Twitter v. Holder et al., Case N. 14-cv-4480 (N.D. Cal. filed Oct. 7, 2014)Although Twitter was not a party to the litigation by internet companies before the FISC, on September 9, 2014, the government responded to a draft transparency report by prohibiting Twitter from disclosing any finer grained statistics than the five companies had agreed to in the DAG letter. Thus, Twitter was barred from disclosing the exact numbers of National Security Letters (“NSL’s”) and FISA Orders, if any, that it had received about user accounts. Even if it had received zero requests of a particular type, Twitter was not allowed to disclose this.
In this action seeking to lawfully publish either its entire draft transparency report or identified portions thereof, Twitter seeks declarations that the imposition on it of the limits in the DAG’s letter on the disclosure of statistics violates the Administrative Procedures Act and, more fundamentally, that the DAG’s letter and various nondisclosure provisions in FISA and the Electronic Communications Privacy Act (“ECPA”) violate the First Amendment. The Complaint states that, “The U.S. government engages in extensive but incomplete speech about the scope of its national security surveillance activities as they pertain to U.S. communications providers, while at the same time prohibiting service providers such as Twitter from providing their own informed prospective….” (Para.2). “These restrictions [on disclosure of exact numbers of NSL’s and FISA Orders received, including zero] 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.” (Para.6).
In February 2015, amicus briefs on behalf of Twitter were filed by media and technology companies, organizations devoted to privacy and freedom of the press, and by the EFF on behalf of a telecom and internet company that were both required to remain anonymous because of a gag order imposed in connection with their receipt of National Security Letters. Although there was no evidence that Twitter had been subject to FISC orders, in its reply of March 5 and during oral argument on May 8, the government argued, among other things, that the district court should defer to the FISC in regard to non-disclosure obligations imposed in connection with FISC orders.