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.