Twitter goes to court over government restrictions limiting reporting on surveillance requests

Digest Commentary Digest Notes First Amendment
By Jens Frankenreiter – Edited by Michael Shammas Twitter, Inc. vs. Eric Holder et al, No. 14-04480 (N.D. Cal. Oct. 07, 2014) Complaint hosted by The Washington Post Twitter.png?t=20130219104123Twitter on October 7 sued the U.S. Department of Justice and the Federal Bureau of Investigation, asking the federal district court for the Northern District of California to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail than currently approved by the government. The complaint challenges the requirements for the publication of data on surveillance requests set out by the government as violating Twitter’s rights under the First Amendment. The lawsuit is part of the efforts of Twitter and other companies to obtain the government’s approval for the reporting of information on the numbers of surveillance requests received by these companies. These efforts were largely triggered by former intelligence contractor Edward Snowden’s revelations about the existence of large-scale data gathering programs by the government relying, among other things, on surveillance requests to Internet content providers. In its lawsuit, Twitter seeks approval to provide more fine-grained data than the government is willing to consent to. Particularly, it objects to an alleged refusal to allow the reporting that it did not receive any surveillance requests of a particular type. A summary of the complaint and the preceding events is provided by Reuters, The Washington Post, and Wired. American Civil Liberties Union in a press statement welcomed Twitter’s move and expressed hope that “that other technology companies will now follow Twitter’s lead”. According to the complaint, the lawsuit was preceded by negotiations between Twitter and the government. In these negotiations, the government insisted on applying the terms of an agreement reached in a separate lawsuit initiated by Google and others, and in which Twitter did not participate, to Twitter. Under the terms of this agreement, companies are only allowed to report the range of numbers of requests they receive. For example, a company willing to report numbers for the FISA orders it received would be only allowed to report that it received 0-999 requests, even if it in fact received zero requests. Also, the agreement imposes a waiting period of between six months and two years between the request and the reporting. As part of the negotiations, Twitter asked the government for detailed guidance on which information in a “draft Transparency Report” it submitted could be legally published. The government allegedly responded by stating “that information contained in the report is classified and cannot be publicly released,” providing only some examples of information it considered as being in violation of the applicable rules. Twitter gives three different reasons why it perceives the government’s acts as a violation of its First Amendment rights. First, it argues that the rules imposed by the government constitute “unconstitutional prior restraint, content-based restriction, and viewpoint discrimination in violation of Twitter’s right to speak about truthful matters of public concern.” Second, it contends that the orders were “are not narrowly tailored to serve a compelling governmental interest,” and, third, that “the judicial review procedures do not meet procedural safeguards required by the First Amendment.” Twitter also objects to the governments’ refusal to answer its request in a more detailed manner, arguing that the government was under an obligation to limit any restriction of free speech as far as possible. In a blog post, Twitter explained its motivation for going to court, stating that it believed “[it was] entitled under the First Amendment to respond to [its] 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.” Jens Frankenreiter is a LL.M. ’15 student at Harvard Law School and a Ph.D. candidate at the Swiss Federal Institute of Technology (ETH) Zurich.