Twitter is Suing the US Government in an Effort to Reveal Surveillance Information

Twitter filed a case in the Northern District of California (docket number 14-cv-04480) on Oct. 7 seeking a court order that would allow the company to reveal more precise information on the scope and numbers of national security letters (NSLs) and FISA court orders the company receives seeking information about its users. Twitter is alleging that the United States government’s efforts to restrict it from revealing this information violates the First Amendment.

“Our ability to speak has been restricted by laws that prohibit and even criminalize a service provider like us from disclosing the exact number of national security letters (NSLs) and Foreign Intelligence Surveillance Act (“FISA”) court orders received — even if that number is zero,” wrote Ben Lee,  Twitter’s vice president for legal affairs, on the company’s blog. “It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.”

The San Francisco-based company argues that the statutory limits are unconstitutional in several ways: as a prior restraint, as a content-based restriction on speech, and as a form of viewpoint discrimination on a matter of national and global public concern.

In April 2014, Twitter submitted a draft Transparency Report that included details on the number of NSLs and FISA court orders the company had received. Last month, the government responded to the draft and informed Twitter that the report contained classified information that could not be publicly released. The government’s response relied on a January 2014 letter to five other service providers from US Deputy Attorney General James M. Cole that outlined an approved framework for reporting data about government requests under FISA and the NSL statutes. The draft report used much narrower ranges to indicate the number of requests for its users’ information than the Cole letter had approved, which generally allowed information on the number of requests to be shared in ranges of 1000 (e.g., 0-999, 1000-1099).

Twitter’s complaint argues that there is a difference between the need to protect the secrecy around specific surveillance targets and investigations (which the statutes clearly cover) and prohibiting the company from disclosing aggregate information about the number of requests and court orders it receives. The company is challenging the latter. The question of whether Twitter’s characterization of the statutes is accurate is winding its way through the Ninth Circuit, so we should have more clarity on that line of argument in the coming months.

The government has 60 days to respond to the complaint. Just Security will be keeping an eye on this case as it progresses. 

About the Author(s)

Megan Graham

Former Assistant Managing Editor and Security, Privacy, and Technology Fellow at Just Security Follow her on Twitter (@meganmcgraham).