Twitter Sues US Government over Electronic Surveillance Transparency

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 8, 2014

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Social media giant Twitter has filed a lawsuit against the United States government over expansive, and secretive, surveillance operations that the company claims violate its right to free speech.  Twitter’s lawsuit is the latest legal action in an increasingly tense dispute between Silicon Valley tech companies and Washington, D.C. lawmakers over online privacy rights and government surveillance.

Federal Surveillance Statutes Prohibit Disclosure of Search

At the heart of Twitter’s legal complaint is the prohibited transparency about federal government surveillance operations that gather information from online social media services.  Under the federal Stored Communications Act (SCA) and Foreign Intelligence Surveillance Act (FISA), government officials are entitled to request information about communications, subscriber personal and billing information, and other business records that reveal social media user data.  Further, both the SCA and FISA specifically prohibit tech companies like Twitter from disclosing the searches to its subscribers.

In the aftermath of 2013’s release of classified material about government surveillance by Edward Snowden, the social media barons of Silicon Valley expressed reservation about discrete intelligence gathering of online user data.  In the months following Snowden’s release, Google, Microsoft, Facebook, Yahoo!, and LinkedIn filed a First Amendment action claiming that social media companies had the right to disclose to users how often the government requested user information, and how many users were affected.  In January, 2014, the DOJ settled the action by enabling communications providers to publish US government surveillance information in one of two preapproved disclosure formats.

In closing the legal action filed by five large communications companies, the Deputy Attorney General crafted a letter – known as the DAG Letter – defining under what conditions that the five petitioners and other similarly situated companies who were not involved in the settlement may release information about government surveillance.  Twitter’s lawsuit argues first that it is not similar to the petitioners who settled, and second that the DOJ does not have the authority to apply the terms of the settlement to all electronic communication providers.

Twitter Request to Be More Transparent Denied

Twitter’s problems with federal government surveillance boiled over earlier this year when the company attempted to release a Transparency Report that featured a more expansive release of government actions than the DAG letter authorized, including information about the number of government surveillance orders, comparison of orders Twitter received versus other companies, and a descriptive statement about Twitter’s exposure to national security surveillance.  Prior to release, Twitter sought review of the report from the DOJ and the FBI to ensure the company was not in violation of any statutory restrictions on surveillance transparency.  After five months of review, the FBI denied Twitter’s request, and restricted the information that Twitter could release to the DAG Letter criteria.

Twitter responded by filing the pending lawsuit alleging violation of the First Amendment right of free speech.  The Twitter lawsuit claims that the settlement agreement between the DOJ and five tech companies earlier this year is not valid law, and argues that imposing the DAG Letter restrictions on Twitter violates the company’s constitutional rights.  Going further, Twitter asserts that the nondisclosure provisions of the SCA and FISA are unconstitutional because the company has a right to provide its users with information about government surveillance requests.

Twitter Blog Post Explains Legal Action

In a blog post announcing its lawsuit, Twitter articulated its belief that social media providers have the right to disclose information about federal surveillance operations.  The company’s official stance is summed up:

It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.

The full post is here, and provides detail on the company’s efforts for transparency and its plan to take the fight to a federal courthouse.  As tech companies continue to push back against government surveillance – see Apple’s new encryption software – Twitter’s lawsuit will force the judiciary to provide some insight as to the permissible scope of federal prohibition on transparent surveillance reports.

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