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. Continue reading