Nearly two years ago, as a result of a series of stories based on classified documents that Edward Snowden leaked to the media, America and the world became aware of the extent of the National Security Agency's massive surveillance apparatus. We also learned that the government had compelled many of America's largest technology providers -- including Microsoft, Yahoo, Google, AOL, Facebook, Skype, and Apple -- to participate in their efforts, requiring them to give NSA access to millions of people's private data housed on those services.
The public reaction was swift. The details about the scale of NSA's surveillance activities made many people, both at home and abroad, question the security of their data, as well as the role of their service providers in giving the NSA access to it. A report from the ACLU and Human Rights Watch examined how government surveillance undermines press freedom, the public's right to information, and the right to counsel. A separate report from New America's Open Technology Institute looked at the negative effects the NSA's programs have on the U.S. economy, American foreign policy, and the security of the Internet as a whole.
The tech companies were quick to respond. Many companies sought to add statistics about national security requests for customer information to the transparency reports on broader law enforcement requests that some of them were already publishing. Initially the government resisted, but the companies claimed that unless they could disclose more details about the data requests they received, the public would be left in the dark about their actual practices. Finally, in January 2014, the Department of Justice relented, agreeing to allow the publication of at least broad bands of certain types of national security information requests, subject to a number of other restrictions, including a six-month delay between the publication date and the period covered by the report.
One company that was not a party to the settlement, Twitter, wanted to go further. For example, the company wanted to use narrower, and more informative, reporting bands than permitted in the settlement agreement. Importantly, Twitter also sought the right to tell its customers and the broader public if it had not received any requests for particular types of information. In April of last year, the company sent to the Justice Department a draft of the transparency report it wanted to release. Five months later, the department determined that the proposed report contained classified information -- without specifying which part of it did -- and, hence, indicated Twitter could not be publicly released under the current laws.
Twitter decided to sue, asking a federal district court to declare that the government had violated the company's First Amendment rights. Their filing observes that "Twitter is a unique service built on trust and transparency," adding that the value of the service depends, in part, on the users' ability to share information "without undue fear of government surveillance." The company asserted that the government "engages in extensive but incomplete speech about the scope of its national security surveillance activities" as they relate to data obtained from the companies, but those same companies are prohibited "from providing their own informed perspective."
Twitter noted that it was not seeking to disclose the targets or contents of the information requests, since doing so might indeed jeopardize ongoing investigations, but only the existence of the requests. The company asserted that, absent a clear and compelling reason for doing so, the government's prohibition on publishing a transparency report in a manner that is most useful to its customers represents an unconstitutional prior restraint of free speech.
In February, groups ranging from BuzzFeed and First Look Media to National Public Radio and the Washington Post filed a friend-of-the-court brief to support Twitter, as did a phone company and an internet company (reported to be Verizon and Google or Yahoo) which the judge required to file using pseudonyms because they are already before an appeals court in another case over the right to disclose government data requests. The media and writers' brief claims that the government's prohibition on full disclosure "strikes at the heart of the First Amendment's structural protections of the democratic process." Other groups have weighed in as well.
The district court is scheduled to hear arguments in the case at the end of the month. The process is just beginning, and the wheels of justice move slowly. But Twitter has indicated it is in the fight for the long haul.
Because of its strong, principled defense of the First Amendment and of the public's privacy rights and right-to-know, The Constitution Project is proud to recognize Twitter as one of its Constitutional Champions for 2014. Colin Crowell, Twitter's Vice President for Global Public Policy, will accept the award on the company's behalf at TCP's annual gala on April 22 at the offices of Jones Day in Washington, D.C. To find more information on the event, or to purchase tickets, visit TCP's website.