#TwitterWantsToTweetTransparency

Earlier this month, Twitter filed a lawsuit (Twitter v. Holder) against the US Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”), claiming they prevented Twitter from publishing statistics pertaining to the number and type of US Government surveillance requests received. Twitter asserts that the publication ban is an unconstitutional violation of their First Amendment rights.

In pre-action communications, Twitter sent the Defendants a draft transparency report containing the aggregate number of surveillance requests received. The Defendants denied Twitter’s request to publish, claiming that the information contained was deemed classified as it did not adhere to the “framework for reporting data about government requests.”[1]  This framework was recently set forth in a settlement agreement between Google (et al) and the Attorney General.

Google, Microsoft, Facebook, Yahoo and LinkedIn filed Motions for Declaratory Judgement last year claiming that the statutory publication ban of surveillance request statistics violated their First Amendment Rights. In early 2014, the parties reached a negotiated agreement allowing the plaintiffs to publish data in one of two pre-approved disclosure formats; each approved format allowed the publishing of figures in bands of one thousand (e.g., 0-999 National Security Letters (“NSL”) requests received).

Twitter did not participate in this action, speaking out publicly against it after the agreement was announced.  The criticisms centered around the belief that the bands are too broad and that any disclosures would require “sufficient precision to be meaningful.”  Furthermore, they hold that the framework should not apply to them as they were not party to the action and should not be bound by its outcome.

It is likely that the Defence will rely on a notice adjoined to the Settlement Agreement which announced the DOJ’s intention that the Agreement not be limited to the parties of the action. The notice stipulates, “It is the Government’s position that the terms outlined in the [Settlement Agreement] define the limits of permissible reporting for the parties and other similarly situated companies.”[2]

While the definition of ‘similarly situated companies’ has yet to be further elaborated upon, it is likely that the defence will argue that such a framework was designed to be a working model for all such disclosures. Twitter argues in the action that the DAG Letter does not legally bind Twitter, and even if it does, Twitter is not ‘similarly situated’ to the other companies.

“It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance—including what types of legal process have or have not been received,” wrote Ben Lee, Twitter Vice President, in a blog post. “We should be free to do this in a meaningful way, rather than in broad, inexact ranges.”

The lawsuit marks the latest in a series of courtroom battles held in the wake of former National Security Agency (NSA) consultant Edward Snowden’s exposé on the US Government’s surveillance activities. At its crux, each suit marks attempts by US-based social media giants to increase transparency by reporting figures of government surveillance requests on user accounts.

Snowden first brought the issue of Silicon Valley’s participation in government surveillance projects in a ground-breaking whistleblower interview with The Guardian (2013).  The interview has been called the biggest intelligence leak in the NSA’s history.[3] Post Snowden, Social Media companies have made strides to win back pubic confidence; part and parcel to this effort has been the voluntary reporting of the numbers of government surveillance requests received.

The legal battle that Twitter has waged has left a lot on the line for public policy. A decision by the Court will create a precedent on what restrictions should be placed on disclosure; one that will legally bind and dictate the future handling of the release of such information. An outcome in favour of Twitter could have the effect of overruling the Settlement Agreement and increasing disclosure capabilities for social media companies. US President Barack Obama identified increasing transparency as a priority in a speech delivered in 2014: “We will also enable communications providers to make public more information than ever before about the orders that they have received to provide data to the government.”[4]  Such a ruling would ease online social media users concerns and help mend the public distrust created by Snowden’s exposé. It would also solidify Twitter’s place as a leader in transparency reporting, an enviable position in the fight to gain and maintain user trust and loyalty.

Jennifer R Davidson is an IPilogue Editor and a J.D. candidate at Osgoode Hall Law School.