Twitter’s ubiquitous 140-character-or-less tweets are not, the company argues, sufficiently similar to email or other forms of stored electronic information to warrant lumping them together with the likes of Google, Microsoft, Facebook, Yahoo!, or Apple, all of which have agreed to restrictive limitations on their public reporting of government surveillance. Twitter has sued the U.S. Government in federal court in California to make its point.
The case arises because the federal Stored Communications Act (“SCA”) authorizes the FBI to issue National Security Letters (“NSLs”) to electronic communication service providers, such as Twitter, compelling them to disclose “subscriber information and toll billing records information” upon an FBI certification that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(a), (b). In addition, various sections of the Foreign Intelligence Surveillance Act (“FISA”) permit the government to seek court-ordered real-time surveillance or disclosure of stored records from an electronic communication service provider; and again various laws prevent recipients of a FISA court order from disclosing information about that order. See 50 U.S.C. § 1805(c)(2)(B); 18 U.S.C. § 793.
Twitter argues that these statutory restrictions prevent it from countering “inaccurate information reported in the media, statements of public officials, and related public concerns regarding [Twitter’s] involvement with and exposure to U.S. surveillance efforts.” Twitter also believes that these various laws — and the government’s interpretation of and reliance on them — are facially invalid and, as applied, violate Twitter’s First Amendment right to engage in speech regarding a matter of significant public concern.