DOJ, Twitter Spar Over Surveillance Disclosure

OAKLAND, Calif. (CN) - Justice Department lawyers on Tuesday asked a federal judge to ax most of Twitter's legal challenge to the feds' effort to block the social media giant from exposing the scope of its surveillance program.

Twitter claimed in a lawsuit last October that it received a letter from the government barring the company from publishing a "transparency report" on the number of surveillance requests it received. The information was classified and cannot be released, the government told Twitter attorneys.

On Tuesday, Justice Department lawyer Steven Bressler clung to legal technicalities in his argument, saying the letter was a mere guideline for Twitter and not a "final agency action" subject to the Administrative Procedures Act.

"This was a discretionary decision," Bressler told U.S. District Judge Yvonne Gonzalez Rogers.

The letter from former Deputy Attorney General James Cole merely explains what would be safe for Twitter to disclose, Bressler said.

"It explains very specifically a safe harbor of what a recipient can disclose and be quite confident it is not revealing classified information," Bressler argued. "It's a safe harbor that provides guidance on what the government agrees can lawfully be revealed about these sensitive maters. It doesn't say you can't say anything else."

Rogers seemed unconvinced, saying the letter appeared to be more than a guideline since it told Twitter exactly what it could and could not disclose.

"Isn't that exactly what it was used for in Twitter's case?" Rogers asked. "They [Twitter] said, 'We want to disclose this.' The response was, 'You cannot. See the DAG letter.'"

"The FBI sent Twitter a letter saying what you want to disclose is inconsistent with the framework," Bressler answered. "We provided them with a line-by-line, word-by-word addendum of which parts are protected from disclosure by law. If Your Honor ruled today striking down the letter, Twitter could not lawfully disclose any more than it can today because the underlying legal restrictions would still be at issue."

Twitter attorney Eric Miller countered, "They're treating it not just as a guideline to the companies, they're saying it defines the limits of permissible disclosure. It establishes a rule that governs the conduct of companies like Twitter."

Further complicating matters, DOJ lawyer Julie Berman argued that Rogers should yield jurisdiction to the Foreign Intelligence Surveillance Court, which has specialized authority over the orders it issues under the Foreign Intelligence Surveillance Act.

Miller pushed to keep the case out of the secretive court.

"This court is really a superior forum for considering these important public issues," he said.

Follow @MariaDinzeo

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