy be paramount, even at the expense of governmental investigation and oversight?

Over the years, the two sides of the conversation have become increasingly polarized, with law enforcement groups on one side and privacy and civil liberties advocates on the other. Much has been written about the constitutionality of potential solutions to the cryptology debate. This Essay adds a new, unique perspective to the existing literature by discussing it within the context of rapidly evolving technology making E2EE policies instrumental to the lives of most Americans. Part I provides an overview of the debate within the technology and law enforcement communities and describes the failures of Congress to address the issue. Part II evaluates the strength of Australia’s and the United Kingdom’s approaches for addressing the problem. Finally, Part III provides recommendations for what Congress should do to address the encryption debate.

  1.  Sen. Charles E. Grassley Holds a Hearing on Oversight of the Federal Bureau of Investigation, S. Comm. on Judiciary (Dec. 9, 2015), https://congressional.proquest.com/‌cong‌ressional/docview/t65.d40.12090003.s98?accountid=14678 [https://perma.cc/DR82-DB‌N3]. ↑
  2.  Adam Nagourney, Ian Lovett & Richard Pérez-Peña, San Bernardino Shooting Kills at Least 14; Two Suspects Are Dead, N.Y. Times (Dec. 2, 2015), https://www.nytimes.com/‌2015/12/03/us/san-bernardino-shooting.html [https://perma.cc/4UJN-B78T]. ↑
  3.  Daniel Kahn Gillmor, One of the FBI’s Major Claims in the iPhone Case is Fraudulent, ACLU (Mar. 7, 2016), https://www.aclu.org/news/privacy-technology/one-fbis-major-claims‌-iphone-case-fraudulent [https://perma.cc/YYF5-8UMQ]. ↑
  4.  Government’s Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search 1–2; Memorandum of Points and Authorities at 1­–2, 4, In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 15-mj-00451 (C.D. Cal. Feb. 16, 2016). ↑
  5.  See Letter from Tim Cook, CEO of Apple, to Apple Customers (Feb. 16, 2016), https://www.apple.com/customer-letter/ [https://perma.cc/P5G9-5A7N]; Apple’s Tim Cook: Complying with FBI Demand “Bad for America,” CBS News (Feb. 24, 2016, 9:02 PM), https://www.cbsnews.com/news/apples-tim-cook-complying-with-fbi-demand-bad-for-amer‌ica/ [https://perma.cc/59FU-YKXR]; Shara Tibken, Countdown to Doomsday: Apple, FBI Face Off in Court Tuesday, CNET (Mar. 19, 2016, 5:00 AM), https://www.cnet.com/news/‌privacy/apple-fbi-case-encryption-iphone-backdoor-hack-terrorism-privacy-surveillance/ [https://perma.cc/5AFT-H2LW]. ↑
  6.  See Reema Shah, Comment, Law Enforcement and Data Privacy: A Forward-Looking Approach, 125 Yale L.J. 543, 543 (2015). ↑
  7.  Mallory Knodel, Fred Baker, Olaf Kolkman, Sofía Celi & Gurshabad Grover, Definition of End-to-End Encryption, Internet Eng’g Task Force (June 13, 2022), https://www.ietf.org/‌archive/id/draft-knodel-e2ee-definition-04.html [https://perma.cc/8W7P-FG5L]. ↑
  8.  Steven Song, Keeping Private Messages Private: End-to-End Encryption on Social Media, B.C. Intell. Prop. & Tech. F., 2020, at 1, 2. ↑
  9.  How End-to-End Encryption in Google Messages Provides More Security, Google Messages, https://support.google.com/messages/answer/10262381?hl=en [https://perma.cc/‌2H7S-R3GX] (last visited Feb. 25, 2024). ↑

  10.  Lucian Armasu, End-to-End Encryption Could’ve Protected Yahoo Mail Users from 2014 Data Breach and NSA Spying, Tom’s Hardware (Oct. 14, 2016), https://www.tomshardware.‌com/news/e2ee-yahoo-mail-hack-spying,32857.html [https://perma.cc/YGQ7-K5G2]. ↑

Cyber Vulnerabilities as Trade Secrets

Can a cybersecurity vulnerability—like a bug in code or a backdoor into a system—be a trade secret? Claiming a flaw as a trade secret may sound strange. Usually, talk of trade secrets conjures up images of scientists in laboratories or complex computer algorithms. But nothing in the definition of a trade secret excludes vulnerabilities. As the electronic theft of company secrets increases, recognizing cyber vulnerabilities as trade secrets could play an important role in safeguarding business information. For companies that depend on trade secret protections, increased digitalization means that their trade secrets may be exposed. And this exposure could result not only in diminished legal protections but also in a devastating loss of company profits, strategic advantage, or cutting-edge research. This Essay proposes that recognizing cyber vulnerabilities as trade secrets can limit those harms and protect important company information.

Introduction

Every year, trade secret theft costs American businesses between $225 billion and $600 billion.1 1.Fed. Bureau of Investigation, Executive Summary—China: The Risk to Corporate America (2019), https://www.fbi.gov/file-repository/china-exec-summary-risk-to-corporate-america-2019.pdf/view [https://perma.cc/93BF-FGZR].Show More Some of the thefts are perpetrated from the inside, like by a disgruntled employee who takes confidential files with him to his next job. But a significant portion of this figure comes from cyber espionage—digitally stealing confidential information or trade secrets from a commercial entity.2 2.See, e.g., Nicole Sganga, Chinese Hackers Took Trillions in Intellectual Property from About 30 Multinational Companies, CBS News (May 4, 2022, 12:01 AM), https://www.cbs‌news.com/news/chinese-hackers-took-trillions-in-intellectual-property-‌from-about-30-multi‌national-companies/ [https://perma.cc/WT93-T5HL] (noting that “[t]he CCP continues to increase its theft of U.S. technology and intellectual property” via hacking operations).Show More The digitalization of business records and data assist this form of cyber theft.3 3.Tim Maurer & Arthur Nelson, The Global Cyber Threat, Fin. & Dev. 24, 25 (Mar. 2021), https://www.imf.org/en/Publications/fandd/issues/2021/03/global-cyber-threat-to-financial-systems-maurer [https://perma.cc/6DN4-3YQR].Show More No longer do thieves need to break into a company’s offices and sneak out with physical files. Now, the crime can happen from anywhere, including the other side of the world.4 4.See, e.g., Phil Mercer, China Accused of Economic Espionage on an Unprecedented Scale, VOA News: East Asia (Oct. 18, 2023, 2:39 AM), https://www.voanews.com/a/china-accused-of-economic-espionage-on-an-unprecedented-scale/7315625.html [https://perma.cc/5ZPY-K‌4EV].Show More And as companies increase the amount of information they store digitally, “they have more bits and bytes worth stealing.”5 5.Corporate Espionage Is Entering a New Era, Economist (May 30, 2022), https://www.‌economist.com/business/2022/05/30/corporate-espionage-is-entering-a-new-era [https://perm‌a.cc/8NJ3-S4T8].Show More

Accompanying this increase in corporate espionage is an increase in the kinds of businesses targeted. The world of corporate spying is “no longer cent[e]red on a few ‘sensitive’ industries, such as defen[s]e and pharmaceuticals.”6 6.Id.Show More Any business is at risk of having its proprietary information electronically stolen. Instead of a rarity, corporate espionage has “become a general business risk.”7 7.Id.Show More

On top of the direct economic costs of corporate spying, this increase in cyber espionage greatly reduces companies’ incentives for innovation and investment.8 8.Steve Morgan, Global Cybercrime Damages Predicted to Reach $6 Trillion Annually by 2021, Cybercrime Mag. (Oct. 26, 2020), https://cybersecurityventures.com/annual-cyber‌crime-report-2020/ [https://perma.cc/JG3C-Q8WL].Show More And understandably so. There is less incentive to devote resources to research and development if that research, or any related proprietary information, could be compromised in a cyberattack. A competitor hiring a hacker to break into your system and steal your cutting-edge research is the modern-day version of a competitor hiring a photographer to take aerial photographs of your company’s new factory from an airplane. (Yes, that actually happened.)9 9.See E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1013 (5th Cir. 1970).Show More A foreign government may target American companies’ data to help their own businesses “catch up with advanced U.S. technology.”10 10.Eamon Javers, Inside China’s Spy War on American Corporations, CNBC (June 21, 2023, 9:10 PM), https://www.cnbc.com/2023/06/21/inside-chinas-spy-war-on-american-corporatio‌ns.html [https://perma.cc/LXB2-3MCU].Show More Or a cybercriminal may target your data in the hopes of selling it to a third party for a profit.11 11.See, e.g., United States v. Genovese, 409 F. Supp. 2d 253, 255 (S.D.N.Y. 2005) (describing defendant’s charges for attempting to resell Microsoft source code on his personal website).Show More Given the range of threats, keeping trade secrets “safely locked in the digital vault can be devilishly difficult.”12 12.Corporate Espionage Is Entering a New Era, supra note 5.Show More

Fortunately for companies, trade secret law has developed rapidly over the last few decades to provide robust protection against these thefts. The Economic Espionage Act was passed in 1996 to “protect the trade secrets of all businesses operating in the United States, foreign and domestic alike, from economic espionage and trade secret theft and deter and punish those who would intrude into, damage, or steal from computer networks.”13 13.President William J. Clinton, Statement on Signing the Economic Espionage Act of 1996, 32 Weekly Comp. Pres. Doc. 2040 (Oct. 11, 1996), reprinted in 1996 U.S.C.C.A.N. 4034.Show More The Computer Fraud and Abuse Act, most recently amended in 2008, allows for both criminal charges and civil suits against anyone who breaks into a computer “without authorization or exceeding authorized access.”14 14.18 U.S.C. § 1030(a)(1).Show More Nearly all fifty states have adopted the Uniform Trade Secrets Act (“UTSA”),15 15.Trade Secrets Act Enactment Map, Unif. L. Comm’n, https://www.uniformlaws.org/‌committees/community-home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792 [https://perma.cc/ML7V-BSCT] (last visited Feb. 26, 2024).Show More and Congress passed a federal version of the UTSA—the Defend Trade Secrets Act—in 2016.16 16.Defend Trade Secrets Act, Pub. L. No. 114-153, 130 Stat. 376 (2016).Show More So if a company’s top-secret formula is stolen, the legal system affords the company a variety of ways to remedy the issue.

But the problem of corporate espionage is not limited to stealing data or research outright. Though companies spent $219 billion globally on cybersecurity defenses in 2022,17 17.Matt Kapko, Global Cybersecurity Spending to Top $219B This Year: IDC, Cybersecurity Dive (Mar. 17, 2023), https://www.cybersecuritydive.com/news/cybersecurity-spending-increase-idc/645338/ [https://perma.cc/6TV9-D7QT].Show More there is no such thing as perfect cybersecurity, meaning that vulnerabilities—weaknesses in a system that can be exploited by an attacker—exist in any system.18 18.Jay Pil Choi, Chaim Fershtman & Neil Gandal, Network Security: Vulnerabilities and Disclosure Policy, 58 J. Indus. Econ. 868, 869 (2010).Show More Rather than hacking into a system and selling the data or information located within, some cybercriminals try to monetize these flaws by selling hacking tools, hidden exploits, or discovered system vulnerabilities on the black market.19 19.See, e.g., Kate O’Flaherty, Notorious Hacking Forum and Black Market Darkode is Back Online, Forbes (Apr. 10, 2019, 12:06 PM), https://www.forbes.com/sites/kateoflahertyuk/20‌19/04/10/notorious-hacking-forum-darkode-is-back-online/ [https://perma.cc/‌LX4Y-HY8J] (discussing a site on the black market which “serves as a venue for the sale & trade of hacking services, botnets, malware, and illicit goods and services”).Show More This market for previously undiscovered software flaws (otherwise known as zero-day vulnerabilities) is of particular concern because, unlike data theft, it is unregulated.20 20.Tom Gjelten, In Cyberwar, Software Flaws are a Hot Commodity, NPR (Feb. 12, 2013, 3:25 AM), https://www.npr.org/2013/02/12/171737191/in-cyberwar-software-flaws-are-a-ho‌t-commodity#:~:text=In%20the%20context%20of%20escalating,inside%20his%20‌ene‌my%‌27s%20computer%20network [https://perma.cc/JT9J-NZSL].Show More

Currently, there is a private market for weeding cybersecurity vulnerabilities out of companies’ systems. Some cyber specialists, often dubbed “white hat hackers,” search company systems and equipment for vulnerabilities and report their findings to the company, sometimes for a small reward.21 21.Chris Teague, White Hat Hacker Cracked Toyota’s Supplier Portal, Autoblog (Feb. 8, 2023, 9:35 AM), https://www.autoblog.com/2023/02/08/white-hat-hacker-toyota-supplier-po‌rtal/ [https://perma.cc/B8V2-7NPE].Show More More proactive companies hire hacking specialists to find weak spots in their systems so they can address these issues before they are exploited.22 22.David Rudin, Safety Net: Hackers for Hire Help Companies Find Their Weak Spots, Fin. Post (Mar. 3, 2023), https://financialpost.com/cybersecurity/hackers-help-companies-find-we‌ak-spots [https://perma.cc/HPV2-H3D9].Show More

But the private market goes both ways: just as some hackers choose to sell their findings back to the company whose system is at risk, others choose to sell the information to competitor companies, foreign governments, or other interested parties.23 23.Andi Wilson, Ross Schulman, Kevin Bankston & Trey Herr, New Am., Cybersecurity Initiative, Open Tech. Inst., Bugs in the System: A Primer on the Software Vulnerability Ecosystem and Its Policy Implications 15–18 (2016), https://www.newamerica.org/oti/policy-papers/bugs-system/ [https://perma.cc/53AM-DYRN].Show More And for good reason—the price on the black market for vulnerabilities is often ten to one hundred times higher than on the white market.24 24.Lillian Ablon, Martin C. Libicki & Andrea A. Golay, Markets for Cybercrime Tools and Stolen Data: Hacker’s Bazaar 26 (2014).Show More As the black market for vulnerabilities grows, companies’ proprietary information is put increasingly at risk.

Unfortunately, due to the lack of regulation of this market, there has been little stopping the growth in corporate espionage. Existing suggestions in academic literature for tackling the global trade in zero-day vulnerabilities include criminalization,25 25.Mailyn Fidler, Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis, 11 I/S: J.L. & Pol’y for Info. Soc’y 405, 424 (2015).Show More regulation through export controls,26 26.Id. at 432.Show More and “increasing the payouts offered on the white market through a combination of liability protections, tax benefits, and subsidies.”27 27.Nathan Alexander Sales, Privatizing Cybersecurity, 65 UCLA L. Rev. 620, 620 (2018).Show More This Essay offers a simple alternative—or supplement—to these options: protecting cyber vulnerabilities through trade secret law.

By correctly applying trade secret law to zero-day vulnerabilities, companies will be afforded many options to protect their cybersecurity weaknesses from falling into the hands of their competitors or the public. A company whose system has been poked and prodded for vulnerabilities could bring trade secret claims under the applicable law, which could award them not only damages but also an injunction to prevent disclosure or use of the weakness. Federal trade secret law also allows for courts to issue warrants for property seizure, which could prevent the offending individual or organization not only from disseminating the vulnerability but also from conducting further operations.28 28.18 U.S.C. § 1836(b)(2)(A)(i).Show More Under the Economic Espionage Act or Computer Fraud and Abuse Act, an offending hacker—or competitor who knowingly uses stolen information—could be held criminally liable.29 29.Id. §§ 1832, 1030(a), (c).Show More Trade secret law provides companies with many powerful tools for combatting the growing vulnerability black market. By treating vulnerabilities as trade secrets, the legal system will provide companies with far more protections for their systems’ weaknesses than currently exist. This, in turn, will help protect their underlying research and data.

One case has contemplated the application of cybercrime law to system vulnerabilities. In 2008, three undergraduate students at the Massachusetts Institute of Technology (“MIT”) planned to present research at a cybersecurity conference that exposed “weaknesses in common subway fare collection systems,” particularly the Massachusetts Bay Transportation Authority (“MBTA”).30 30.Complaint at 1, 7, Mass. Bay Transp. Auth. v. Anderson, No. 08-cv-11364 (D. Mass. Aug. 8, 2008).Show More Their demonstration promised to “present several attacks to completely break the CharlieCard” (the MBTA’s subway card), “release several open source tools [they] wrote to perform these attacks,” and reveal “how [they] broke these systems.”31 31.Id. at 7.Show More

Ironically, the students’ presentation included a slide with the text: “What this talk is not: evidence in court (hopefully).”32 32.Complaint, Exhibit 7 at 3, Mass. Bay Transp. Auth., No. 08-cv-11364 (emphasis added).Show More But before they could give their presentation, the MBTA sued, alleging the students’ research violated the Computer Fraud and Abuse Act (“CFAA”).33 33.Complaint, supra note 30, at 12.Show More Though the MBTA was initially granted a temporary restraining order, the U.S. District Court for the District of Massachusetts later denied the MBTA’s request for a preliminary injunction and dissolved the restraining order, finding that discussing the system’s vulnerabilities was likely not the sort of “transmission” covered by the CFAA.34 34.Transcript of Motion Hearing at 60, 65, Mass. Bay Transp. Auth., No. 08-cv-11364(D. Mass. Aug. 19, 2008).Show More

But the District of Massachusetts’s ruling is not the end-all-be-all for legal protection of vulnerabilities. The MBTA brought suit under the Computer Fraud and Abuse Act, not the Uniform Trade Secrets Act, as Massachusetts had yet to adopt the UTSA.35 35.Complaint, supra note 30, at 12.Show More Nearly a decade later, the Massachusetts legislature passed the Massachusetts Uniform Trade Secrets Act, bringing it up to speed with forty-eight other states.36 36.Aaron Nicodemus, Massachusetts Adopts Uniform Trade Secret Law, Bloomberg L. (Aug. 16, 2018, 5:29 PM), https://news.bloomberglaw.com/ip-law/massachusetts-adopts-unif‌orm-trade-secrets-law [https://perma.cc/FYS3-QAG4]. New York has not adopted the Uniform Trade Secrets Act and instead still relies on common law tort claims. Though North Carolina has not adopted the UTSA, it is counted as one of the forty-nine because its state trade secrets law is very similar to the UTSA. See Christopher T. Zirpoli, Cong. Rsch. Serv., IF12315, An Introduction to Trade Secrets Law in the United States (2023).Show More

Under the UTSA, the court’s decision to dissolve the temporary restraining order and deny preliminary injunctive relief could have come out very differently. A vulnerability or weakness in a company’s cybersecurity could qualify as a trade secret under the UTSA. Not only will recognizing vulnerabilities as trade secrets protect against innocent disclosures of proprietary information, as in the MBTA case, but it will also help reduce the growing threat of cyber espionage and weaken the market for vulnerabilities.

Part I of this Essay explains why vulnerabilities ought to qualify for trade secret protections under the definition of a trade secret in the Uniform Trade Secrets Act. Part II makes a normative argument for including vulnerabilities in trade secret protection. The Essay concludes by briefly revisiting the MBTA case to show how affording vulnerabilities protection under the UTSA would prevent future harms to the MBTA.

  1.  Fed. Bureau of Investigation, Executive Summary—China: The Risk to Corporate America (2019), https://www.fbi.gov/file-repository/china-exec-summary-risk-to-corporate-america-2019.pdf/view [https://perma.cc/93BF-FGZR]. ↑

  2.  See, e.g., Nicole Sganga, Chinese Hackers Took Trillions in Intellectual Property from About 30 Multinational Companies, CBS News (May 4, 2022, 12:01 AM), https://www.cbs‌news.com/news/chinese-hackers-took-trillions-in-intellectual-property-‌from-about-30-multi‌national-companies/ [https://perma.cc/WT93-T5HL] (noting that “[t]he CCP continues to increase its theft of U.S. technology and intellectual property” via hacking operations). ↑

  3.  Tim Maurer & Arthur Nelson, The Global Cyber Threat, Fin. & Dev. 24, 25 (Mar. 2021), https://www.imf.org/en/Publications/fandd/issues/2021/03/global-cyber-threat-to-financial-systems-maurer [https://perma.cc/6DN4-3YQR]. ↑
  4.  See, e.g., Phil Mercer, China Accused of Economic Espionage on an Unprecedented Scale, VOA News: East Asia (Oct. 18, 2023, 2:39 AM), https://www.voanews.com/a/china-accused-of-economic-espionage-on-an-unprecedented-scale/7315625.html [https://perma.cc/5ZPY-K‌4EV]. ↑
  5.  Corporate Espionage Is Entering a New Era, Economist (May 30, 2022), https://www.‌economist.com/business/2022/05/30/corporate-espionage-is-entering-a-new-era [https://perm‌a.cc/8NJ3-S4T8]. ↑
  6.  Id. ↑
  7.  Id. ↑
  8.  Steve Morgan, Global Cybercrime Damages Predicted to Reach $6 Trillion Annually by 2021, Cybercrime Mag. (Oct. 26, 2020), https://cybersecurityventures.com/annual-cyber‌crime-report-2020/ [https://perma.cc/JG3C-Q8WL]. ↑
  9.  See E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1013 (5th Cir. 1970). ↑
  10.  Eamon Javers, Inside China’s Spy War on American Corporations, CNBC (June 21, 2023, 9:10 PM), https://www.cnbc.com/2023/06/21/inside-chinas-spy-war-on-american-corporatio‌ns.html [https://perma.cc/LXB2-3MCU]. ↑
  11.  See, e.g., United States v. Genovese, 409 F. Supp. 2d 253, 255 (S.D.N.Y. 2005) (describing defendant’s charges for attempting to resell Microsoft source code on his personal website). ↑
  12.  Corporate Espionage Is Entering a New Era, supra note 5. ↑
  13.  President William J. Clinton, Statement on Signing the Economic Espionage Act of 1996, 32 Weekly Comp. Pres. Doc. 2040 (Oct. 11, 1996), reprinted in 1996 U.S.C.C.A.N. 4034. ↑
  14.  18 U.S.C. § 1030(a)(1). ↑
  15.  Trade Secrets Act Enactment Map, Unif. L. Comm’n, https://www.uniformlaws.org/‌committees/community-home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792 [https://perma.cc/ML7V-BSCT] (last visited Feb. 26, 2024). ↑
  16.  Defend Trade Secrets Act, Pub. L. No. 114-153, 130 Stat. 376 (2016). ↑
  17.  Matt Kapko, Global Cybersecurity Spending to Top $219B This Year: IDC, Cybersecurity Dive (Mar. 17, 2023), https://www.cybersecuritydive.com/news/cybersecurity-spending-increase-idc/645338/ [https://perma.cc/6TV9-D7QT]. ↑
  18.  Jay Pil Choi, Chaim Fershtman & Neil Gandal, Network Security: Vulnerabilities and Disclosure Policy, 58 J. Indus. Econ. 868, 869 (2010). ↑
  19.  See, e.g., Kate O’Flaherty, Notorious Hacking Forum and Black Market Darkode is Back Online, Forbes (Apr. 10, 2019, 12:06 PM), https://www.forbes.com/sites/kateoflahertyuk/20‌19/04/10/notorious-hacking-forum-darkode-is-back-online/ [https://perma.cc/‌LX4Y-HY8J] (discussing a site on the black market which “serves as a venue for the sale & trade of hacking services, botnets, malware, and illicit goods and services”). ↑
  20.  Tom Gjelten, In Cyberwar, Software Flaws are a Hot Commodity, NPR (Feb. 12, 2013, 3:25 AM), https://www.npr.org/2013/02/12/171737191/in-cyberwar-software-flaws-are-a-ho‌t-commodity#:~:text=In%20the%20context%20of%20escalating,inside%20his%20‌ene‌my%‌27s%20computer%20network [https://perma.cc/JT9J-NZSL]. ↑
  21.  Chris Teague, White Hat Hacker Cracked Toyota’s Supplier Portal, Autoblog (Feb. 8, 2023, 9:35 AM), https://www.autoblog.com/2023/02/08/white-hat-hacker-toyota-supplier-po‌rtal/ [https://perma.cc/B8V2-7NPE]. ↑
  22.  David Rudin, Safety Net: Hackers for Hire Help Companies Find Their Weak Spots, Fin. Post (Mar. 3, 2023), https://financialpost.com/cybersecurity/hackers-help-companies-find-we‌ak-spots [https://perma.cc/HPV2-H3D9]. ↑
  23.  Andi Wilson, Ross Schulman, Kevin Bankston & Trey Herr, New Am., Cybersecurity Initiative, Open Tech. Inst., Bugs in the System: A Primer on the Software Vulnerability Ecosystem and Its Policy Implications 15–18 (2016), https://www.newamerica.org/oti/policy-papers/bugs-system/ [https://perma.cc/53AM-DYRN]. ↑
  24.  Lillian Ablon, Martin C. Libicki & Andrea A. Golay, Markets for Cybercrime Tools and Stolen Data: Hacker’s Bazaar 26 (2014). ↑
  25.  Mailyn Fidler, Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis, 11 I/S: J.L. & Pol’y for Info. Soc’y 405, 424 (2015). ↑
  26.  Id. at 432. ↑
  27.  Nathan Alexander Sales, Privatizing Cybersecurity, 65 UCLA L. Rev. 620, 620 (2018). ↑
  28.  18 U.S.C. § 1836(b)(2)(A)(i). ↑
  29.  Id. §§ 1832, 1030(a), (c). ↑
  30.  Complaint at 1, 7, Mass. Bay Transp. Auth. v. Anderson, No. 08-cv-11364 (D. Mass. Aug. 8, 2008). ↑
  31.  Id. at 7. ↑
  32.  Complaint, Exhibit 7 at 3, Mass. Bay Transp. Auth., No. 08-cv-11364 (emphasis added). ↑
  33.  Complaint, supra note 30, at 12. ↑
  34.  Transcript of Motion Hearing at 60, 65, Mass. Bay Transp. Auth., No. 08-cv-11364 (D. Mass. Aug. 19, 2008). ↑
  35.  Complaint, supra note 30, at 12. ↑

  36.  Aaron Nicodemus, Massachusetts Adopts Uniform Trade Secret Law, Bloomberg L. (Aug. 16, 2018, 5:29 PM), https://news.bloomberglaw.com/ip-law/massachusetts-adopts-unif‌orm-trade-secrets-law [https://perma.cc/FYS3-QAG4]. New York has not adopted the Uniform Trade Secrets Act and instead still relies on common law tort claims. Though North Carolina has not adopted the UTSA, it is counted as one of the forty-nine because its state trade secrets law is very similar to the UTSA. See Christopher T. Zirpoli, Cong. Rsch. Serv., IF12315, An Introduction to Trade Secrets Law in the United States (2023). ↑

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