#Do-Not-Disclose — Twitter Sues Government Alleging Free Speech Violation

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.

Twitter argues that it cannot live with the types of disclosure restrictions already agreed upon by Google and others because its service is “unique” and “built on trust and transparency.” A core value of Twitter, says the company, is that “world leaders, political activists, journalists, and millions of other people” use it to “disseminate information and ideas, engage in public debate about matters of national and global concern, seek justice, and reveal government corruption and other wrongdoing.” Thus, the “ability of Twitter users to share information depends, in part, on their ability to do so without undue fear of government surveillance.” And the ability to engage in “speech concerning the nature and extent of government surveillance of Twitter users’ activities is critical to Twitter.”

In its lawsuit, Twitter asks for a declaration that the government’s restrictions on disclosure violate the Constitution; and seeks to disclose certain information to its users, including the number and kinds of NSLs and FISA orders Twitter has received and a descriptive statement about Twitter’s exposure to national security surveillance in order to express the overall degree of government surveillance it is or may be subject to. Although the lawsuit is at its early stages, the case is sure to garner much attention as the court will have to walk the tightrope between First Amendment freedoms and national security concerns. The amount of disclosure ultimately allowed may also illuminate just how widespread the government’s surveillance efforts have become, and ultimately whether such impingements upon a user’s privacy is justified.

Jeffrey L. Nagel is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.
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