Twitter is fighting to disclose how many times the government has secretly accessed its users’ data — and a judge may soon allow the company to do so. Twitter’s fight has been ongoing since 2014, and the company recently saw progress when it was allowed to publish two national security letters.
The government uses national security letters (NSLs) to extract user data from tech companies that are often unwilling to hand it over without a legal fight.
The letters are not reviewed by a judge and are instead issued directly by the FBI. They’re also often accompanied by indefinite gag orders that prevent companies from ever disclosing that they received the letters, or notifying their users that they were targeted for surveillance.
In a somewhat similar case, Microsoft is challenging the constitutionality of gag orders accompanying warrants.
Twitter argued today that it should be allowed to describe the number of NSLs it receives from the government in greater detail. Twitter and other tech companies are currently allowed to disclose these numbers in ranges of 500, and, although Twitter was allowed last month to reveal it had received two national security letters, the company can only list these letters in its semiannual transparency report in a range of 0 – 499 — an intentionally vague arrangement.
Twitter’s attorney, Lee Rubin, said today that the disclosure limitations created an “Orwellian situation” for the company and hindered its First Amendment right to speak freely about the letters it receives.
The Justice Department’s argument to counter is that allowing Twitter to disclose more specific numbers about the numbers of national security letters it receives would jeopardize national security by giving America’s adversaries too much information about when and how the government surveils Twitter users. Julia Berman, an attorney for the Justice Department, argued that the FBI doesn’t need to justify the secrecy around national security letters on a case-by-case basis because even aggregate disclosure could harm investigations.
Rubin dismissed the government argument that specificity about NSLs would harm national security. “Transparency reports show trends where the government has used well-known monitoring and surveillance tactics. It shows, already, all of the trends anyone could possibly want to know of whether one provider is less monitored or more monitored,” he said.
Remember, this is not about disclosing the precise requests or the users targeted, simply the number of requests received.
Rubin, however, faced blunt questions from U.S. District Court Judge Yvonne Gonzalez Rogers and may have even set Twitter’s case back when he interrupted Berman’s statements. This triggered a pet peeve of Judge Gonzalez Rogers (and women everywhere) who has spoken publicly about her frustration with male lawyers who interrupt their female counterparts. “It’s entirely inappropriate to do that,” she chastised Rubin. “I don’t know if you do it because she’s younger or because she’s a woman.”
Rubin later apologized for cutting off Berman.
The case stems from a 2013 transparency report that Twitter wanted to publish, in which it presumably included specific numbers about the number of national security letters it received. The government declared that, as written, the transparency report was classified and could not be made public. Twitter sued the Justice Department in 2014, challenging the classification of the transparency report.
“Twitter remains unsatisfied with restrictions on our right to speak more freely about national security requests we may receive. We continue to push for the legal ability to speak more openly on this topic in our lawsuit against the U.S. government, Twitter v. Lynch,” Twitter’s associate general counsel Elizabeth Banker wrote in a blog post last month. “We continue to believe that reporting in government-mandated bands does not provide meaningful transparency to the public or those using our service.”
This case is one in a long line of battles Twitter has fought over more transparent reporting of government requests. And even if it wins, this is still a tiny translucent chip off of the opaque obelisk that is the government’s security apparatus.
Judge Gonzalez Rogers is expected to rule soon on whether or not Twitter should be allowed access to more information about how the government decided to classify the transparency report.
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