Journalism and the Law students at Temple University foray into the fluid and fractious field of the First Amendment.
Monday, January 5, 2015
Tech Titans v. Big Brother: Do We Have the Right to Know Who's Watching Us?
Lauren C. Brown
Journalism and the Law
Twitter filed a lawsuit on October 7, 2014 against the Department of Justice and the Federal Bureau of Investigation over restrictions they placed regarding how much information Twitter can disclose to the public about the National Security Letters (NSL) requests it receives (Zetter). This First Amendment case, alleging illegal prior restraint, was brought forth to the U.S District Court in the San Francisco Division of the Northern California District. Twitter’s attorneys sought a declaratory judgment against the DOJ and FBI, stating Twitter is “requesting relief from prohibitions on its speech in violation of the First Amendment” (Miller 2). It argues in the request that the U.S. government was not specific enough in what kind of speech Twitter is prohibited from publishing concerning the NSL requests it received.
Twitter, along with other electronic communication services like Yahoo! and Google, received a Deputy Attorney General (DAG) Letter, a type of gag order, saying it could only publish a certain range of how many surveillance reports it receives. For example, Twitter could only publish the number of reports received in a range of 0-999. On April 1, 2014, Twitter submitted a transparency report to the FBI and DOJ, which stated the type and amount of surveillance requests it receives, in hopes of publishing the report to its users. This report did not follow the provisions of the DAG Letter. Five months later in September, the defendants responded to Twitter and said, “Information contained in the [transparency] report is classified and cannot be publicly released.” Twitter argues that this response is too vague, as it does not specify which information is classified, which also prohibits the company from publishing any aspect of the report. The company claims this is an illegal prior restraint, as the gag order is too broad and does not serve a compelling governmental interest. The judgment also states, “the Federal Bureau of Investigation reiterated that Twitter could engage only in speech that did not exceed the preapproved speech set forth in the DAG Letter…Imposition of the requirements set forth in the DAG Letter on Twitter violate the Administrative Procedure Act.” Twitter seeks agreement of this (Miller 2-5).
Under the NSL statute and the Federal Stored Communications Act section 2709, the FBI is authorized to issue NSLs to electronic communication services like Twitter to disclose subscriber information and toll billing records information in the hopes of preventing international terrorist attacks or clandestine intelligence activities. It also imposes that these services cannot disclose the information the government seeks to the public. This nondisclosure obligation is imposed by the FBI unilaterally without prior judicial review. Twitter argues that this nondisclosure order is unconstitutional under the First Amendment because it prohibits electronic communication services like Twitter from publishing important and essential information to the public. The complaint says these nondisclosure provisions “are not narrowly tailored to serve a compelling governmental interest, including because they apply not only to the content of the request.” Twitter seeks the following in the case: a declaration that the FBI, DOJ and related parties have violated its First Amendment rights under the prior restraint clause; an injunction against these parties so that Twitter may publish parts/all of its transparency report with receiving punishment or criminalization; compensation for this violation of its First Amendment rights; and any further action that its lawyers see fit (Miller 3-5, 17-18).
Similar cases have been brought up regarding First Amendment Rights with companies such as Google, Facebook, Microsoft, and LinkedIn. On June 18, 2013, Google filed a motion for declaratory judgment, arguing it had a First Amendment right to publish two aggregate unclassified numbers about its NSL requests that were prohibited from publishing. In January 2014, Google and DOJ made a compromise, where Google and other companies would dismiss the FISC actions against the government in return for the Department of Justice’s agreement that the companies could publish information about the U.S. government surveillance of their networks in one of two preapproved disclosure formats. Separately, at least two U.S. District Courts have found the nondisclosure provision under FISA to be unconstitutional under the First Amendment (Miller 3).
The court is likely to rule in favor of Twitter in the case, because according to Twitter, “this prohibition on Twitter’s speech is not narrowly tailored to serve a compelling governmental interest, and no such interest exists that justifies prohibiting Twitter from disclosing its receipt (or non-receipt) of an NSL or the unlimited duration or scope of the prohibitions” (Miller 17). If the court agrees that the relevant issue is whether the DAG letter in its current form represents an illegal prior restraint, the government will first have to prove that there is a clear and present danger in informing the public of the NSL requests. In other words, the amount and type of information the requests try to obtain from Twitter must disrupt public safety and national security. If there would be no such issues with public safety and national security after the public is informed about the requests, then the analysis will stop and Twitter will win the case. However, if the government can prove that there is a clear and present danger in informing the public of the requests, then it must prove next that the speech, or Twitter’s public release of the NSL requests, is the cause of the danger. If the government can prove this, then it will have to also prove that the speech will not stop the danger. If the government proves that the speech will not stop the danger, it must then find that there are no alternatives to stopping the speech other than prior restraint. Finally, if the government proves that there are no alternatives to the prior restraint, it must prove that the terms of the prior restraint, or DAG letter, are no broader than necessary (Hopkins 67-68). In this case, and to the argument of Twitter’s lawyer, the DAG letter was not narrowly tailored and was vague in how many requests Twitter could release. In addition, it will be difficult for the government to prove that there is a compelling governmental interest in prohibiting Twitter from publishing the amount and kind of requests it receives.
Hopkins, W. Wat. "Chapter 4: Prior Restraint." Communication and the Law. Northport, Ala.: Vision, 2014. 55-73. Print.
Miller, Eric D., Michael A. Sussman, James G. Snell, and Hayley L. Berlin. "COMPLAINT FOR DECLARATORY JUDGMENT, 28 U.S.C. §§ 2201 and 2202."