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Twitter Loses in Court Ruling on Releasing FBI Search Data

August 12, 2021 by Tom Ramstack
The. J. Edgar Hoover FBI Building in Washington, D.C.. (Photo by Dan McCue)

Twitter lost another court battle this week in its effort to publicly release data showing when the FBI tapped into customer communications of the social media giant.

Twitter, Inc. wants to release the information for the sake of transparency to its customers.

The FBI argued successfully before an appeals court that release of the data could severely damage national security.

The ruling is another example of ongoing disputes between social media companies and government regulators.

In other recent examples, Congress has held hearings on strategies to clamp down on social media misinformation lawmakers say fans the flames of violent extremism.

Bills pending in Congress would weaken legal protections for companies like Facebook, Twitter and Google if their platforms interfere with civil rights cases, require them to maintain public advertising databases and forbid them from selling users’ personal information to law enforcement without court oversight.

In 2014, Twitter compiled data about the number of court orders the government served on the company during the second half of 2013 to view some of its customers’ messages. The FBI claims it was searching for information on crime and espionage.

The company planned to publish the aggregated data in response to public concerns about government surveillance and privacy of its users.

The FBI blocked any unredacted publication of the data. Twitter sued, arguing it had a right to public disclosure as a matter of First Amendment free speech.

Years of negotiations followed between Twitter and the FBI before a California federal court agreed that a version of the report edited, or redacted, to remove national security risks could be released.

The trial judge ruled in April 2020 that the FBI redacted Twitter’s 2014 transparency report correctly according to U.S. Supreme Court standards. The Court uses a strict scrutiny test for content-based restrictions that seeks to balance free speech against national security risks.

U.S. District Judge Yvonne Gonzalez Rogers agreed with Twitter’s assertion that First Amendment free speech was a key issue when her ruling said, “When the Government restricts speech, it bears the burden of proving the constitutionality of its actions.”

However, the judge disagreed with Twitter’s position that the FBI failed to prove national security was the preeminent concern.

The trial court’s ruling said Twitter’s release of the data without redactions would lead to “grave or imminent harm” to national security.

When Twitter’s appeal reached the Ninth Circuit U.S. Court of Appeals, the company’s attorney said the national security risk was too minimal to justify censorship of the surveillance report.

The risk to national security must be direct, immediate and irreparable to be justified under government standards, which Twitter’s attorney said was not true of the report.

He also compared the Twitter case to film industry censorship rulings that put limits on government authority to ban movies.

The Ninth Circuit ruling goes beyond the immediate case of the 2014 Twitter report, possibly affecting other social media the FBI taps for court-ordered information. Twitter officials want to publish aggregate data on FBI surveillance of its customers on a regular basis.

“That plaintiff has continued to pursue the action merely underscores the tension between the First Amendment and national security and the future impact of the proceedings,” the ruling said.

Justice Department attorneys argued that Twitter is a regulated company that gained its license to use radio bandwidth for messaging by agreeing to conditions set by Congress and the Federal Communications Commission. One of them was to protect national security.

The federal appeals court largely agreed.

During the hearing this week, U.S. Circuit Judge Daniel Bress asked the Twitter attorney, “What’s the comparable First Amendment interest here? The information that your client wishes to disclose was information that the government gave you as your obligation as a regulated company in the United States.”

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