The Defendants’ position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.
-Twitter, Inc. complaint against the DOJ and FBI, October 2014.
Transparency, the objects of social media, and the US government, often conflict. In its transparency report released in July, Twitter Inc. went into some depth about the prohibitions it faced regarding the reporting of the surveillance actually employed against its users by the US intelligence community. The very nature of that discussion could itself be criminalised, specifically in disclosing the exact number of national security letters (NSLs) and Foreign Intelligence Surveillance Act (FISA) court orders received.
According to Ben Lee, a vice president of Twitter, “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.”
Efforts made earlier in the year to push the Department of Justice (DOJ) and the Federal Bureau of Investigation for clearer guidelines on what can be disclosed have come to nought. Such inaction did not square well with the efforts on the part of Senate Judiciary Committee Chairman Patrick Leahy (D-VT), whose USA FREEDOM Act of 2014 Twitter welcomed. Conduct of the DOJ, on the other hand, was quite something else. When its response came, it was not pretty.
Much of this came to light in a draft transparency report submitted by Twitter to the DOJ in April. A hand had been extended: go through the report and indicate what can and can’t be released to the users. After what seemed to be an attack of lethargy, Twitter was informed on September 9 that “information contained in the [transparency] report is classified and cannot be publicly released”, being non-compliant with the “framework for reporting data” regarding FISA and NSL statutes.
In frustration, the Twitter team have decided to seek a declaratory judgment in the United States District Court of Northern California “requesting relief from prohibitions on its speech in violation of the First Amendment.” The complaint challenges the very basis for adopting a “preapproved disclosure format”, one that constitutes “an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern.”
The company further claims that US government surveillance of its user accounts is limited (though, without numbers, we can only speculate). The company would like to ease concerns on the part of users by providing information, for example, of “what types of legal process have not been received by Twitter”.
Much of this drive lies in the desperate – for it is desperate – attempt by government and intelligence community officials to limit the entire discussion about surveillance. Restricting the questions may be one thing; but keeping responses down to a minimum has been a far easier thing to do. According to the brief, officials have engaged “in their own carefully crafted speech on the issue of US government surveillance” while cutting off the means communication providers have responded “to leaks, inaccurate information reported in the media, statements of public officials, and related public concerns regarding the providers’ involvement with and exposure to US surveillance efforts.”
As the transparency report of Twitter from July shows, the battle to keep information cocooned and restricted is increasing in its intensity. Global removal requests, which fall in the category of government requests and complaints regarding illegal content from authorised reporters, have been on a steady rise. “We have received 14% more removal requests during the first half of 2014 than we received during the prior reporting period.” The countries making the grade here were Turkey (186), France (108) and Russia (32).
Earlier this year, five other technology companies pressed the federal government on matters touching on permissible disclosure, and reached a settlement. That agreement, which did not include Twitter, set out a framework of reporting regarding FISA and NSL requests. The nature of that very agreement, which has become something of holy writ in muzzling technology outlets, is also being challenged.
Twitter is happy to make a self-flattering, aggrandizing case in the legal submission. In its own terms, it has become a formidable tool for the activist, the armies of “game changing” agents that stalk cyberspace while busying themselves with more earthly matters. Twitter “gives a public voice to anyone in the world – people who inform and educate others, who express their individuality, who engage in all manner of political speech, and who seek positive change.” Whether such echo chambers of debate provide genuine platforms for reform and change is a question the company can’t answer.
This action against the DOJ and FBI suggests that Twitter officials are fed up by suggestions that the Silicon Valley world remains uncomfortably close to the government’s prying eyes. The remarks by DOJ spokeswoman Emily Pierce about the technology settlement reached earlier in the year do little to dispel such claims. The government had “worked collaboratively” with the technology companies to reach that settlement allowing them “to provide broad information on government requests while also protecting national security.”
Twitter’s public stance on this is appropriate from the perspective of users, but much more will need to be done to dispel the sense that Silicon Valley and the NSA are two sides of the same, rather counterfeit coin. The company wants distance and integrity from the US surveillance program. It risks getting neither.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org