US Government Seeks to Deny Twitter’s “Warrant Canary” Challenge

On Friday, the Justice Department asked a federal district court to brush away a lawsuit filed in October by Twitter seeking greater freedom to publicly report on the numbers and types of surveillance requests it receives from the government, including the right to disclose that it has received “zero” of particular types of requests.

As Just Security readers may recall, Twitter filed a First Amendment suit challenging various aspects of the reporting regime the government and several major technology companies had established for the public accounting of national-security and law-enforcement surveillance requests received by those companies. Twitter was not one of the companies that agreed to the government’s reporting rules, which require firms to report the number of national-security requests received in large bands—a structure that Twitter contends obscures the transparency value of the reporting.

As I noted at the time of Twitter’s filing: 

In one sense, . . . Twitter’s new suit is the latest in a line of cases challenging national-security-related gag orders under the First Amendment—a suit plainly special because of the plaintiff (a high-profile technology company, rather than an anonymous recipient of a surveillance request), but not entirely original as a species of litigation.

In another sense, though—and through a close reading of its complaint—Twitter’s suit is seeking to establish something quite different than the NSL cases: a constitutional right to truthfully inform its customers and the broader public that it has not received particular types of surveillance requests. In other words, Twitter is seeking judicial endorsement of its right to publish a “warrant canary.” What’s a warrant canary? As EFF explains, a warrant canary “is a colloquial term for a regularly published statement that a service provider has not received legal process that it would be prohibited from saying it had received. Once a service provider does receive legal process, the speech prohibition goes into place, and the canary statement is removed,” thereby informing the public that the process has been received.

The government’s new filing largely avoids the merits of Twitter’s complaint (and avoids entirely the novel “warrant canary” question teed up by the lawsuit), opting instead to challenge Twitter’s right to be in federal district court at all. The government first contends that the prevailing reporting structure—a January 2014 agreement between companies including Google, Yahoo, and Facebook referred to by the parties as the “DAG Letter”—is not a “final agency action” that would give rise to a claim under the Administrative Procedure Act. Moreover, the government argues, Twitter lacks standing because the DAG Letter does not impose any obligations on the company at all—rather, those obligations are incidental to secrecy obligations (read: “gag orders”) imposed by the Foreign Intelligence Surveillance Court in its many orders and directives. Given that, as well as “settled principle[s] of comity and orderly judicial administration,” the government argues that Twitter’s challenge should be considered (if at all) under the “FISC’s specialized jurisdiction” over the orders it issues under the Foreign Intelligence Surveillance Act.

It’s worth noting that the government has played this sort of double game before: In federal district-court litigations brought under the Freedom of Information Act by the American Civil Liberties Union and the Electronic Frontier Foundation seeking FISC documents related to Section 215, the government argued that the parties should address their complaints to the FISC itself. Yet years earlier, when the ACLU sought similar documents in the FISC, the government argued that FOIA was the proper avenue for relief.

Further, the government’s jurisdictional arguments appear to sit in some tension with its representations to Twitter prior to the filing of the suit—at least as those representations are portrayed in the company’s complaint. While the government now disclaims that the DAG Letter imposes any secrecy obligations on Twitter (and instead sources those obligations in FISA and FISC orders and directives), the complaint painted a quite different picture. Indeed, Twitter alleged that the government explicitly invoked the DAG Letter in denying the company permission to publish its proposed transparency report. (See, e.g., Compl. ¶¶ 35, 40.) Twitter’s response to this claim—both legally and factually—will be fascinating to watch.

Finally, the government’s merits argument is limited to a reprise of the stance it has taken in cases challenging the speech-suppression features of the “national security letter” statute, most recently In re NSL in the Ninth Circuit. The government does not mention the “warrant canary” aspect of the case, nor does it address the size of the reporting bands that were a central focus of Twitter’s complaint.

I’ll have further analysis of the case when Twitter files its opposition to the government’s motion, on February 6; when the government files its reply, on February 20; and when Judge Yvonne Gonzalez Rogers hears oral argument on the motion in the Northern District of California, on March 10. 

About the Author(s)

Brett Max Kaufman

Staff Attorney in the ACLU's Center for Democracy Follow him on Twitter (@brettmaxkaufman).