Twitter Ducks Feds’ Bid to Keep Surveillance Requests Secret

OAKLAND, Calif. (CN) – A federal judge has rejected the government’s push to forbid Twitter from publishing its own information on government surveillance, calling into question the constitutionality of blocking the company’s ability to do so.  

In denying without prejudice the federal government’s motion for summary judgment against the popular social media platform, U.S. District Judge Yvonne Gonzalez Rogers ruled Thursday that the government’s restrictions on what Twitter can publish constitute a prior restraint on its speech subject to the highest level of scrutiny under the First Amendment.

“The government has not presented evidence, beyond a generalized explanation, to demonstrate that disclosure of the information in the draft transparency report would present such a grave and serious threat of damage to national security as to meet the applicable strict-scrutiny standard,” the judge wrote in a 21-page order.

Twitter accused the FBI, the Department of Justice and then-Attorney General Eric Holder in 2014 of violating its First Amendment rights by prohibiting it from publishing redacted information from a transparency report it submitted to the DOJ and FBI detailing the number of national security requests and surveillance warrants it had received from the government.

In an effort at “meaningful” transparency, Twitter says in its lawsuit that it wants to publish the numbers of various types of surveillance requests that it had received, including subpoenas that give the FBI access to customer data. The government refused, citing its policy that companies must report their numbers in broad ranges, such as 0-999.

The government claims the information in the reports is properly classified, and releasing exact numbers would damage national security by revealing critical information to enemies.

Twitter says disclosing specific numbers won’t harm national security, the redacted information is improperly classified, and prohibiting its disclosure is an unconstitutional prior restraint on its speech. Prior restraints can be justified only if they are narrowly tailored by showing that reporting specific numbers would endanger the nation’s security, it says.

Gonzalez Rogers agreed with Twitter Thursday, finding that the First Amendment requires strict scrutiny of content-based restrictions and prior restraints, regardless of whether the information is classified. The judge also ruled the government’s restrictions aren’t narrowly tailored to prohibit only speech that would pose a clear and present danger or imminent harm to national security.

“[T]he court does not agree with the government’s position that simply determining information meets the requirements for classification under Executive Order 13526 ends the constitutional analysis,” she wrote.

Gonzalez Rogers found that the government’s speech restrictions aren’t based on an actual finding that Twitter’s disclosure would harm national security, but instead on the fact that the disclosure was more precise than the ranges set forth in the USA Freedom Act.

Moreover, the restrictions do not include any safeguards to ensure the government’s restriction decisions are compatible with the high level of scrutiny that prior restraints require, she said.

Gonzalez Rogers on Friday also tidily demolished the government’s argument presented during a February hearing that courts usually show “the utmost deference” to the constitutional authority of the executive branch to classify national security information, and its request that she follow suit.

“The government’s position … ignores the important First Amendment safeguards that would be imperiled by such extreme deference to the executive’s classification decisions,” the judge wrote.

In addition to denying the government’s motion, Gonzalez Rogers ordered the government to expedite the process for granting Twitter’s lead counsel security clearances to permit them to review classified documents relevant to the case.

Twitter said it was pleased with the decision in a statement issued Friday.

“This is an important issue for anyone who believes in a strong First Amendment, and we will continue with our efforts to share our complete transparency report,” the company said.

Twitter is represented by Lee Rubin of Mayer Brown in Palo Alto, and the government by Justice Department attorney Julia Berman in Washington.

The Justice Department declined to comment Friday.


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