The latest salvo has been fired in the war between U.S. communications providers and the federal government regarding restrictions on how companies may disclose information about big brother’s surveillance of their customers.
On October 7, Twitter, Inc. (“Twitter”) filed a complaint for declaratory relief with the U.S. District Court for the Northern District of California asking the court to declare restrictions on Twitter’s ability to speak about government surveillance unconstitutional under the First Amendment. The complaint names U.S. Attorney General Eric Holder, the U.S. Department of Justice, and the Federal Bureau of Investigation (“FBI”) as defendants. Ben Lee, Twitter’s Vice President for Legal Affairs, stated on Twitter’s official 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 . . . We should be free to do this in a meaningful way.”
The complaint alleges that restrictions imposed by the U.S. Department of Justice “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.”
The primary nexus of Twitter’s complaints arise from the guidelines stated in a January 27 email (“DAG Letter”) sent to the general counsels of Facebook, Google, LinkedIn, Microsoft, and Yahoo from Deputy U.S. Attorney General, James M. Cole, regarding how communications providers may publicly disclose information about national security letters (“NSLs”) and Foreign Intelligence Surveillance Act (“FISA”) requests. The guidelines were negotiated as a result of the named companies dismissing lawsuits against the U.S. Department of Justice which asserted constitutionally protected rights to release information about the total number of received NSLs and FISA requests from government authorities.
The complaint specifically concerns the guidelines preventing communication providers from disclosing that they have not received any requests (NSL or FISA) for a particular process, product, or service used by its customers. Twitter alleges that these guidelines only allow for vague and broad-ranged descriptions of the volume of received NSLs and FISA requests to be disclosed in violation of their constitutional right to inform the public in a more meaningful way.
The Department of Justice has stated that the DAG Letter’s guidelines extend to all “similarly situated companies” in addition to the five named companies. Twitter’s complaint alleges that the Department of Justice has provided no legal authority to extend these guidelines beyond the five named companies involved in the settlement negotiations and that to extend the guidelines would “violate the Administrative Procedure Act because the DAG Letter represents a final agency action not in accordance with law . . . the imposition of the DAG Letter on Twitter is in excess of statutory jurisdiction, authority, or limitations . . . [and] Twitter is not “similarly situated” to the parties addressed in the DAG Letter.”
In January, Twitter company officials met with the Department of Justice and FBI to unsuccessfully obtain confirmation that Twitter is not a similarly situated company to those named in the DAG Letter and thereby obtaining an exemption from the DAG Letter guidelines.
Following the January meetings, Twitter forwarded a draft of its Transparency Report to the FBI for review in April. The FBI “concluded that information contained in the report is classified and cannot be publicly released,” as it violated the pre-approved format for disclosure contained within the DAG Letter.
This has prevented Twitter from publishing even a redacted version of the report because the FBI refused to clarify which parts of the report were ‘classified’ and which were not. It instead only indicated that to publish the report would leave Twitter legally liable to prosecution.
Twitter’s complaint additionally attacks the constitutionality of the nondisclosure provision of 18 U.S.C. § 2709. The statute prevents the recipient of an NSL from publicly disclosing that the FBI has sought or obtained access to information or records. Twitter claims this is a prior restraint and content-based restriction on First Amendment speech, not sufficiently tailored to only serve a compelling government interest, and that the judicial review procedures do not guarantee prior judicial review or expeditious review.
Twitter most notably seeks a declaratory judgment from the court granting it the ability to publish its Transparency Report and not have to follow the requirements of the DAG Letter, including the prohibitions that prevent reporting that no requests have been received and the requirement to disclose the numbers of NSLs and FISA requests in broad ranges as opposed to specific numbers. In doing so the court would potentially hold the nondisclosure provisions of 18 U.S.C. § 2709 unconstitutional under the First Amendment; or, in lieu of a blanket declaration, at least render § 2709 unconstitutional under the First Amendment as applied to Twitter, and a prohibition on the federal government from prosecuting Twitter for transparency reporting inconsistent with the terms of the DAG Letter.
The defendants have yet to submit a responsive pleading.
#Transparency- Twitter’s Fight to Disclose Information about Federal Surveillance Activities (PDF)