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At the heart of this case is Plaintiff Twitter, Inc.’s challenge to the Government’s determination that Plaintiff may not lawfully publish certain information about the extent to which it has received national security legal process from the Government.
This is an appropriate and sensible framework for resolving the key question at issue in this case: whether Plaintiff has a First Amendment right to publish information that the Government has determined is properly classified and the disclosure of which reasonably could be expected to cause serious damage to national security.
Plaintiff insisted that its counsel be granted a security clearance for access to classified information that might be at issue in resolving its claims. The Government made clear its opposition to that request, and that issue was unresolved when the Court ordered the Government to submit its summary judgment motion on the merits, including any classified submission. The Government expressed concern about this manner of proceeding because the classified explanation it would prepare for the Court to demonstrate that the information Twitter sought to publish is classified would itself contain sensitive national security information that was broader and more detailed than Plaintiff or its counsel would know or have reason to learn.
...with the question of access by Plaintiff’s counsel unresolved, the Court ordered the Government to provide its classified explanation on summary judgment or be precluded from doing so later. To avoid such preclusion, the Government submitted the Classified Declaration of FBI Executive Assistant Director Steinbach, see Notice of Lodging of Classified Declaration concurrently with its summary judgment motion to explain why the information Twitter sought to publish is properly classified, including why disclosure of the information reasonably could be expected to result in serious damage to national security.
As a result, I am responsbile for the protection of classified national security information within the National Security Branch of the FBI and in matters affecting the national security mission of the FBI, including the sources and methods used by the FBI in the collection of national security and criminal information for national security investigations."
After careful personal consideration of the matter, the Attorney General [Barr] has asserted the state secrets privilege to protect the following categories of classified national security information that appear in the Classified Steinbach Declaration:
(i) Information Regarding National Security Legal Process that Has Been Served on Twitter Information regarding national security legal process that has been served on Twitter, including not only the quantity and type of any such process, but also particular information regarding the subject mattter of certain FBI national security investigations as well as the communications targeted with national security legal process.
(ii) Information Regarding How dversaries May Seek to Exploit Information Reflecting the Government's Use of National Security Legal Process[/b] Information describing how adversaries might exploit provider-specific data regarding receipt of national security legal process, both with respect to Twitter and with respect to any other provider.
(iii) Information Regarding the Government's Investigative and Intelligence Collection Capabilities Information would reveal or tend to reveal the Government's collection capabilities.
(iv) Information Concerning the FBI's Investigation of Adversaries and Awareness of their Activities Information revealing specific targets of investigation and activities of adversaries of the United States.
In this case, both EAD Ghattas and Acting EAD McGarrity have determined that Plaintiff’s counsel lacks the required “need-to-know” to access the sensitive national security information at issue.
Moreover, the Court, in its July 6, 2017 Order denying the Government’s summary judgment motion, indicated that, to fulfill the standard of scrutiny the Court held to be applicable, the Government’s presentation must include consideration of specific detail such as
“the volume of any requests involved,” and “an articulation of the inference the Government believes can be drawn from the information Twitter itself seeks to publish.
1. Twitter brings this action for declaratory judgment pursuant to 28 U.S.C. §§ 2201
and 2202, requesting relief from prohibitions on its speech in violation of the First Amendment.
2. The U.S. government engages in extensive but incomplete speech about the scope of its national security surveillance activities as they pertain to U.S. communications providers,
while at the same time prohibiting service providers such as Twitter from providing their own informed perspective as potential recipients of various national security-related requests.
3. Twitter seeks to lawfully publish information contained in a draft Transparency Report submitted to the Defendants on or about April 1, 2014. After five months, Defendants informed Twitter on September 9, 2014 that “information contained in the [transparency] report is classified and cannot be publicly released” because it does not comply with their framework for reporting data about government requests under the Foreign Intelligence Surveillance Act (“FISA”) and the National Security Letter statutes. This framework was set forth in a January 27,2 014 letter from Deputy Attorney General James M. Cole to five Internet companies (not including Twitter) in settlement of prior claims brought by those companies (also not including Twitter) (the “DAG Letter”).
4. The Defendants’ position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether. Defendants provided no authority for their ability to establish the preapproved disclosure formats or to impose those speech restrictions on other service providers that were not party to the lawsuit or settlement.
5. Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider’s disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to
FISA that it has received, if any. In fact, the U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request.