OAKLAND, Calif. (CN) — Attorneys for Twitter told a federal judge Tuesday that the government violated the First Amendment by barring it from publishing its own information about a federal surveillance program.
U.S. District Judge Yvonne Gonzalez Rogers grilled both sides during an arduous 90-minute hearing that ended in an impasse.
“One of the things that is quite clear from your briefs is that you seem to enjoy not addressing each other’s arguments,” Gonzalez Rogers said.
Twitter in 2014 accused the FBI, the Department of Justice and then-Attorney General Eric Holder 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 surveillance requests it had received from the government.
In an effort at “meaningful” transparency, Twitter said in its lawsuit that it wanted 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 classified, and releasing exact numbers would damage national security by revealing critical information to enemies, according to its motion for summary judgment
Department of Justice attorney Julia Berman said at oral argument Tuesday: “Grouping together content collection rather than breaking out categories, as Twitter would do, is deemed OK. It masks whether or not a particular type of collection has occurred.”
In its motion, the government says the redacted information is properly classified and cannot be released.
Twitter says in an opposition brief that disclosing specific numbers won’t harm national security, so 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 said.
Also Tuesday, Twitter attorney Lee Rubin said the government had not shown that national security would be harmed if Twitter said, for example: “I received 44 requests rather than 0-999.”
“This has all the trappings of a prior restraint,” Rubin said. “Twitter is the 21st century public forum.”
Rubin, with Mayer Brown, also took issue with Berman’s contention that the court should defer to the government.
In its motion for summary judgment, the government said that courts usually show “the utmost deference” to the constitutional authority of the executive branch to classify national security information, and asked Gonzalez Rogers to follow suit.
“The Ninth Circuit affirmed that judges play an important role in national security,” Rubin told Gonzalez Rogers, referring to the court’s decision last week to temporarily block the Trump administration’s executive order on immigration that it had billed as a national security measure.
In that decision, a three-judge panel found no precedent to support the government’s claim that the courts cannot review its immigration and national security decisions.
Gonzalez Rogers seemed skeptical of the government’s argument for deference but was circumspect.
“You can’t just say and you can’t just cover any action with a rubric that it puts national security at stake,” she told Berman. “There has to be an analysis.”
Gonzalez Rogers did not indicate how she would rule.