Judge In Twitter Lawsuit Over Surveillance Disclosure Dings DOJ For Cut-And-Paste Legal Argument
from the government-control-c dept
As you will hopefully recall, there is an ongoing case between Twitter and the government over exactly how specific or not the social media service can be regarding the number of government surveillance requests it receives. Most of the rest of the big internet companies reached a settlement with the DOJ, including rules how specific companies could be (not very) in revealing such requests. Those rules basically were an attempt by the government to get tech companies to play hide-the-ball on transparency issues, in which the more specific a service attempted to be about how many individuals would be impacted by government orders, the more additional orders had to be lumped into those specifics, rendering the information useless.
Twitter, to its credit, was alone in saying that the proposed settlement wasn't good enough, and continued its fight with the DOJ. Essentially, the fight is over whether Twitter can be specific when it discloses how many orders it has received, or whether it must only disclose "bands" or ranges of orders. Recent arguments made by both sides do a nice job of highlighting the absurdity of the government's argument.
Twitter has argued that just as it has been precise in other areas of its transparency report, so too should it be allowed to say how many national security orders it has received from American authorities.
"Even under the most generous First Amendment standard, there is nothing in there that it is a national security harm to say that we received 44 as opposed to 0 to 499," Lee Rubin, a lawyer representing Twitter, said during the Tuesday hearing.
In court filings, DOJ lawyers have said that allowing Twitter to provide this specific level of information would be detrimental to national security. This assertion is according to a declaration filed by Michael Steinbach, the executive assistant director of the national security branch of the FBI, where he argued that "the disclosure of the information at issue would provide our adversaries a clear picture of the Government’s surveillance activities pertaining to national security investigations."
The DOJ has been conditioned through the acceptance of the argument by far too many courts, as well as the court of public opinion, to simply shout "national security" at any challenge to disclosing anything at all. And that's what it's doing here, as well. So much so, in fact, that the judge presiding over the case pointed out that the legal filings the DOJ had offered didn't address any of the specifics Twitter was arguing.
During the Tuesday hearing, US District Judge Yvonne Gonzalez Rogers, an Obama-appointed judge, seemingly rebuked the government at one point and noted that its legal responses did not directly address Twitter’s arguments. "The analysis that has been provided to the court is generic to any company," she said, explaining that there was "nothing in here that is specific to Twitter.
"If I had five different cases, one by Twitter, one my Microsoft, one by Facebook and all the other groups that do this social media stuff that none of us judges do, [Steinbach] could have taken this exact same declaration and cut and paste the declaration, switched out the names of the company and I would have the same generic explanation for why it is that the government wants to do what it wants to do."
There's no ruling yet, although one is expected in the coming months. Still, it doesn't look good to have the judge dinging the DOJ for failing to address Twitter's argument that there is no national security risk in disclosing a specific number of NSLs it receives, as opposed to a range. Perhaps more importantly, it's refreshing to see a challenge to the longstanding tradition of the government being able to simply shout "national security!" at any attempt at transparency to make it go away.