Twitter headquarters, located at 1355 Market St, San Francisco. (Photo: Jason Doiy/ALM)

Is Twitter's Surveillance Transparency Fight Over?

In 11 pages, U.S. District Judge Yvonne Gonzalez Rogers shut down Twitter's six-year quest to include the government's surveillance requests in the company's 2014 Draft Transparency Report. Largely relying on confidential declarations, the ruling maintains the cloaked mechanisms for national security legal process requests on social media and other U.S. communications companies.

Rogers wrote that Twitter's pursuit of declaratory judgement allowing the social media platform to share information on these inquiries without government approval "merely underscores the tension between the First Amendment and national security and the future impact of the proceedings."

Twitter wanted to include information in its Transparency Report about the number of national security letters and Foreign Intelligence Surveillance Act orders it has received, as well as a statement about the overall degree of government surveillance on the platform.

However, the government has said even the number of requests is confidential or restricted information.

For more on the future of law, sign up for the weekly briefing What's Next.

The judge found the government met the standard of strict scrutiny and granted summary judgement based, in part, on classified declarations from three assistant directors of the National Security Branch of the FBI.

"The declarations explain the gravity of the risks inherent in disclosure of the information that the government has prohibited Twitter from stating in its Draft Transparency Report, including a sufficiently specific explanation of the reasons disclosure of mere aggregate numbers, even years after the relevant time period in the Draft Transparency Report, could be expected to give rise to grave or imminent harm to the national security," Gonzalez Rogers wrote. "The Court finds that the declarations contain sufficient factual detail to justify the government's classification of the aggregate information in Twitter's 2014 Draft Transparency Report on the grounds that the information would be likely to lead to grave or imminent harm to the national security, and that no more narrow tailoring of the restrictions can be made."

But the case might not be over, yet.

Rogers did grant Twitter and its Mayer Brown counsel leave to amend its claims under Freedman v. Maryland, to show that the classified portions "do not satisfy the procedural safeguards required for such a prior restraint of speech." But in its current form, the judge decided that the second amended complaint did not offer a challenge under Freedman.

"Nowhere in the SAC does Twitter seek declaratory or injunctive relief requiring the government to comply with any procedural safeguards, such as temporal limitations on prohibition orders, or government-initiated judicial review, required by Freedman," she said.

In a Tweet Monday, Vijaya Gadde, Twitter's legal policy and trust and safety lead, said, "After a six year battle, we're disappointed by the result but twice as committed to the fight. Transparency matters. Protecting civil liberties matters. Especially now. We feel a responsibility to take these stands and we will continue to do so."