A federal judge in Oakland has indicated that she's likely to side with the federal government in its long-running dispute with Twitter Inc. over how much the company can disclose about national security-related requests from the government.

U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California wrote in an order issued Friday morning that the government presented her with new evidence in March arguing there was a reasonable expectation that information Twitter is seeking to publish “would pose grave or imminent harm to national security” if made public.

The new evidence, a declaration filed only to the judge in March by Michael C. McGarrity, acting executive assistant director of the National Security Branch of the Federal Bureau of Investigation, has not been seen by Twitter's lawyers at Mayer Brown. Rogers wrote Monday that she was inclined to conclude that it “cannot be disclosed to counsel for Twitter based upon the national security concerns it raises.”

In an emailed statement, a spokesperson for Twitter said that the company is committed to transparency with its users about how it interacts with governments, including the United States.

“We believe it is vital that the public see the demands we receive, and how we work to strike a balance between respecting local law, supporting people's ability to Tweet and protecting people from harm,” the Twitter spokesperson said. “While Twitter is disappointed by the Court's latest order, we will continue to fight for meaningful transparency. We encourage all users and the public to review our biannual Transparency Report to learn more about our efforts,” the spokesperson said.

Twitter filed suit in October 2014 after federal officials refused to allow the company to publish a draft of its transparency report detailing the number and types of requests the company had received for user information. In particular, the government claimed that the number of national security letters and court orders under the Foreign Intelligence Surveillance Act of 1978 issued to Twitter was classified.

Rogers initially dismissed the suit in late 2015, finding that it was moot after the passage of the USA Freedom Act loosened the government restrictions on publishing some aggregated data. Rogers, however, allowed the company to amend its claims.

U.S. District Judge Yvonne Gonzalez Rogers (Photo: Jason Doiy/ALM)

In July 2017, Rogers denied the government's request for summary judgment in the suit finding that the government's prohibition on publishing Twitter's transparency report amounted to a prior restraint of the company's free speech rights. In Friday's order to show cause, Rogers indicated that she was reconsidering the summary judgment ruling in light of the declaration the FBI's McGarrity filed in camera in March.

“Drafted to support the Government's assertion of the state secrets privilege, the declaration provides an explanation of the Government's basis for restricting the information that can be published in the Draft Transparency Report, and the grave and imminent harm that could reasonably be expected to arise from its disclosure, in far greater detail than the Government provided previously,” the judge wrote.

Rogers found that the declaration met the government's burden to justify classification and restrict disclosure and “that no more narrow tailoring of the restrictions can be made.”

DOJ representatives didn't immediately respond to a request for comment.