Twitter is not allowed to publicly quantify how often the FBI requests user data for national security investigations, a federal appeals court ruled Monday.
The three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the FBI had the right to bar the social media giant from publishing the total number of such requests online in its semi-annual “Transparency Report” on the grounds that it would undermine national security. could jeopardize.
Circuit Judge Daniel Bress, a President Trump appointee, wrote that while the court recognized “Twitter’s desire to speak on matters of public interest,” the “government’s restriction on Twitter’s speech is closely aligned in support of an overriding government interest: the security of our nation.”
The decision confirms a similar ruling by a lower district court judge in 2020. Bress was joined in his decision by two other conservative justices: Carlos Bea, who was nominated by President George W. Bush, and Lawrence VanDyke, a Trump appointee who also wrote a concurring opinion.
Lawyers from Twitter and the federal government did not respond to requests for comment.
Some observers criticized the decision as a blow to the First Amendment rights of people and entities like Twitter that get caught up in national security matters or want to publish information about them.
“This ruling really undermines the First Amendment protections for anyone caught up in a top-secret government investigation,” said Andrew Crocker, senior staff attorney for the Electronic Frontier Foundation, who had filed a letter in support of Twitter.
Twitter first filed its lawsuit against the FBI’s directive not to publish the numbers during the Obama administration in October 2014.
Legal wrangling over revelations about how often the government requests information from social media companies and exactly what kind of information agencies wanted erupted early that year. That’s when big companies like Google and Facebook said they wanted to reveal more about government surveillance of their platforms in the wake of Edward Snowden’s revelations about the vast scope of the US surveillance effort.
In response, the U.S. government agreed to allow companies to release information about the number of requests for information they received, but with limits. The government said the companies could only report the number of requests in “bands” of 1,000. That is, companies could report that they had received zero and 999 such orders, but could not give more details or specify the exact number of requests they had received. They also failed to disclose that they had not received such requests in a specific period of time.
In April 2014, Twitter provided the FBI with a draft of its latest transparency report, in which it quantified the number of user information requests it had received from the FBI into much smaller increments.
The report would quantify “national security letters,” which allow the government to request subscriber information and billing information in national security cases. It would also quantify orders under the Foreign Intelligence Surveillance Act, or FISA, which allows a company like Twitter to conduct real-time surveillance on court orders or release stored content and other data.
Twitter officials wanted to say how many of each kind of request it had received from the government, not in increments of 1,000, but of 25 — meaning it had received between 1 and 25 such requests, or between 25 and 50. She wanted to be able to say whether the company has not received such requests.
The FBI pushed back and ordered Twitter not to publish the report because it contained classified information that would harm national security if released.
Twitter responded by filing a lawsuit, arguing that the restrictions were “an unconstitutional prior restriction and content-based restriction on, and discrimination from the government’s point of view against, Twitter’s right to speak about information from national and global public interest.”
The government disagreed, although the details of its arguments were unclear because they had been submitted under seal. The reason: Government officials said they contained classified information.
In its decision on Monday, Bress said the court had reviewed that data and found the government had met its burden of proof to prove the restrictions were necessary. It was unclear Monday whether there will be an appeal against the panel’s decision.
Crocker, of the Electronic Frontier Foundation, said he was “deeply disappointed” with the ruling and hoped it would be challenged.
Government measures to pre-block the publication of material — known as “prior restraint” — are subject to the strictest legal review standards, given the inviolability of the 1st Amendment, and it has been overruled in incredibly significant cases in the past, Crocker said .
Perhaps most famously, in 1971 the U.S. Supreme Court rejected the government’s argument for blocking newspapers from publishing the Pentagon Papers, a secret investigation of U.S. decision-making in Vietnam.
Crocker said the 9th Circuit panel had strayed from the norms around prior restraint that protected free speech for years and set a “very, very bad precedent for the 1st Amendment in national security matters.”
In a 2022 report, Twitter said the US was responsible for 20% of all government information requests worldwide during the period considered, which was the most of any single country.
