FILE - This Thursday, June 6, 2013 file photo shows the National Security Administration (NSA) ... [+]
The U.S. government says that it would and a federal judge has agreed. In an order issued on April 17, a U.S. federal judge dismissed a lawsuit brought by Twitter against the government in 2014. In her decision, U.S. Judge Yvonne Gonzalez Rogers of the District Court for Northern California wrote that allowing the publication of the number of government national security requests the company received in 2013 and in subsequent years “would be likely to lead to grave or imminent harm to the national security.”
In 2014, Twitter sought to publish a transparency report that would inform users about the number of government national security requests it has received during the second half of 2013. The transparency report would include data about how many, if any, national security letters (NSLs) and Foreign Intelligence Surveillance Act (FISA) orders it had received.
After submitting the “Draft Transparency Report” for review, the government prohibited its publication, claiming that revealing such information would harm national security. In response, Twitter filed a lawsuit claiming that the government’s position was a prior restraint on speech that violated the company’s rights under the First Amendment of the U.S. Constitution.
In its filings, the government argued that disclosing even a rough estimate of the number of national security requests made to Twitter would harm national security because it could give adversaries like terrorist groups of foreign intelligence agencies insight into the United States’ surveillance capabilities and their focus. Even reporting that Twitter had received no such requests, the government said, would harm national security.
Ultimately, the judge agreed with the government and granted summary judgment in favor of the government. In a statement on Saturday reported by CNET, the company said, “While we are disappointed with the court’s decision, we will continue to fight for transparency.” It remains to be seen whether Twitter will appeal the decision.
As Twitter noted in its filings, several other companies already publish similar data about the national security requests they receive and with the government’s approval. For example, Twitter filings list Facebook, Google, LinkedIn, Microsoft and Yahoo! in this regard.
Why such disclosures by Twitter would pose a unique threat is not clear. That is because the government’s evidence in support of their position was kept secret, including from Twitter’s counsel, who has a security clearance.
The inability to adequately respond to secret evidence was one reason why Twitter had asked for summary judgement in its favor. But the judge disagreed. “The Court finds that the classified declaration” submitted by the government, the order said, “cannot be disclosed to counsel for Twitter based upon the national security concerns it raises, despite counsel’s clearance approval.”
In her order, the judge agreed with Twitter that the government’s position is a content-based restriction on speech for which strict scrutiny applies. However, she said that prohibiting Twitter from saying whether it had received any requests at all, let alone how many of each type, was sufficiently “narrowly tailored” and does not violate the company’s First Amendment rights.
Regardless of the legal correctness of the judge’s decision, it is still disturbing given the broader context of what we have learned about U.S. government surveillance programs since 2014.
Twitter’s attempt to include national security request data in its 2014 report came on the heels of the explosive 2013 revelations by Edward Snowden about U.S. government surveillance activities. The first of the Snowden reports dealt with the use of Foreign Intelligence Surveillance Act (FISA) orders allowing the collection of telephone metadata from U.S. telecom providers like Verizon. The New York Times reported in 2019 that the program had been shuttered. The reason, we learned in a February 2020 report from the Privacy and Civil Liberties Oversight Board, was that the program had only netted two unique leads and one significant investigation between 2015 and 2019, all at a cost of $100 million.
The FISA system has come in for even more criticism in recent weeks as a result of a newly completed investigation by the Department of Justice inspector general that revealed “errors in every FBI application to a secret surveillance court examined as part of an ongoing review,” the Washington Post reported at the end of March. “These interim results,” the Post said, “seem to indicate that other sensitive counterintelligence and counterterrorism cases have been similarly plagued by mistakes.”
A prior investigation found significant problems with the FISA warrants used to surveil Trump campaign advisor Carter Page. Those problems were errors rather than evidence of political bias. But we have seen at least one instance of the government pressuring Twitter to hand over information about a user based on the user’s political speech. In 2017, U.S. Customs and Border Protection sent an administrative summons to Twitter demanding to know the identity of an account (@Alt_USCIS) critical of President Trump’s immigration policies. Twitter filed a lawsuit, which resulted in the government withdrawing its request.
