Los Angeles Times

Platform can’t divulge ‘national security’ info

An appeals court rules for the FBI in blocking Twitter from detailing the agency’s requests for user informatio­n.

- By Kevin Rector

Twitter may not publicly quantify the number of times the FBI demands user informatio­n from it for national security investigat­ions, a federal appellate court ruled Monday.

The three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the FBI was justified in blocking the social media giant from publishing aggregate counts of such requests in its biannual Transparen­cy Report online because doing so could jeopardize national security.

Circuit Judge Daniel Bress, an appointee of President Trump, wrote that although the court acknowledg­ed “Twitter’s desire to speak on matters of public concern,” the “government’s restrictio­n on Twitter’s speech is narrowly tailored in support of a compelling government interest: our Nation’s security.”

The decision affirms a similar ruling by a lower district court judge in 2020.

Bress was joined in his decision by two other conservati­ve judges: Carlos Bea, who was appointed by President George W. Bush, and Lawrence VanDyke, a Trump appointee who also wrote a concurring opinion.

Attorneys for Twitter and for the federal government did not respond to requests for comment.

Some observers criticized the decision as a blow to the 1st Amendment rights of people and entities such as Twitter that find themselves caught up in national security cases or want to publish informatio­n about them.

“This ruling is really underminin­g those 1st Amendment protection­s for anyone who gets swept up in a super-secret government investigat­ion,” said Andrew Crocker, senior staff attorney for the Electronic Frontier Foundation, which had filed a brief in support of Twitter.

Twitter first filed its lawsuit challengin­g the FBI’s directive not to publish the figures during the Obama administra­tion in October 2014.

Legal wrangling over disclosure­s of how often the government requests informatio­n from social media companies and just what kind of informatio­n agencies wanted erupted at the start of that year.

That’s when big companies such as Google and Facebook said they wanted to disclose more about government surveillan­ce on their platforms in the wake of Edward Snowden’s revelation­s about the vast scope of U.S. surveillan­ce efforts.

In response, the U.S. government agreed to allow companies to release informatio­n about the number of informatio­n requests they had received, but with limits.

The government said the companies could report only the number of requests in “bands” of 1,000. That is, companies could report receiving between zero and 999 such orders, but could not provide more detail or specify the exact number of requests they’d received.

They also could not disclose that they had received no such requests in any given period.

In April 2014, Twitter provided the FBI with a draft of its latest Transparen­cy Report, in which it quantified the number of requests for user informatio­n it had received from the FBI in much smaller increments.

The report was going to quantify “national security letters,” through which the government can request subscriber informatio­n and billing records in national security cases. It was also going to quantify orders under the Foreign Intelligen­ce Surveillan­ce Act, or FISA, which allows for court-ordered surveillan­ce in real time or the release of stored content and other records by a company such as Twitter.

Twitter officials wanted to say how many of each sort of request it had received from the government by increments not of 1,000, but of 25. They also wanted to be able to say whether the company had received no such requests.

The FBI pushed back, ordering Twitter not to publish the report because it included classified informatio­n that would harm national security if released.

Twitter responded by filing suit, arguing that the restrictio­ns were “an unconstitu­tional prior restraint and content-based restrictio­n on, and government viewpoint discrimina­tion against, Twitter’s right to speak about informatio­n of national and global public concern.”

The government disagreed, though the details of its arguments were obscured because they were filed under seal.

In its decision Monday, Bress said the court had reviewed those records and determined that the government had met its burden of proving the restrictio­ns were necessary. It was unclear Monday whether the panel’s decision will be appealed.

Crocker, of the Electronic Frontier Foundation, said he was “very disappoint­ed” with the ruling and hoped it would be challenged.

Action by the government to block publicatio­n of material in advance — known as “prior restraint” — is subject to the strictest legal standard of review, and it has been rejected in incredibly important cases in the past, Crocker said.

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