The U.S. government wants a federal court to dismiss most of a lawsuit filed by Twitter alleging that it violated the firm’s First Amendment rights when it restricted the firm’s ability to reveal information about national security requests for user data.
At issue is a letter issued in January 2014 by the Justice Department relaxing limits for companies wishing to disclose the number of such requests they receive. Twitter, which was not among the five firms that negotiated the new limits with the department, thought they were still too strict.
In a motion filed Friday in the U.S. District Court for the Northern District of California, federal attorneys asked a court to partially dismiss Twitter’s suit, which was filed in October. They allege that the firm erred when it said the letter restricted its constitutional right to expression.
The social media service sued after the FBI barred it from releasing a transparency report that the bureau said contained classified information that was inconsistent with the department guidelines released last January.
“The letter is permissive, advisory guidance” and does not restrict Twitter’s speech “in any way,” said Steven Bressler and Julia Berman, Justice Department civil division attorneys. Rather, they said, any restrictions stem from surveillance laws and orders issued by the Foreign Intelligence Surveillance Court.
The attorneys argued that the proper venue to hear Twitter’s case is the surveillance court, which was created in 1978 to address issues arising under the Foreign Intelligence Surveillance Act. FISA governs surveillance on U.S. soil to detect terrorist plots and disrupt foreign intelligence operations — surveillance that depends largely on the cooperation of commercial providers.
In most cases, the court, at the government’s request, issues orders and directives to companies to turn over data with instructions to keep the request secret so as not to jeopardize an investigation.
But Twitter argued that FISA does not require a company to remain silent about the receipt of wiretap and search orders under that law, or about the aggregate numbers of FISA orders received. It also argued that a separate law permitting the use of a national security letter — a form of administrative subpoena — is unconstitutional because its gag order provision is too broad.
Twitter would like to be able to disclose the exact number of national-security-related orders received in any particular category — including zero, if that is the case.
The Justice Department is not asking the court at this stage to dismiss Twitter’s claim that the statue on national security letters is unlawful as applied specifically to Twitter because there are facts in dispute on that issue.
Twitter has four weeks to reply. Oral arguments will be heard in March.
Ellen Nakashima is a national security reporter for The Washington Post. She focuses on issues relating to intelligence, technology and civil liberties.
