Blog: Twitter Fights for Its First Amendment Right

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By: Andrea Mousouris, Associate Articles Editor

Whether we realize it or not, our online activity is being watched. And whether we like it or not, Twitter, among other tech giants, shares our personal data with the U.S. government. Should consumers be aware of what and how much the government asks for? Twitter thinks so.

Twitter is suing the U.S. government in an effort to relax federal restrictions on what the tech company can say publicly about the national security related requests.[1] Defending principles of free speech, Twitter believes the government is violating its First Amendment right by criminalizing the disclosure of the number and type of spying orders it receives.[2]

Consumer technology companies often hold data on suspects that agencies like the National Security Agency are tracking.[3] Many of these agencies routinely request user data from these companies as part of continuing investigations.[4] But for years, technology companies have been limited by the law as to how much they can publicly disclose to their users about these government requests.[5] That has put companies like Twitter, Facebook, and LinkedIn in the difficult position of not being able to let their users know when they hand over their data.

The legality of government spying itself is not at issue in this case; the suit is a dispute about disclosure. Other Internet companies have also protested these restrictions, and in January 2013 the U.S. Department of Justice gave permission to Facebook, Google, LinkedIn, Microsoft and Yahoo to publish the information in bands of 1,000, starting with 0-999.[6] But Twitter’s data requests are much smaller, and so they want the right to tell its users that their accounts do not undergo widespread government surveillance.

On the one side, Twitter’s complaint challenges the basis for adopting a “preapproved disclosure format”, one that constitutes “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.”[7] On the other side, the government argues that in the FBI and National Security Agency’s pursuit of defending the country from real security threats, the more that the world knows about their sources and methods, the greater the security risk.[8] The court will have to decide whether such a risk meets the level of legal scrutiny required to restrict a First Amendment right.

In the mean time, Twitter continues to hope for comprehensive reform from Congress of government surveillance powers.[9] The USA Freedom Act of 2014, introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), would allow companies like Twitter to provide more transparency to its users.[10] But until then, the suit will continue as part of a long battle between the U.S. government and the technology companies that hold information on billions of people.

 

[1] Eric Brader, Twitter Sues U.S. Government Over National Security Data, CNN.COM, http://www.cnn.com/2014/10/07/politics/twitter-sues-u-s-government/ (last updated Oct. 7, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Mike Isacc, Twitter Sues U.S. Government Over Data Disclosure Rules, NEW YORK TIMES.COM, http://bits.blogs.nytimes.com/2014/10/07/twitter-sues-u-s-government-over-data-disclosure-rules/ (last updated Oct. 7, 2014).

[6] Supra Note 1.

[7] Complaint at 47, Twitter Inc. v. The U.S. Government, (N.D. Cal. 2014)(No. 14-cv-4480).

[8] Supra Note 5.

[9] Ben Lee, Taking the Fight for #transparency to Court, Twitter Blog, https://blog.twitter.com/2014/taking-the-fight-for-transparency-to-court (Oct. 7. 2014).

[10] Id.