Twitter to judge: Let us tell everyone exactly how many secret orders we get

Government fights Twitter's attempts at transparency with generic filing.

OAKLAND, Calif.—Twitter has asked a federal judge to decide what seems like a relatively simple question: is it ok to tell the public that the company received a specific number of national security orders, rather than simply a broad range, during a given period of time?
The case began more than two years ago, when Twitter sued the Department of Justice and argued that the federal law that prohibits the company from being more precise is unconstitutional. The government counters that courts should defer to the executive branch with respect to classification and not allow Twitter's request.

Lawyers representing the social media giant and the Department of Justice squared off on Tuesday during a hearing as to whether the judge should immediately rule in the government’s favor on a motion for summary judgment.

In recent years, many tech companies including Twitter have issued transparency reports that show the public how many law enforcement requests, from countries and agencies worldwide, they have received in a given period. Prior to filing the lawsuit, Twitter even went so far as to sent the DOJ a draft transparency report, which has been released in redacted form in court filings. In a letter, the FBI responded that the information contained in the report "is classified, and cannot be released."

Twitter has argued that just as it has been precise in other areas of its transparency report, so too should it be allowed to say how many national security orders it has received from American authorities.

"Even under the most generous First Amendment standard, there is nothing in there that it is a national security harm to say that we received 44 as opposed to 0 to 499," Lee Rubin, a lawyer representing Twitter, said during the Tuesday hearing.

Such bands of numbers (0 to 499, for example) are formally codified in the USA Freedom Act, which was signed into law in 2015.

In court filings, DOJ lawyers have said that allowing Twitter to provide this specific level of information would be detrimental to national security. This assertion is according to a declaration filed by Michael Steinbach, the executive assistant director of the national security branch of the FBI, where he argued that "the disclosure of the information at issue would provide our adversaries a clear picture of the Government’s surveillance activities pertaining to national security investigations." Steinbach also submitted a classified version of his declaration, which has not been made public.

You’re not special

During the Tuesday hearing, US District Judge Yvonne Gonzalez Rogers, an Obama-appointed judge, seemingly rebuked the government at one point and noted that its legal responses did not directly address Twitter’s arguments. "The analysis that has been provided to the court is generic to any company," she said, explaining that there was "nothing in here that is specific to Twitter.

"If I had five different cases, one by Twitter, one my Microsoft, one by Facebook and all the other groups that do this social media stuff that none of us judges do, [Steinbach] could have taken this exact same declaration and cut and paste the declaration, switched out the names of the company and I would have the same generic explanation for why it is that the government wants to do what it wants to do."

Julia Berman, a lawyer for the Department of Justice, repeatedly cited the Steinbach declaration, citing his concern for how potential adversaries might use this more granular information to their advantage. "Any specific number would be impossible to have a showing that that particular number would have harm to national security," Berman said during the hearing.

Berman also referred back to a 2009 appellate decision, Wilson v. CIA, from the 2nd US Circuit Court of Appeals. That case involved Valerie Plame Wilson, a CIA agent who challenged the fact that the agency classified the dates that she worked, forcing them to be redacted in her own memoir. The 2nd Circuit ruled in favor of the CIA, reaffirming that the judiciary should grant the executive branch of government a wide berth when it comes to issues of national security.

Rubin argued that Twitter should be granted further civil discovery as a way to possibly show the unclassified internal deliberative process to bolster its case. "In a case like this, there is no precedent in granting discovery," Berman countered.

Judge Rogers did not rule from the bench on Tuesday, but likely will issue a written opinion in the coming months.