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To Save Secrecy Lawsuit, Twitter Must Challenge DOJ’s Decision to Classify Surveillance Requests

This month, a federal judge dismissed Twitter’s lawsuit challenging limits on the disclosure of government requests for information on Twitter users, pressing the company to file an amended complaint contesting the government’s decision to classify such requests.

The case, Twitter, Inc. v. Lynch, began in 2014 after the U.S. Department of Justice (DOJ) prohibited Twitter from releasing a report that listed the aggregate number of surveillance requests the company had received pursuant to the Foreign Intelligence Surveillance Act (FISA). The surveillance requests sought information about Twitter users in connection with national security investigations. The FISA restricts public disclosure of certain details about surveillance requests. Interpreting these non-disclosure provisions, the DOJ determined that the aggregate number of surveillance requests received by Twitter constitutes classified information that may not be released publicly.

Twitter brought suit claiming that the DOJ had improperly invoked the secrecy provisions of the FISA to prohibit publication of the aggregate data in violation of the First Amendment. Focusing on the “unlimited duration” of the government’s decision, the company argued that “the interest in secrecy does not last forever” and that at some point, the release of information about government surveillance requests would no longer harm national security.

On May 2, 2016, a District Court judge from the Northern District of California dismissed the amended complaint, holding that before Twitter could proceed with its constitutional claims, it must first challenge the government’s decision to designate the aggregate surveillance data as classified. “In the absence of a challenge to the decisions classifying that information,” Judge Yvonne Gonzalez Rogers wrote, “Twitter’s Constitutional challenges simply do not allege viable claims.”

Noting that the government had refused to permit disclosure of the aggregate data because the information was classified, the court emphasized that “[t]he First Amendment does not permit a person subject to secrecy obligations to disclose classified national security information.” Rather than challenge the actual classification decision, Twitter had contested the FISA’s non-disclosure provisions in general and the government’s interpretation of those provisions. The court ruled that the company could not pursue its First Amendment claims unless it demonstrated that the government improperly classified the aggregate data in the report.

Throwing the company a lifeline, Judge Gonzalez Rogers gave Twitter until May 24 to file a further amended complaint challenging the classification decision. Doing so may prove difficult, however, as “Twitter has conceded that the aggregate data is classified.”

The decision marks the latest development in a push by media companies to loosen restrictions on the disclosure of statistics about government surveillance requests. BuzzFeed, NPR, The Washington Post, and several other organizations submitted amicus briefs in the Twitter lawsuit urging the court to permit Twitter’s claims and to restrict such “open-ended gag orders.”

© 2021 Proskauer Rose LLP. National Law Review, Volume VI, Number 138
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About this Author

Associate

Yasmin Emrani is an associate in the Litigation Department at Proskauer Law Firm. She graduated from University of California, Berkeley, School of Law, J.D., 2015, and previously attended Cornell University School of Industrial & Labor Relations, B.S., 2010, where she made the Dean's List.

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