Twitter has filed a lawsuit in federal court asking that the United States Department of Justice’s prohibitions on publishing the number and kind of government requests for data the company receives be declared unconstitutional. The suit claims that the rules infringe on Twitter’s right to free speech by requiring that the company “engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.”
The move by Twitter is the first public shot across the bow of the FBI and Justice Department on this issue. Many companies, including Google, Microsoft, Apple and others, have been pressing the government for the ability to publish detailed information about the scope of the requests they receive for user data. The government so far has said that companies can publish only broad ranges of numbers about the volume of National Security Letters they receive, which only gives a vague picture of the situation. In its most recent transparency report, published in July, Twitter said that it was weighing its legal options on the matter.
“Specifically, if the government will not allow us to publish the actual number of requests, we want the freedom to provide that information in much smaller ranges that will be more meaningful to Twitter’s users, and more in line with the relatively small number of non-national security information requests we receive. We also pressed for the ability to be specific about different kinds of national security requests and to be able to indicate ‘zero requests’ if that applies to any particular category of request,” Jeremy Kessel, senior manager of global legal policy at Twitter, said.
Twitter officials sent a draft of the kind of report they’d like to release to FBI and Justice Department in the spring, in the hopes that the government would approve the more detailed report. But the effort failed, and so company officials filed the suit in U.S. District Court in Northern California Tuesday, claiming that the restrictions on the way the company can report NSL requests and other data constitute prior restraint and violate the First Amendment.
“Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider’s disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA that it has received, if any. In fact, the U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request,” the lawsuit says.
“These restrictions constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern. Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of U.S. government officials by providing more complete information about the limited scope of U.S. government surveillance of Twitter user accounts—including what types of legal process have not been received by Twitter—and the DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional speech restrictions.”
In a blog post explaining the rationale for the lawsuit, Ben Lee, vice president of legal at Twitter, said that the company feels it has the right to publish the data it has about the scope of government surveillance efforts.
“It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges,” he said.
Currently, companies are allowed to publish the number of NSLs they receive in ranges of 1,000. Twitter and others have asked that they be allowed to publish exact numbers of requests.
