Feds Try To Have Most Of Twitter’s Transparency Lawsuit Dismissed



Last October, in response to efforts by the federal government to limit what websites can reveal about national security requests regarding its users, Twitter sued the Justice Dept., U.S. Attorney General Eric Holder, the FBI and its Director James Comey. The DOJ fired back with a recent filing asking the court to dismiss most of the complaint, saying that federal guidelines do not restrict Twitter’s First Amendment rights.

For those unfamiliar with the Twitter suit, it involves the company’s attempts to provide users with transparency data on requests for user information from law enforcement and governmental agencies. Twitter is allowed to provide detailed information on the number and type of request made by local police and even federal authorities, except in the case of certain “national security requests.”

A Jan. 27 letter from AG Holder to multiple major Internet players provided guidelines on when and how these companies could reveal data about such requests.

Companies could either provide details on the type of request made, but would have to provide vague data regarding the actual number of requests, rounding up or down to the nearest increment of 1,000. A second option allows companies to provide more precise numerical data (in increments of 250), but only if it provides no additional information about requests for content.

To Twitter, which was not a recipient of this letter, this means the company is forced “either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether,” which it maintains is a violation of its constitutional rights.

“Contrary to plaintiff’s allegations, the United States Government firmly supports a policy of appropriate transparency with respect to its intelligence activities,” reads the partial motion to dismiss [PDF] filed last week by the DOJ. “Indeed, the letter Twitter purports to challenge is based on a determination by the Director of National Intelligence to declassify significant information in order to increase transparency by permitting companies like Twitter to report to their users and to the public information about national security legal process in a manner that mitigates harm to national security.” [italics in original]

The feds argue that there must be a balance between transparency and the need to maintain the secrecy of information that could “reveal sensitive investigative techniques and sources and methods of intelligence collection.”

It claims that the info Twitter wants to share “is properly protected classified national security information, the disclosure of which would risk serious harm to national security,” and that legal precedent backs up the government’s stance that restrictions on publishing such content do not violate the First Amendment.

Twitter also accuses the government of violating the Administrative Procedure Act, which sets forth the rules by which federal agencies create new regulations.

In its complaint Twitter wrote that imposing the Holder letter on the company is “in excess of statutory jurisdiction, authority, or limitations… and the requirements set forth in the DAG Letter were imposed on Twitter without the observance of procedure required by law.”

But in its motion to dismiss the APA violation claim, the government claims the letter is “permissive, advisory guidance” that does not constitute “final agency action” reviewable under the APA, “nor does it restrict plaintiff’s speech in any way.”

Instead, argues the DOJ, the authority for these restrictions resides in the Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court, which is where the government believes the matter should be considered.

“[T]his Court should defer to the FISC to determine the scope, meaning, and legality of its own orders, as well as of the statute that is given effect through those orders,” reads the motion.

Twitter now has four weeks to reply to the motion.

[via WaPo]

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