Twitter sues over government surveillance

In a new spat over government spying, social media giant Twitter sued the U.S. Department of Justice and the Federal Bureau of Investigation on Tuesday over gag orders that keep spying requests secret.

Twitter accuses the government of violating its First Amendment right to free speech by criminalizing the periodic disclosure of the number and type of spying orders it receives. Emails, messages, and other user information are subject to Foreign Intelligence Surveillance Act (FISA) orders and National Security Letters (NSL)—court-ordered surveillance in a legal process established by Congress to detect threats to national security.

The validity of government spying itself isn’t at issue here, said Claude Barfield, an intelligence expert and contributor at the American Enterprise Institute. “There are people who would fight that … but this is all about disclosure,” Barfield told me. “They want to be able to tell the world what they’ve been asked to do and what they did.”

Those involved in jury or grand jury proceedings are sworn to secrecy during court cases. But the permanent gag orders on FISA and NSL requests are so strong, Twitter claims the government prevents companies from even saying when they don’t receive requests.

Whistleblower Edward Snowden's revelations about the government’s electronic spying program prompted companies to seek to give their customers a sense of privacy by being more transparent about government interaction. Google, Facebook, Yahoo, LinkedIn, and Microsoft settled their own dispute with the Justice Department in February. The agreement allows them to disclose requests in ranges like 0-999.

But Twitter was not involved in those negotiations. After months of trying, Twitter says, the Justice Department refused to budge further. Twitter’s complaint now rests with the U.S. District Court in San Francisco.

On one side, Barfield told me, transparency is a marketing tool to give users a sense of having more privacy with one company over another. On the other side, the government argues America’s enemies can learn things from knowing more about what companies the government is watching.

In theory, a highly organized perpetrator could sign up for accounts with several companies and monitor which ones stop reporting zero requests, said Julian Sanchez, a senior fellow with the libertarian Cato Institute and critic of national spying methods. The court will have to decide whether such a hypothetical scenario meets the level of legal scrutiny required to restrict a First Amendment right.

Twitter is not the only company suing over FISA and NSL issues, and legislative moves like the House-passed “USA Freedom Act” would give companies more freedom to disclose information about government requests. But Twitter’s lawsuit enters a world much different than when Snowden first ignited surveillance debates about privacy and national security.

Terrorist groups like ISIS have captured the public’s attention—including on Twitter—with Hollywood-worthy production in propaganda. Hundreds of people from Western countries like Britain, Australia, and the United States have traveled to the Middle East to fight for the militant group, and some of them still maintain a presence on social media.

“No doubt we have a few domestic wackos with an unhealthy interest in ISIS, and they have a few fighters (or relatives of fighters) foolishly using services like Gmail,” Sanchez said. But most intelligence-gathering on ISIS is authorized by a 1981 executive order, not the FISA process at question here, he said.