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Twitter Spars With Feds Over Surveillance Scope

OAKLAND, Calif. (CN) - A federal judge heard arguments Monday on the government's latest motion to dismiss Twitter's lawsuit challenging the feds' effort to block the social media giant from exposing the scope of its surveillance program.

Twitter claimed in an October 2014 lawsuit that it received a letter from the government barring a "transparency report" on the number of surveillance requests it received.

The information was classified and cannot be released, the government told Twitter's attorneys. Twitter contends that the government's prohibition violates the First Amendment.

The parameters of what can be deemed "classified" was the most visited topic at Monday's hearing.

"Documents don't just become classified without someone saying that they're classified," U.S. District Judge Yvonne Gonzalez Rogers said. "There has to be, it seems to me, a declaration that something is classified."

Julia Berman, who argued for the government, contended that certain documents - such as the Foreign Intelligence Surveillance Court (FISC) orders that Twitter received from the government - may also be "derivatively classified."

"If this court chose to adjudicate this case, what the court chose to address would necessarily disclose what orders the plaintiff did and did not receive," Berman said.

Arguing for Twitter, Andrew Pincus said that "the government's own practice shows that the only barrier to disclosure is classification" when the information to be published is numbers - as in this case - rather than content.

But Rogers was wary of interfering with the FISC court's classification order.

"How am I supposed to undo any sort of classification that some other court did?" she asked Pincus.

"If I issue an order, someone in the Southern District of New York can't change it. Only the Ninth Circuit can do that."

Berman said that "it seems that Twitter is really saying that the information isn't properly classified."

To which Rogers replied, "The government keeps twisting things in a particular way which works very well with their particular argument. But obviously there would have to be some basis for a classification, right?"

The hearing ended at what seemed to be a stalemate, and Rogers did not indicate how she would rule.

Berman is with the Department of Justice. Pincus is with Mayer Brown in Washington.

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