Companies forced to anonymously fight back against FBI surveillance
The fate of the United States government’s ability to silently serve tech companies with a type of court order that compels firms to hand over private user data to federal authorities is currently being fought, predictably, cloak-and-dagger.
A lawsuit filed in the Northern District of California late last year by Twitter, the social networking platform, seeks to have a federal court judge say that the Federal Bureau of Investigation’s practice of serving companies with National Security Letters, or NSLs – a type of administrative subpoena issued often with gag orders and almost always absent judicial oversight – violates the Constitution.
Now in what some have already hailed as being Kafkaesque, two companies that want to advocate before the court against NSLs on Twitter’s behalf have been told that they can only do so on the condition that they do so anonymously.
— Parker Higgins (@xor) February 17, 2015
The two firms – described in court documents only as a phone service provider and “an internet company” that are past NSL recipients – submitted an amicus curiae brief, or friend-of-the-court filings, on Wednesday this week in support of Twitter’s case. In compliance with the court’s orders, however, the names of these companies whose arguments may very well help rewrite the government’s use of secret administrative subpoenas as it exists today must remain underseal [PDF].
According to a 19-page brief filed in District Court on Tuesday, attorneys with the Electronic Frontier Foundation are now representing “Corporations 1 & 2” as those unnamed entities attempt to convince Judge Yvonne Gonzalez Rogers that national security need not require that companies are kept from telling their customers how often they’re served with secret court orders.
“The Supreme Court as well as courts across the land have recognized that a prior restraint – preventing speech in the first instance instead of imposing a penalty after the speech – is a serious and dangerous step,” EFF legal fellow Andrew Crocker said in a statement this week. “Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review.”
“Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures,” Crocker said.
When Twitter filed suit against US Attorney General Eric Holder last November, the company said it opted to do as much only after its attempts to disclose basic details about NSLs were quashed by the government over supposed national security concerns. NSLs can compel a company to provide authorities with sensitive user records, and unbeknownst to the customer in question if accompanied by a gag order. Companies including Twitter have asked that the government let them publish details about these requests, albeit largely unsuccessfully.
“Specifically, if the government will not allow us to publish the actual number of requests, we want the freedom to provide that information in much smaller ranges that will be more meaningful to Twitter’s users, and more in line with the relatively small number of non-national security information requests we receive,” Jeremy Kessel, Twitter’s senior manager for global legal policy, argued last July before the matter was brought to court.
Three months later, Twitter sued Holder in his official capacity as head of the Justice Department – the executive branch agency that oversees the FBI – and said the microblogging serve was seeking to publish its full Transparency Report and “asking the court to declare these restrictions on our ability to speak about government surveillance as unconstitutional under the First Amendment.”
“It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of US government officials by providing information about the scope of US government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges,” the vice president of Twitter’s legal department, Ben Lee, blogged in October.
Last month, the US government once again countered Twitter’s argument.
“The additional material that Twitter seeks to publish is information that the Government has judged is properly protected classified national security information, the disclosure of which would risk serious harm to national security,” the DOJ wrote in a motion filed with the court in early January.
As of last week, attorneys for the DOJ and Twitter are slated to once again square off in court next month on March 31 in Oakland, California. Meanwhile, “Corporations 1 & 2” are not the only firms filing amici on Twitter’s behalf: Court records obtained by RT reveal that no fewer than a dozen other groups, including a journalistic rights organization and some of America’s biggest media outlets, have written briefs on Twitter’s behalf that were entered with the court this week – name attached and all.
“Edward Snowden’s revelations in 2013 about the National Security Agency’s surveillance programs sparked an intense and ongoing international debate over the proper balance between privacy interests and national security,” attorneys representing Buzzfeed, First Look Media, National Public Radio and the Washington Post, among others, argue in one of the briefs filed this week [PDF]. “But if ‘debate on public issues’ is to be “uninhibited, robust and wide-open,”’ – and if the First Amendment is to continue to preserve the conditions for informed debate in our democracy – the government must be held to a high burden before fundamental First Amendment freedoms can be sacrificed in the name of national security.”
“Imposing a classic prior restraint, communications service providers such as Twitter are prohibited from publishing – and the media are prevented from reporting on – the aggregate numbers of National Security Letters,” attorneys for the media groups argued.
The Freedom of the Press Foundation, a nonprofit journalism rights group, filed a brief of their own with the court on Tuesday this week, as well, again citing the disclosures attributed to Snowden, one of its own board members, by acknowledging that, “after eighteen months of new revelations published in some of the nation’s largest newspapers, the public is currently engaged in the most robust and important debate about government surveillance in the United States” since the 1970s [PDF].
Lawyers for Cloudfare, Sonic.net, Wickr and Wikimedia Foundation – “small Internet companies and communication service providers that want to be open and honest with our users and the public about the number of national security requests we receive from the government,” according to their own brief – filed paperwork with the court as well [PDF].
“The outcome of this case is important for small internet companies and communication service providers working to be transparent about their practices and provide meaningful information to the public. Reporting national security requests in the manner approved by the Justice Department obfuscates rather than illuminates the volume of national security requests a small company receives. We simply want to offer useful, accurate information and respond to the concerns of our users,” their attorneys wrote.
As do the two unnamed amicus who submitted briefs this week through the EFF, according to their filing. The brief entered this week reveals that both entities have previously received NSLs in their own right from the FBI and fought them in federal court, but the rulings in those matters have each been stayed for the time being.
“Both amici support Twitter’s desire to publish a transparency report that provides more specific information about the number of NSLs Twitter has received,” that filing reads.
“As they explained to the Ninth Circuit, ‘transparency is a core concern for both [amici] and their customers,’ and it is therefore ‘vital to [them] that government requests for data be disclosed to customers and discussed in the public debate, and that in the rare situations where a gag may be appropriate, . . . courts play their necessary and discerning oversight role to ensure that First Amendment and other rights are adequately protected.’”
“This brief will aid the court in understanding amici’s pending Ninth Circuit challenge to the NSL statute’s gag provision, a proceeding the government characterizes as likely controlling of Twitter’s claims,” the EFF wrote. “This brief corrects misstatements made by the government in this case regarding amici’s cases and the appeal, and will otherwise provide insight to the court regarding amici’s cases.”
Last month, the White House said it was proposing rules that would require the FBI to “presumptively terminate National Security Letter nondisclosure orders at the earlier of three years” after the opening of an investigation. Meanwhile, Julian Assange, the editor of antisecrecy group Wikileaks, claimed in a 2012 interview with RT that “hundreds of national security letters every day” are being issued by the US government.