Twitter is seeking to publish more information regarding how many and what types of surveillance requests it receives from the US government. The Department of Justice effectively told them to keep their mouths shut and Twitter, on October 7, decided to sue the DOJ and the FBI for the right to publish the information.
You can view the whole lawsuit here.
Case Background
When the government wants a user’s information from a website like Twitter, Google, Yahoo, etc. they issue what are known as National Security Letters (NSL’s) to the provider which compels them to disclose “subscriber information and toll billing records information,” which are records of who a person is communicating with. The company that’s been served an NSL is legally prohibited from disclosing “to any person … that the FBI has sought or obtained access to information or records.” They are effectively compelled to cooperate and, at the same time, prohibited from talking about it.
Twitter begrudgingly complies with the majority of these requests but seeks to publish with some nuance meta-data regarding the amount and type of requests it receives in their Transparency Report (Here’s a link to 2013’s.) In January of 2014, Twitter met with officials from the DOJ and FBI at the Department of Justice and made their case as to why they should be able to publish the information. The government told them too bad.
Twitter then presented their report to the FBI and asked them what, if any, information was classified. Five months later the FBI responded that “information contained in the report” could not be publicly released but did not specify what information was classified. This leaves Twitter with three options: knowingly break the law by publishing the full report, not publishing any of the report, or haphazardly editing down the report in the hopes that they had removed offending information and won’t be open to a lawsuit. The company chose not to publish and then filed the lawsuit.
Twitters Argument
Twitter’s argument rests on a couple of things. The easiest to understand is that the DOJ’s action is an attack on Twitter’s First Amendment right to free speech.
The lawsuit notes that since the Snowden leaks the government has engaged “in their own carefully crafted speech on the issue” but have precluded “communications providers from responding to leaks, inaccurate information reported in the media, statements of public officials, and related public concerns regarding the providers’ involvement with and exposure to US surveillance efforts.”
Earlier, the lawsuit directly accuses the US government of engaging in “extensive but incomplete speech about the scope” of its snooping. This is a nice way of saying that the government is lying through omission and Twitter would like to correct the record but is restricted in doing so.
This, according to the lawsuit, is a violation of Twitter’s First Amendment rights because it prevents the company from responding to public discourse for which it has a direct involvement.
Secondly, Twitter is arguing that the whole process has no legal standing. Without getting too deep into things, the government previously settled with other service providers as to exactly what information regarding NSL’s could be disclosed and set forth a specific format in which it could be done. This was in response to a lawsuit but was handled outside of court in what is referred to as the DAG Letter.
Companies involved in this litigation, such as Google, do publish information regarding NSL’s received and processed through the framework set out in the DAG Letter.
Twitter argues that their Transparency Report is not subject to the same restrictions because they were not party to the lawsuit and the DAG Letter was meant to apply only to those companies involved. This is the same argument they made to the DOJ in January but were shot down.
What Twitter Wants
Twitter is asking the court to:
- Allow it’s report to be published or for the authorities to identify specific passages for redaction
- Recognize that the DAG Letter does not apply to Twitter
- Decide that the gag orders regarding NSLs are unconstitutional
- To find the FISA secrecy provisions unconstitutional
Twitter is obviously asking for much more than they expect to get. But if the court decides that the DAG Letter does not apply to Twitter it would open the door for not only Twitter but other companies as well to be more transparent in their disclosures regarding government surveillance of Americans.
Ramblings of a Newsie 