Judge Says Twitter Can Move Forward With First Amendment Lawsuit Over NSL Reporting Limitations

from the granular-reporting-sinks-ships dept

Twitter's First Amendment lawsuit against the government for limitations on National Security Letter reporting will be allowed to continue. This is good news for Twitter -- and the general public -- although it's somewhat disheartening to see things have only moved this far in the three years since the lawsuit was filed.

Reporting on NSLs is limited to "bands." A social media service receiving three NSLs has to report it as "0-499." The same goes for a service that receives 300 NSLs over the same period. Twitter is fighting to have these "bands" removed, in order to more accurately report the number of NSLs it receives.

So far, the government's arguments for leaving the bands in place have been as vague as the information tech companies are allowed to release. It asserts -- without evidence -- that reporting the actual number of NSLs (or FISA orders) will harm national security. The fact that NSLs are accompanied by indefinite gag orders grants the government an insane amount of opacity relative to the level of oversight these NSLs receive. NSLs are administrative documents the FBI (and other agencies) can issue themselves, which receive no impartial scrutiny from judges or anyone outside the issuing agency.

The government's attempt to dismiss this lawsuit has failed, so Twitter will be allowed to move forward with its First Amendment lawsuit. The opening of the opinion [PDF] makes it clear the DOJ going to need to come up with a better argument if it hopes to keep this banded opacity in place. (via Ars Technica)

The Court finds the Government has not met its high burden to overcome the strong presumption of unconstitutionality on the record before the Court. The Government’s restrictions on Twitter’s speech are content-based prior restraints subject to the highest level of scrutiny under the First Amendment. The restrictions are not narrowly tailored to prohibit only speech that would pose a clear and present danger or imminent harm to national security. The Government argues that the limitations imposed on Twitter are necessary because disclosure of data concerning the number and type of national security legal process that it received in a time period would impair national security interests and is properly classified. However, the Government has not presented evidence, beyond a generalized explanation, to demonstrate that disclosure of the information in the Draft Transparency Report would present such a grave and serious threat of damage to national security as to meet the applicable strict scrutiny standard.

An unclassified declaration by the director of the FBI's national security branch appears to form the basis for the assertions the court finds lacking. It's basically what's covered above: the information is "properly classified" and releasing it would do damage to national security. Other arguments along the same lines are applied to granular disclosure of received FISA orders. The DOJ points out the First Amendment does not allow possessors of classified information to share it freely.

The court says this bare assertion isn't enough to overcome Twitter's valid First Amendment complaint:

[T]he Court does not agree with the Government’s position that simply determining information meets the requirements for classification under Executive Order 13526 ends the Constitutional analysis. That the information is classified is not, in itself, a sufficient basis for the Government’s prohibition on its disclosure…

The First Amendment requires strict scrutiny of content-based restrictions and prior restraints, regardless of the Government’s basis for nondisclosure.

It's not just the DOJ's public arguments that suck. The court points assertions made behind closed doors have also done nothing to justify the prior restraint.

Here, the declarations of Steinbach, both in camera and public, fail to provide sufficient details indicating that the decision to classify the information in the Draft Transparency Report was based on anything more specific than the reporting bands in section 1874 and the FBI’s position that more granular information “could be expected to harm national security.” The declarations do not provide an indication of grave or imminent harm arising from the disclosures in the Draft Transparency Report. Rather, the concerns raised to relate to the overall concern from one or more of any electronic communication service regardless of the specific provider or circumstance. Merely declaring a view that more granular reporting would create an unacceptable risk does not make it so, especially in light of the Government’s acknowledgement of the strong public interest in the information.

The government is apparently so used to receiving judicial deference it didn't bother to do much more than recite its national security mantras.

Rather, the declaration largely relies on a generic, and seemingly boilerplate, description of the mosaic theory and a broad brush concern that the information at issue will make more difficult the complications associated with intelligence gathering in the internet age.

If the DOJ has an actual, articulable reason for forbidding more precise transparency reporting, it has yet to deliver this argument to the court. However, it's had three years to do so and hasn't produced anything yet. It appears to feel the court should make with the NATSEC deference and toss the case. Now, it's actually going to need to produce some evidence that granular reporting will harm intelligence gathering or harm the nation.


Reader Comments

The First Word

> The DOJ points out the First Amendment does not allow possessors of classified information to share it freely.

As I understand prior reporting, the DOJ has taken an oversimplified position with this claim. Journalistic outlets have on multiple occasions freely shared classified information that was provided to them through channels not approved by the government and, as far as I know, not been held legally liable for that sharing (though doubtlessly they were harassed and sometimes publicly vilified for it). The distinction here seems to be that the government believes it can:

1) Declare a piece of information classified.
2) Provide that information to a party that would rather be left out entirely (Twitter would likely prefer never to receive these classified requests for data, thereby freeing it of any obligation to disclose anything).
3) Declare that the receiving party, who would rather not have known the classified information at all, is still obligated to protect the secrecy of the information solely because the government delivered it through official channels.

Under this theory, it seems like any information the government can find any reason to classify can be kept secret from the public by deliberately disclosing it - with classification markers intact - to venues that would report on it, thereby unwillingly binding them to secrecy. This is crazy.

Possessors of classified information who are properly forbidden from sharing it are notified in advance of their obligations and choose to receive that classified information (and its obligations), usually because choosing not to receive it would get them fired. Possessors of classified information who choose not to receive it, and have made this choice clear to the government agent delivering it anyway, cannot sanely be compelled to keep it secret. In such case, discipline should fall to the agent who knowingly handed it to an entity that declared it wanted not to know and that, if informed anyway, it intended to publish.
—Anonymous Coward

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  • icon
    Bergman (profile), 7 Jul 2017 @ 11:26am

    Classified Evidence of Crimes

    As Snowden, Manning and others have demonstrated, it's horrifyingly commonplace for the US government to classify evidence of criminal wrongdoing, as a means of evading accountability.

    With that in mind, I cannot imagine any risk to national security short of triggering an invasion of our shores that would outweigh the public interest in discovering what our representatives are actually doing in our collective name.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Jul 2017 @ 11:35am

    "But if people know about it they might be upset..."

    Pretty much the only way I can see their argument making even the slightest bit of sense is if you make several assumptions.

    A) The practice itself is vital to national security.

    B) They are sending way more NSL's than people might be able to expect.

    C) If people knew just how many NSL's they were sending there might be enough push-back against the practice to end or at least significantly impact the practice, resulting in far less NSL's.

    I don't believe for so much as a second the first one is true, which rather undercuts the other two, but if it were this would at least make a somewhat passable argument in their favor, and certainly a better one than the baseless assertion they seem to be using now, 'it's a threat to national security because we say it's a threat to national security.'

    Hopefully the judge continues to be unimpressed with the 'National Security' magic words and looks at the arguments and evidence(or lack thereof) on their own merits, and not through the 'The Government Is Always Right' lens they seem to have expected.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jul 2017 @ 11:40am

      Re: "But if people know about it they might be upset..."

      I agree that (A) seems unlikely. To be fair to them, they might have had a few cases where an NSL solved something so expeditiously that they now believe any delay will impede future national security investigations. That does not, to me, say that the use of NSLs is categorically vital to national security.

      (B) seems very likely (else the bands would at least be narrower and other forms of reporting would be permitted). Instead, the government has fought every form of disclosure on principle, suggesting that they have a great deal to hide from the public. It's almost like they're doing something wrong and they're afraid someone will find out.

      I would like to believe (C), but the generally poor progress ending abusive surveillance after its disclosure in other areas makes me think (C) won't happen even if (B) is proved to be true.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jul 2017 @ 11:35am

    > The DOJ points out the First Amendment does not allow possessors of classified information to share it freely.

    As I understand prior reporting, the DOJ has taken an oversimplified position with this claim. Journalistic outlets have on multiple occasions freely shared classified information that was provided to them through channels not approved by the government and, as far as I know, not been held legally liable for that sharing (though doubtlessly they were harassed and sometimes publicly vilified for it). The distinction here seems to be that the government believes it can:

    1) Declare a piece of information classified.
    2) Provide that information to a party that would rather be left out entirely (Twitter would likely prefer never to receive these classified requests for data, thereby freeing it of any obligation to disclose anything).
    3) Declare that the receiving party, who would rather not have known the classified information at all, is still obligated to protect the secrecy of the information solely because the government delivered it through official channels.

    Under this theory, it seems like any information the government can find any reason to classify can be kept secret from the public by deliberately disclosing it - with classification markers intact - to venues that would report on it, thereby unwillingly binding them to secrecy. This is crazy.

    Possessors of classified information who are properly forbidden from sharing it are notified in advance of their obligations and choose to receive that classified information (and its obligations), usually because choosing not to receive it would get them fired. Possessors of classified information who choose not to receive it, and have made this choice clear to the government agent delivering it anyway, cannot sanely be compelled to keep it secret. In such case, discipline should fall to the agent who knowingly handed it to an entity that declared it wanted not to know and that, if informed anyway, it intended to publish.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jul 2017 @ 12:02pm

      Re:

      And this glaringly obvious unconstitutional double standard is quite the human normal.

      The government has already discovered that people will give up liberty under the guise of fighting a foreign enemy. It is a time honored and simple method for oppression.

      Even worse I can get you to agree to giving up your liberty under the guise of protecting you from others or from yourself. It is not difficult in the least, all I need do is associate the "liberty" that I am asking you to give up with something that is terrible sounding.

      Please won't you "think of the children"!?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Jul 2017 @ 12:17pm

      Re:

      Journalistic outlets have on multiple occasions freely shared classified information that was provided to them through channels not approved by the government and, as far as I know, not been held legally liable for that sharing (though doubtlessly they were harassed and sometimes publicly vilified for it).

      Not for lack of trying on the government's part. The Pentagon Papers for example resulted in two newspapers, The New York Times and The Washington Post being on the receiving end of first demands and then lawsuits in an attempt to shut them up, until the matter finally made it's way to the US Supreme Court. Thankfully the SC ruled in favor of the papers/public, but again, not for lack of trying.

      reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 9 Jul 2017 @ 2:24pm

    So, What Happens When...

    some web-based service receives the National Security Letter via some electronic maildrop which is automatically published? The NSL shows up, and if the right person is busy it may be up for a considerable amount of time.

    Of course there also remains the question of how one would prosecute a defendant. You probably have to explain to a jury how the publication was wrong, and the basis for the classification.

    reply to this | link to this | view in chronology ]


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