FISA

Twitter Files Lawsuit Against Justice Department, FBI

By Alex Ely
Wednesday, October 8, 2014, 9:23 PM

Twitter filed suit yesterday against Attorney General Eric Holder, the Department of Justice, Federal Bureau of Investigation Director James Comey, and the FBI in the District Court for the Northern District of California. You can read the company’s announcement on their website, and a copy of the complaint is available here. The latter is---forgive the e-humor---a bit longer than 140 characters.

The company’s principal gripe with the government is that it has been prevented from publishing a Transparency Report detailing the number of Twitter accounts the government has sought to monitor for national security purposes. According to the complaint, Twitter submitted the document to the government on April 1, 2014; the United States informed the company in September that “information contained in the [Transparency Report] is classified and cannot be publicly released” because it does not comply with a framework for reporting data about government requests, as set forth under two surveillance laws.

The first of the pair: Section 2709 of the Stored Communications Act. This authorizes the FBI to issue National Security Letters (“NSLs”) to electronic communication service providers, compelling them to disclose subscriber information and billing records upon a certification by the FBI that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” The other statute in play is the Foreign Intelligence Surveillance Act.

The company claims that the non-disclosure and judicial review provisions of both statutes are unconstitutional, chiefly on First Amendment grounds. In particular, plaintiffs say the United States’ “position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.” Twitter also argues that Section 2709 is unconstitutional on separation of powers grounds because it requires courts to apply a more deferential standard of review than would otherwise be constitutionally permissible. (The challenge to Section 2709 is made on an  “as applied” as well as a facial basis.)

Finally, the company also rejects the notion that Twitter is “similarly situated” to the group of technology companies which settled a dispute with the Justice Department in January. Under that settlement, tech companies could report the number of surveillance requests in broad bands of 1000, but could not disclose more specific figures. Here, Twitter claims that imposing the requirements of the settlement on Twitter, a non-party, represents both a violation of the Administrative Procedure Act and Twitter’s First Amendment rights.

According to the complaint, Twitter met with representatives of the DOJ and FBI on January 29, 2014, and sought clarification about whether the government considered them a “similarly situated” party that would thus be bound by the terms of the previous settlement, set forth in a January 27, 2014 letter from Deputy Attorney General James M. Cole (the “DAG Letter”). That letter---sent to the General Counsels of Facebook, Google, Microsoft, LinkedIn and Yahoo!---laid out the permissible disclosure options for the tech companies, and provided guidelines for the types of aggregate data regarding surveillance requests that these companies could release to the public.

Although the government has not specifically commented on the substance of Twitter’s complaint, it seems---from the breakdown of negotiations and from Twitter’s complaint---that the government’s position is likely to be that Twitter is also bound by the same disclosure requirements, both for FISA-related information and for NSLs. Specifically, the complaint alleges that at the January 29th meeting, “the DOJ and FBI told Twitter that the DAG Letter sets forth the limits of permissible transparency-related speech for Twitter and that the letter would not be amended or supplemented with additional options of preapproved speech.” Crucially, under both disclosure options presented in the DAG letter, Twitter apparently cannot report if it received zero requests, and would instead have to report the number of requests in bands, i.e. 0-250 or 0-1000 (the specific options available under the framework are laid out on page 7 of the complaint).

In other words, if the government had never issued an NSL or a FISA order to Twitter (and keep in mind that Twitter accounts are generally public), Twitter could not report that fact to its users in order to put their minds at rest, because such disclosures---not having been previously authorized by the DOJ or FBI---would run afoul of 18 U.S.C. § 2709(c)(1), which provides that the recipient of an NSL shall not disclose “to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records.”

Government sources told the Washington Post that they are currently reviewing the complaint.

#StayTuned.

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