Tuesday, July 11, 2017

Twitter can proceed with free speech case against DOJ, federal judge rules

A federal judge has given Twitter permission to proceed with a First Amendment lawsuit brought against the Department of Justice over restrictions limiting how tech companies can disclose details about government surveillance requests.

Twitter sued the government in 2014 after the Justice Department barred the company from revealing the exact number of requests for user data it’s received from federal authorities, but the government countered by claiming disclosing that data would be detrimental to national security.

U.S. District Judge Yvonne Gonzalez Rogers ruled against the government’s bid for summary judgement Thursday and said it’s restrictions constitute a prior restraint on Twitter’s freedom of speech and “subject to the highest level of scrutiny under the First Amendment.”

“The government has not presented evidence, beyond a generalized explanation, to demonstrate that disclosure of the information in the draft transparency report would present such a grave and serious threat of damage to national security as to meet the applicable strict-scrutiny standard,” the judge ordered.

“Even where courts have hesitated to apply the highest level of scrutiny due to competing secrecy and national security concerns, they have nevertheless held that heightened or rigorous scrutiny of such restrictions on speech is required,” she added.



Anonymous said...

A rare commodity, a judge with brains and the will to push back on the overuse of the term National Security. What does the exact number of requests for user data mean beyond the fact that's how many people are being surveilled? The actual number may really be a small fraction as authorities look at people who interact with the original person surveillance has been requested for. It's not like the identities are going to be published by the government. Once again it is a case of social media extending their power beyond their entitlements.

Anonymous said...

Anon 2:52,

It seems that you are taking two opposing positions. In one sentence you say that the judge made the right decision and in another, you say that it is a case of "social media extending their power beyond their entitlements."

Those two positions don't seem to jive to me.

This ruling does not mean that Twitter has won the case or that the DOJ has lost. What it does mean is that the case will go forward to a trial.

The rules / Executive order on this issue (see below) allow for "broad range of numbers" in disclosure of requests from the Justice Department. Functionally, I am not sure there is a real difference between saying "we received 15,200 - 15,300 requests" as opposed to saying "we received 15,244 requests."

It should also be noted that the DOJ was relying on Executive Order 13526 stating the exact numbers of National Security Letters (NSL's) could be disclosed. (The EO allowed for general numbers, but not specific numbers.)

That EO was signed by President Barack Obama in 2009. In other words, this was not a restriction on speech by the political right, but rather the left in the person of Obama.

In my opinion, the judge got it right and for right now, this is a prior restraint of speech.

The trial may open up other arguments, but for now, it seems clear that the government never met its burden for dismissal by summary judgement.