Judge Says USA FREEDOM Act May Scuttle Twitter’s Transparency Lawsuit

Last October, Twitter sued the Justice Department, the U.S. Attorney General, the FBI, and FBI Director James Comey, because the social media platform believed it has a First Amendment right to be fully transparent with its users about the number and nature of national security requests it receives from the government. But with the recent passing of the USA FREEDOM Act, the judge in the case says there may be no need for the lawsuit to move forward.

Twitter’s complaint involves a Jan. 2014 letter from then-Attorney General Eric Holder to a number of tech and online companies (but not Twitter) detailing when and in which formats they could publicly reveal data about national security requests for user account information.

Companies are basically given two options. The first allows the company to give more detailed information about the kind of data requested, but any numerical info would have to be banded in groups of 1,000. So a company could break down the requests into categories like the general number of accounts affected, content-related requests, and non-content requests, but each of those categories can only be published in ranges of 1,000 (i.e. 0-999; 1,000-1,999; etc).

The second option allows the company to provide more precise information about the number of national security requests, by reducing the banding size to groups of 250 (i.e. 0-249; 250-499; etc). The catch is that the company is forbidden from providing additional information about these requests.

Under either of these options, Twitter doesn’t have the freedom to tell its users that it didn’t receive any national security requests, as 0-999 or 0-250 would be the lowest values it could share publicly.

In its complaint, Twitter called out what it believes is hypocrisy on the part of law enforcement.

“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 perspective as potential recipients of various national security-related requests,” wrote Twitter at the time.

On June 3, the day after President Obama signed the FREEDOM Act, which is intended to add more transparency to the national security request process, recently appointed Attorney General Loretta Lynch filed a notice [PDF] with the court to point out that the new legislation includes some new banding options for disclosure reports that allow companies to report data in bands as small as 100 requests.

Lynch also noted that the FREEDOM Act allows recipients of these requests to obtain judicial review, something Twitter had taken issue with in its original complaint.

Twitter responded [PDF] on June 9, saying that the issues raised by Lynch don’t actually relate to the government’s pending motion to have much of Twitter’s complaint dismissed.

Twitter said it will meet and confer with the government “at an appropriate time regarding the potential impact of the [FREEDOM Act] on other aspects of this case.”

But yesterday, the judge in the case disagreed.

In an order [PDF], the judge writes that, “Contrary to Twitter’s position, it does appear to the Court that the USA Freedom Act has provisions pertinent to those at issue in the motion to dismiss and at the heart of Twitter’s Complaint, including permissible disclosure of aggregate data regarding legal process obtained under the Foreign Intelligence Surveillance Act (“FISA”) and the constitutionality of the statutory standards of review applicable to NSLs. Indeed, the Court is concerned that the new legislation moots the claims for relief in Twitter’s Complaint.”

Because the judge wasn’t sure if the two parties had even gotten together to confer in the wake of the FREEDOM Act’s passing, he ordered them to confer before the June 26 deadline for filing supplemental briefs.