from the good-for-them dept
In January, the tech companies and the DOJ settled the lawsuit, with the US government agreeing to specific ways in which tech companies could reveal some information on those orders, but in a very limited way. Basically they could reveal some information in "bands." Depending on how they revealed the info, it could be in bands of 250 people or bands of 1,000 people -- but if you chose the 250 option, you also had to lump in National Security Letters (NSLs), making the information even harder to parse. While this was progress over nothing, it was a pretty small step forward.
That's why we were happy to see Twitter come out in February and say that, while those other companies (including Google, Facebook and Microsoft) had agreed to that settlement, it was not good enough for Twitter, and that the company would keep pushing for the right to say how many FISA orders it had received. Apparently those negotiations with the DOJ haven't gone very well, as the company has now sued the US government over the issue. Twitter claims that it even asked for the ability to publish a redacted transparency report, but the DOJ even tried to block that. The full filing is worth reading.
Twitter seeks to lawfully publish information contained in a draft Transparency Report submitted to the Defendants on or about April 1, 2014. After five months, Defendants informed Twitter on September 9, 2014 that “information contained in the [transparency] report is classified and cannot be publicly released” because it does not comply with their framework for reporting data about government requests under the Foreign Intelligence Surveillance Act (“FISA”) and the National Security Letter statutes. This framework was set forth in a January 27, 2014 letter from Deputy Attorney General James M. Cole to five Internet companies (not including Twitter) in settlement of prior claims brought by those companies (also not including Twitter) (the “DAG Letter”).It will be interesting to see how far this lawsuit goes. Unfortunately, the courts are often willing to give great deference to the government when it insists things need to be secret, but there's always a chance that a court may recognize the problematic nature of how the government gags companies in this manner.
The Defendants’ position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether. Defendants provided no authority for their ability to establish the preapproved disclosure formats or to impose those speech restrictions on other service providers that were not party to the lawsuit or settlement.
Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider’s disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA that it has received, if any. In fact, the U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request.
These restrictions constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern. Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of U.S. government officials by providing more complete information about the limited scope of U.S. government surveillance of Twitter user accounts—including what types of legal process have not been received by Twitter—and the DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional speech restrictions.