By Craig Henson
On October 7, 2014, social media heavyweight Twitter filed a lawsuit against the federal government seeking the right to publicly disclose data related to secret government surveillance of its users. The company filed the complaint in the U.S. District Court for the Northern District of California, naming as defendants U.S. Attorney General Eric Holder, the Department of Justice, the FBI, and FBI director James Comey. In the complaint, Twitter alleged that the government impermissibly infringes on Twitter’s First Amendment rights by prohibiting Twitter from disclosing information about the number and type of surveillance requests and orders received, even if that number is zero.
Section 2709 of the Stored Communications Act (SCA) permits the FBI to issue national security letters (NSLs) that require a wire or electronic communication service provider to supply the government with subscriber information, toll billing records information, or electronic communication transactional records. The SCA prohibits NSL recipients from disclosing that the FBI either sought or obtained the requested information or records. Similarly, the Foreign Intelligence Surveillance Act (FISA) permits the government to obtain a court order authorizing real-time surveillance or disclosure of stored records from an electronic communication service provider. Numerous authorities prohibit a FISA order recipient from disclosing information about that order, including 50 U.S.C. § 1805 of FISA as well as court-imposed nondisclosure requirements in the FISA orders themselves.
In its suit, Twitter brought both facial and as-applied challenges to the SCA nondisclosure requirements and the FISA secrecy provisions. Twitter requested a declaratory judgment to hold, in part, that the SCA nondisclosure requirements and the FISA secrecy provisions are unconstitutional because they violate Twitter’s freedom of speech under the First Amendment. Twitter also requested preliminary and permanent injunctive relief prohibiting the government from enforcing the challenged provisions against it.
On the same day that Twitter filed the complaint, Twitter vice-president Ben Lee posted a statement on Twitter’s blog. Lee reiterated Twitter’s belief that it is entitled under the First Amendment to publicly disclose information related to its receipt of NSLs and FISA orders, and that it “should be free to do this in a meaningful way, rather than in broad, inexact ranges.” Lee also expressed Twitter’s support for “comprehensive reform of government surveillance powers,” including “meaningful efforts such as the USA FREEDOM Act of 2014.” The proposed FREEDOM Act, introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), seeks to revise FISA processes, increase public disclosure of surveillance activities, and impose new privacy protections.
Twitter’s case has some merit. The Northern District of California—as well as the Southern District of New York—has already found unconstitutional the SCA provision that Twitter now challenges. And others have publicly supported Twitter’s view. Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, responded to the lawsuit by saying that “Twitter is doing the right thing by challenging this tangled web of secrecy rules and gag orders. If these laws prohibit Twitter from disclosing basic information about government surveillance, then these laws violate the First Amendment.”
Whether or not Twitter’s suit will succeed remains to be seen. The Ninth Circuit heard oral argument on October 21, 2014 in a case challenging the same NSL provision. The court received numerous amicus briefs supporting the position taken by Twitter, including briefs by members of Congress, law professors, and other electronic service providers. Because Twitter also filed suit in a District Court within the Ninth Circuit, the outcome of that case will likely be dispositive for Twitter. Thus, Twitter may know sooner rather than later whether its case will find a leg on which to stand.