FBI May Keep Secrets About Its Twitter Investigation
By LawCommentary | Posted on March 15, 2023
The Federal Bureau of Investigation (FBI) requested information from Twitter about some of its users. It said the information was needed for it to properly conduct one of its “classified national security investigations.” Twitter did not want to provide it and claimed the FBI was infringing on its First Amendment rights when it blocked the social media giant from publishing a “Transparency Report.” Twitter sued the FBI and the Attorney General but lost when the district court granted summary judgment to the government.
Twitter appealed but lost again when the Ninth Circuit affirmed the district court’s ruling. In a unanimous opinion on March 6, a three-justice panel of the Ninth Circuit Court of Appeal affirmed the ruling of Presiding Justice Yvonne Gonzalez Rogers of the Northern District of California.
The opinion, authored by Circuit Judge Daniel J. Bress, began with the critical questions that the Ninth Circuit considered in the appeal. He asked whether the FBI’s content-based limit on Twitter’s free speech violated the First Amendment; whether existing national security statutes provide “sufficient procedural protections” to Twitter; and whether due process required the FBI to provide Twitter’s lawyers with access to classified materials.
Bress answered the questions. He said, “We hold that Twitter’s constitutional challenges fail to persuade.” He acknowledged that Twitter wished to “speak on matters of public concern” but concluded that the government’s restrictions were “narrowly tailored in support of a compelling government interest: our security.” The opinion also approved the existing “statutory scheme” regarding permissible disclosures of aggregate data and said the FBI did not have to provide classified documents to Twitter’s attorneys.
The FBI did not seek the names of individual tweeters, just aggregate numbers of Twitter users between July and December 2013. Despite compromises that were reached between the parties during negotiations, Twitter sued because it did not want to comply with the FBI’s order to redact parts of its Transparency Report.
Bress quickly explained some of the background that led to the Circuit Court's opinion. First, he warned that electronic communications like Twitter are used by terrorists and others who “seek to harm the United States. As a result, under a section of the U.S. Code that deals with “Crimes and Criminal Procedure,” federal law permits “counterintelligence access to telephone toll and transactional records.” Thus, the FBI can request “national security letters” (NSLs), which include information about subscribers, billing, and certain transactions. Since the FBI only asked for aggregate data, not the actual content of any communication, it is protected by this Code section. Second, the Foreign Intelligence Surveillance Act (FISA) permits orders for electronic surveillance if certain protections that protect the “secrecy of government surveillance” are met.
The opinion then provided a brief history of government classification of NSL and FIFA documents. Bress explained that all information about the national security legal process was barred from the public until 2014, the year after Edward Snowden disclosed classified material. The government then made a policy change “to achieve greater transparency,” Bress wrote. The next year, the USA Freedom Act of 2015 was passed. It allows people, subject to NSA or FICA nondisclosure agreements, to publicly disclose certain items that turned out to be relevant to this case.
In April 2014, Twitter provided the FBI with a two-page draft of its “Transparency Report,” in which the company sought to provide the public with the aggregate number of NSLs and FISA orders it received from the government. It also gave a “descriptive statement about its exposure to national security surveillance to “express the overall degree of government surveillance it is or may be subject to.”
Twitter asked for clarification about what would be classified and what could be published. They said that publications similar to the “Transparency Report” would be released regularly in the future because Twitter wanted “to educate (its) users about the extent of the federal government’s surveillance requests… and the degree to which Twitter’s platform was safe from secret governmental prying.”
That September, the FBI responded with its “Conclu that information contained in the report is classified and cannot be publicly released.” The specific numbers in the report were “classified and would harm national security.” The FBI would allow “quality” but not “quantity” descriptions. Twitter then sued the Attorney General and FBI director for violating the First Amendment.
After motions by both parties, the district court ruled that the restrictions on Twitter’s speech had been reviewed with “strict scrutiny” because the government was proposing content-based restrictions and prior restraint.” Strict scrutiny is the highest form of judicial review used for constitutional challenges. Under it, the government must show there is a compelling interest in the law and that it is the least restrictive means possibly available to the government.
The Ninth Circuit found that “based on the totality of the evidence…the government had satisfied strict scrutiny.” The opinion said the government had provided specific reasons, explained the “gravity of the risks inherent in disclosure of the information,” and provided “a sufficiently specific explanation of the reasons disclosure of mere aggregate numbers…could be expected to give rise to grave or imminent harm to the national security.”
Bress further clarified that “While we are not at liberty to disclose the contents of the classified materials that we reviewed,” the court’s analysis “provided granular details regarding the threat landscape and national security concerns…” He said “we are able to appreciate why Twitter’s proposed disclosure would risk making our foreign adversaries aware of what is being surveilled and what is not surveilled-if anything at all.
“Given these concerns and this fuller backdrop, we are willing to accept the main conclusions… which express generally why revealing the information Twitter wishes to disclose would significantly harm the government’s national security operations by signaling to our adversaries what communication channels to avoid and which to use.” He concluded that “Twitter’s arguments to the contrary are unpersuasive.”
The opinion also found no problem with the government’s actions that followed the Supreme Court’s procedural safeguards against censorship and gave Twitter all necessary due process. Finally, it ruled that the government did not violate due process when it refused to allow Twitter’s attorney access to classified material that was submitted during the case. He said, “This argument lacks merit” and he noted that Twitter’s lawyer had received unclassified versions of the documents he requested.
The opinion concluded, “The government may not fend off every First Amendment challenge by invoking national security. But we must apply the First Amendment with due regard for the government’s compelling interest in securing the safety of our country and its people. We hold here that, both as a matter of substance and procedure, the government’s restriction on Twitter’s speech did not violate the First Amendment.”