Judge Tells Twitter Revealing Classified Stats Isn't Protected By 1st Amendment… But Says Twitter Can Challenge Classification

from the inching-forward dept

Back in late 2014, we wrote about Twitter suing the US government over whether or not it was allowed to publish just how many National Security Letters and FISA Court orders it receives in its transparency report. This came after a bunch of other tech companies had settled a similar lawsuit with an agreement that they could reveal certain “bands” of numbers, rather than the specific number. It still boggles the mind that merely revealing the number of NSLs and/or FISC orders received would create any problem for national security, but the government seems hellbent on keeping that information secret. Probably because they don’t want the public to understand how widely this system is used to obtain info.

We had mentioned this case just a few weeks ago, noting that a bunch of companies had filed an amicus brief pointing out that it’s unclear if they can even admit that they’ve never received such a request (i.e., it’s possible that warrant canaries are illegal).

Meanwhile, the DOJ has been trying to get the entire case thrown out because that’s what the DOJ does. Judge Yvonne Gonzalez Rogers has now given a mixed ruling denying some of the DOJ’s motion, but granting a key part concerning Twitter’s First Amendment claim. The good news, though, is that the issue there is at least partially procedural, allowing Twitter to try again.

Twitter had argued, of course, that it has a First Amendment right to publish this information. But the government — and the judge — noted in response that you don’t have a First Amendment right to publish classified information if you are a party that is “subject to secrecy obligations.”

Under Executive Order 13526, information may be classified by the ?original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.?…

The First Amendment does not permit a person subject to secrecy obligations to disclose classified national security information.

That said, the court notes that this is partially a procedural issue, because Twitter can (and perhaps should) first challenge whether or not the classification on those aggregate statistics is appropriate:

The Court agrees with the Government that Twitter has not alleged that the information is not properly classified by the Government. Count I challenges the FISA non-disclosure provisions as being prior restraints of indefinite duration, but the claim does not take into account the fact that a classification decision is necessarily limited in duration by its nature, as the Government asserts. Along those same lines, Count II?s as-applied challenge contends that the FISA nondisclosure provisions are unconstitutional, but does not account for the fact that the Government has refused to permit disclosure of the aggregate numbers on the grounds that the information is classified pursuant to the Executive Order (not because of any FISA order or provision).

Again, Twitter has conceded that the aggregate data is classified. In the absence of a challenge to the decisions classifying that information, Twitter?s Constitutional challenges simply do not allege viable claims.

In short: try again, but this time challenge whether or not the aggregate data is properly classified.

On the two other issues in the case, the DOJ lost both. First, it argued that since it was the FISA Court, and not the DOJ, that classified the statistics, the challenge should be under FISA’s jurisdiction and not the court that it’s in. The court here, disagrees, and points out that Twitter is not challenging a specific FISA ruling, but rather the aggregate data.

The Government does not identify any order of the FISC addressing, as a general matter, publication of aggregate data about receipt of legal process, the crux of the matter before the Court here. Likewise, Twitter?s Amended Complaint does not challenge any prohibition on disclosure in any individual FISC order, FISA directive, or NSL. Rather, Twitter contends that the Government?s reliance on the FISA non-disclosure provisions as a basis for prohibiting disclosure of aggregate data about legal process directed to Twitter violates the First Amendment. Nothing in the Amended Complaint would require the Court to interpret, review, or grant relief from any particular FISC order or directive.

The other DOJ argument was that Twitter did not have standing regarding the Espionage Act. Twitter, in its lawsuit, was seeking declaratory judgment that it is not running afoul of the Espionage Act in publishing such data. It did this because the DOJ had warned Twitter that publishing such data might violate the Espionage Act. Seems fairly straightforward, right? But the DOJ told the court that Twitter’s concerns are “merely speculative” and thus it had no standing on this issue. The court isn’t buying it:

The Court finds that the allegations here?that Twitter presented the draft Transparency Report it planned to publish to the Government and that the Government informed Twitter that it could not publish the information because it is classified?are sufficient to show an ?imminent? injury to establish Twitter?s standing here. The Government?s contention that the threat of prosecution is low because there are other avenues of recourse for Twitter to challenge individual nondisclosure orders simply does not address the issue here, reporting of aggregate data. The motion to dismiss the Espionage Act claim on these grounds is DENIED.

Of course, it’s the First Amendment claims that are the main show here — and without them, the rest of the case is pretty limited. It seems likely that Twitter will file an amended complaint now, arguing that the classification was improper, but then it just becomes a fight over classification, and the government is pretty good about screaming “national security!!!!” at the top of its lungs whenever people challenge classification decisions. The alternative, of course, is that Twitter could appeal the First Amendment decision and see if the appeals court thinks the judge here got that part wrong. Either way, I imagine we’ll find out soon.

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Comments on “Judge Tells Twitter Revealing Classified Stats Isn't Protected By 1st Amendment… But Says Twitter Can Challenge Classification”

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DannyB (profile) says:

Re: bullshit!!

Fortunately, ‘national security’, ‘state secrets’, etc are a shield against the 1st amendment. Because, um, terrorists. Or something.

It is too bad that president Clinton did not think to classify the whole Monica Lewinski thing as a state secret. Isn’t that what state secrets are for? Oh, but that was before 9/11.

It seems like ‘state secrets’ and ‘classified’ are being applied to more and more trivial things every day. Next it will be what the junior assistant white house janitor had for lunch.

If you’re doing nothing wrong, then you’ve got nothing to hide.

DB (profile) says:

I’m confused: who has a secrecy obligation?

It’s obvious that people inside the government with security clearances have that obligation. They must handle classified materials properly. But when you send a warrant to a company, how can you maintain they have an obligation?

I can see exceptions where a company with government work has cleared people and the proper security in place. (That ranges from a simple security container — a approved locking file cabinet — up to a full SCIF.) But we are talking the general case where no one at the company has agreed to keep government secrets.

Anonymous Coward says:

Re: Re:

Negative, in regards to the administration or enforcement of law the government has no powers granted by the Constitution that allow it to demand, command, or prosecute people in regards to secrecy where non government agents are involved!

At best the government can only claim this authority over actual employees of government and even then, when laws are broken that power is voided because the government employee has a greater duty to the citizens to report foul play in government.

In fact all forms of secrecy that leads to foul play in government directly or indirectly causing the breaking of law should be prosecuted as treason. And the reason is because any government agent conducting itself in any way that will clearly lead to criminal breach of law reveals that it means to betray its citizens whom ARE THE COUNTRY!

To many ignorant people believe that the Government is the country when this has never, and will never be true!!!!

Nilt (profile) says:

Re: Re:

This si what I was wondering as well. I know I personally agreed to certain obligations, even as I was signing discharge paperwork from my military service. I can’t see how the government can force a company to be obligated, however, when they don’t wish to be. To me, that is a huge issue all by itself and seems to fly in the face of the First Amendment. If all the government need to to bypass First Amendment protections is classify some information, they’re going to start classifying everything, a practice which appears to be well under way.

Anonymous Coward says:

Re: Re: Re:

Seriously? EMP is at best only a pain in the ass, those SATS do not have enough payload to do anything other than make someone restart their computer. getting a nuke up there would be more practical than getting a device capable of generating an EMP wave of a practical enough size to annoy anything or anyone!

Anonymous Coward says:

The whole idea of being told something you didn’t ask to hear and being told you’re legally obligated not to tell anyone seems patently absurd. If you can be thrown in jail for telling a secret that you never agreed not to tell, then what the fuck is the point of getting anyone officially cleared to view classified information or getting them to sign anything if they can be compelled not to tell anyone whether they signed something or not?

Or are the NDA’s you have to sign just another case of trying to tack on more charges to the same crime that we see in other areas of law enforcement? They make you sign the thing so that in addition to charging you for disclosing the secret they can pile on the charge of violating the contract you signed that said you wouldn’t disclose the secret?

Dave Cortright says:


But Twitter is not “a person”, unless there’s some Citizen’s United-esque legal definition out there.

And +1 on the comments about “a person subject to secrecy obligations”? As a layperson I would presume it to be people who have been given clearance, and thus would not apply to anyone at Twitter. However I’d love to know the legal definition.

Anonymous Coward says:


Let me help you out to why your “But Twitter is not ‘a person'” problem, is a serious problem.

The US Constitution is a document of two major parts, The Articles which establish the Powers Granted to the Government and its Branches, and the Bill of Rights which establish rules that the Government is NEVER allowed or only CONDITIONALLY allowed to even touch with law.

In this case the 1st Amendment in the Bill of Rights makes it clear. When it comes to the Government, The People have a RIGHT to Freedom of the press. This is not lost just because those people happen to be working at Twitter! The idea that a Business just because it is a business creates the concept of the 3rd party doctrine which says all the government needs to do to remove ALL of your rights and privacy is to make sure that you cannot work, live, eat, or exist without the involvement of a 3rd party in some form or fashion where the government says you have freely given your information so that they can take without warrant!

Today’s Americans are hugely ignorant and I dare say the Founder’s would dare not have even attempted to create this nation were they surrounded by the ignorant cowards that exist today! Just the way the American Education systems wants them! Ignorant of the Constitution and Ignorant of their heritage and duties to Liberty! Instead its, sit down shut up and do as we say… oh and don’t offend anyone… that is bad!

nasch (profile) says:


But Twitter is not “a person”, unless there’s some Citizen’s United-esque legal definition out there.

Not new, no. “Person” in a legal context means something more like “entity”. That’s why there’s the term “natural person” to distinguish an actual human from other things the law refers to as persons, such as corporations (I don’t known if there are others).

Jim B. says:

Those are classified stats?

I don’t think so. Are they saying that something involving a private citizen or entity without their approval and commitment that that something can be deemed classified?

This judge is off their rocker. This can be used to ensure that no one speaks about anything because the government can deem it classified. That’s is the very definition of violation of freedom of speech and press.

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