Continuation of Twitter’s lawsuit for disclosure in the wake of the USA Freedom Act

Twitter, Inc. v. Lynch et al, No. 4:2014cv04480 (N.D. Cal. 2015)

On October 13, 2015, Judge Yvonne Gonzalez Rogers dismissed Twitter’s action seeking to disclose the exact numbers of National Security Letters (“NSL’s”) and FISA Orders, if any, that it had received about user accounts. The basis for dismissal was that the suit was mooted by the provisions in Sections 603 (a)  of the USA Freedom Act, incorporated in 50 U.S.C. Sec. 1874, for public reporting by persons subject to orders of National Security Letters (NSLs) and FISA Orders. Twitter was allowed until November 13 to amend its complaint.

In its amended complaint, Twitter continued to seek to disclose exact numbers of NSL’s and FISA Orders, despite the fact that the USA Freedom Act laid out four options for disclosures by recipients of orders. Each option allowed providers to disclose only bands of numbers of NSL’s and FISA Orders received. Noting that the government did not rely on the USA Freedom Act, but rather on underlying national security statutes, to claim that Twitter was prohibited from disclosing exact numbers of orders, Twitter contended that  the government’s interpretation of the non-disclosure provisions of FISA and the Espionage Act violated the First Amendment.

On February 5, 2016, an amicus brief on behalf of Twitter was filed by Automattic (the operator of web publishing platform, CloudFlare, Wikimedia Foundation, CREDO Mobile, Mapbox,  Medium, Reddit, and WickR Foundation.

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