SAN FRANCISCO (CN) — A Ninth Circuit panel on Monday upheld summary judgment for the feds in Twitter's case over its desire to release its self-described "transparency report" without redactions the government said were necessary to protect national security.
In 2014, Twitter sued the Justice Department, FBI and others claiming the agencies violated its First Amendment rights by forbidding publication of information on government surveillance. The San Francisco-based social media giant claimed its efforts to be transparent about surveillance are hampered by laws that prohibit service providers from disclosing information about court orders and government subpoenas.
Twitter sought to "lawfully publish" information from a transparency report addendum submitted to the Justice Department and FBI. Months later, the government told Twitter the information in the report is classified and cannot be released, according to the lawsuit. But Twitter said it was unconstitutionally restrained by laws that prohibit or criminalize the release of information, such as how many Foreign Intelligence Surveillance Act court orders and FBI national security letters it has received, even if that number is zero.
After a four-year legal battle, a federal judge in California ruled Twitter cannot release the transparency report describing the extent of surveillance requests it received from the government, including national security letters and orders under the Foreign Intelligence Surveillance Act. The court ruled the government sufficiently explained how the release of the information could result in “grave or imminent harm” to national security.
Twitter appealed, and in his opinion issued for a Ninth Circuit panel Monday, U.S. Circuit Judge Daniel Bress found the feds appropriately served administrative subpoenas and orders requiring Twitter to provide information about users with redactions. The Donald Trump appointee wrote the government’s redactions of Twitter’s transparency report "were narrowly tailored in support of the compelling government interest in national security."
Bress found Twitter’s constitutional challenges “failed to persuade,” although he and the panel agreed Twitter has a First Amendment interest in commenting on matters of public concern involving national security subpoenas.
The panel also agreed with the lower court's finding that due process did not require that Twitter’s outside counsel receive classified information when Twitter filed the lawsuit. Twitter was provided unclassified versions of the various declarations, or sufficient information to advance its interests — which Bress said “did not rise to the level of constitutional imperative.”
"There is no general constitutional rule requiring the government to provide classified materials to an adversary in litigation," Bress wrote for the panel. "Nor is there a general constitutional rule allowing a party access to classified information by virtue of its decision to file a lawsuit that implicates that kind of information."
In a concurring opinion, fellow Trump appointee U.S. Circuit Judge Lawrence VanDyke wrote the unclassified materials were sufficient to meet the government’s burden but said that given the “significant weight” a court must give to the government’s national security factual findings, he would hold that the government’s unclassified declarations sufficiently demonstrated that its restrictions on Twitter’s speech were narrowly tailored to the compelling interest of protecting national security.
“The government’s prevention of Twitter from publishing classified, redacted information satisfies strict scrutiny, and Freedman’s procedural protections do not apply in this case. Due process also does not demand that Twitter’s counsel obtained access to classified information,” he wrote.
U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, rounded out the panel.
A Twitter spokesperson did not respond to a request for comment by press time.
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