Twitter says gag on surveillance scope is illegal

[rhoenix]

Twitter sued the Justice Department on Tuesday, saying the agency's virtual ban of detailing the scope of US surveillance on the microblogging site is an unconstitutional "prior restraint" of speech protected by the First Amendment.

The San Francisco-based company's federal lawsuit concerns the broad limits the government has placed on Twitter over how it may characterize national security surveillance of Twitter's users—like National Security Letters and FISA court orders. The same is true for other companies, too.

Twitter attorney Eric Miller wrote: [PDF]

Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being 24 unconstitutionally restricted by statutes that prohibit and even criminalize a service provider's disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA that it has received, if any. In fact, the U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request.

The lawsuit says Twitter submitted a public transparency report to the Justice Department for approval and did not take part in a settlement with prosecutors that allowed companies to report, in ranges of 1,000, the number of secret orders they get for consumer data from US spies.

"The Defendants’ position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether," Miller wrote. "Defendants provided no authority for their ability to establish the preapproved disclosure formats or to impose those speech restrictions on other service providers that were not party to the lawsuit or settlement."

Twitter said in a blog post that it had tried to avoid litigation, but was unable to convince the President Barack Obama administration "to allow us to publish even a redacted version of the report."

[rhoenix]

Another source:

Twitter is suing the U.S. government in an effort to loosen restrictions on what the social media giant can say publicly about the national security-related requests it receives for user data.

The company filed a lawsuit against the Justice Department on Monday in a federal court in northern California, arguing that its First Amendment rights are being violated by restrictions that forbid the disclosure of how many national security letters and Foreign Intelligence Surveillance Act court orders it receives -- even if that number is zero.

Twitter vice president Ben Lee wrote in a blog post that it's suing in an effort to publish the full version of a "transparency report" prepared this year that includes those details.

The San Francisco-based firm was unsatisfied with the Justice Department's move in January to allow technological firms to disclose the number of national security-related requests they receive in broad ranges.

"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 -- including what types of legal process have not been received," Lee wrote. "We should be free to do this in a meaningful way, rather than in broad, inexact ranges."

But a Justice Department spokeswoman pointed to the January move -- which was aimed at mollifying complaints from tech giants like Google and Microsoft -- as evidence that the government is allowing the release of at least some information on its surveillance activities.

"Earlier this year, the government addressed similar concerns raised in a lawsuit brought by several major tech companies," department spokeswoman Emily Pierce said. "There, the parties worked collaboratively to allow tech companies to provide broad information on government requests while also protecting national security."
Critics of the U.S. government's secrecy surrounding its national security surveillance activities lauded Twitter's move.

Jameel Jaffer, the ACLU's deputy legal director, said "challenging this tangled web of secrecy rules and gag orders" was the right move, and he urged other tech firms to follow Twitter's lead.

"If these laws prohibit Twitter from disclosing basic information about government surveillance, then these laws violate the First Amendment," Jaffer said. "The Constitution doesn't permit the government to impose so broad a prohibition on the publication of truthful speech about government conduct."

[rhoenix]

And from Twitter's own site:

As part of our latest transparency report released in July, we described how we were being prohibited from reporting on the actual scope of surveillance of Twitter users by the U.S. government. Our ability to speak has been restricted by laws that prohibit and even criminalize a service provider like us from disclosing the exact number of national security letters (“NSLs”) and Foreign Intelligence Surveillance Act (“FISA”) court orders received — even if that number is zero.

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 – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.

So, today, we have filed a lawsuit in federal court seeking to publish our full Transparency Report, and asking the court to declare these restrictions on our ability to speak about government surveillance as unconstitutional under the First Amendment. The Ninth Circuit Court of Appeals is already considering the constitutionality of the non-disclosure provisions of the NSL law later this week.

You can read our filing with the U.S. District Court of Northern California in PDF form here.

We’ve tried to achieve the level of transparency our users deserve without litigation, but to no avail. In April, we provided a draft Transparency Report addendum to the U.S. Department of Justice and the Federal Bureau of Investigation, a report which we hoped would provide meaningful transparency for our users. After many months of discussions, we were unable to convince them to allow us to publish even a redacted version of the report.

Meanwhile, we continue to look for comprehensive reform of government surveillance powers in the U.S., and we support meaningful efforts such as the USA Freedom Act of 2014 as introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), which would allow companies like Twitter to provide more transparency to its users.

This is an important issue for anyone who believes in a strong First Amendment, and we hope to be able to share our complete Transparency Report.