Twitter's new First Amendment lawsuit against the United States government serves as the most recent reminder that in 2014, it's common knowledge that the U.S. not only engages in mass warrantless surveillance of its citizens' electronic communications, but also requires other people and organizations (ranging from your local librarian to multinational tech companies) to spy on American citizens – and won't even let the spies tell us what they're doing.
Consider: just last month, Yahoo won what was hailed as a “major court victory” -- it finally won legal permission to admit that, starting in 2008, the government ordered Yahoo to turn over massive amounts of confidential data on its users, and if Yahoo didn't comply, the company would initially be fined $250,000 per day, with the amount set to double every week: $500,000 per day for the second week, $1 million a day for the third, then $2 million, then $4 million … enough to bankrupt the company in a matter of months.
For over six years Yahoo was forced to do this, and not until late 2014 was it even allowed to say so.
There's also reason to suspect that Apple has been forced to comply with some warrantless information requests.
In November 2013, Apple released its first-ever Transparency Report, which discussed its policies and activities from the period spanning January through June 2013 and contained this statement, “Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”
When Apple released that report, certain sharp-eyed observers suspected that phrase about 215 might be a “warrant canary.” A warrant canary is a statement meant to show that an organization, such as a tech company or even a public library, has not been forced to comply with a secret (and possibly warrantless) government investigation coupled with a gag order. And should the warrant canary later disappear, that suggests the opposite.
The canary died?
Apple has since released two additional Transparency Reports, neither of which repeat the “warrant canary” phrase – which strongly suggests that at some point after June 2013, Apple did receive an order to hand over massive amounts of data under section 215, but was and is forbidden to say so.
Which brings us to Twitter. On Tuesday, Twitter lawyer Ben Lee announced in a public Twitter blog post that the company was suing the government on the grounds that being forbidden to discuss its forced-surveillance activities violated its First Amendment right to free speech:
As part of our latest transparency report released in July, we described how we were being prohibited from reporting on the actual scope of surveillance of Twitter users by the U.S. government. Our ability to speak has been restricted by laws that prohibit and even criminalize a service provider like us from disclosing the exact number of national security letters (“NSLs”) and Foreign Intelligence Surveillance Act (“FISA”) court orders received — even if that number is zero.
It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.
You might wonder: why doesn't Twitter borrow a (presumed) page from Apple's playbook, and publish warrant canaries to disappear as necessary? Given the legally enforced information blackout surrounding the topic it's hard to say for sure, but one possibility is that Twitter wasn't even allowed to do that much.
Last April, Twitter did submit a Transparency Report to the government for approval (possible bonus irony points from the observation that a transparency report requires government approval in a country which styles itself “the land of the free”). However, as Twitter manager Jeremy Kessel explained in a July 2014 post on Twitter's blog:
… in early April, we sent a draft midyear Transparency Report to DOJ that presented relevant information about national security requests, and asked the Department to return it to us, indicating which information (if any) is classified or otherwise cannot lawfully be published. At this point, over 90 days have passed, and we still have not received a reply....
A tangled web
Jameel Jaffer, deputy legal director for the American Civil Liberties Union, responded to news of Twitter's lawsuit by saying:
“Twitter is doing the right thing by challenging this tangled web of secrecy rules and gag orders. If these laws prohibit Twitter from disclosing basic information about government surveillance, then these laws violate the First Amendment. The Constitution doesn’t permit the government to impose so broad a prohibition on the publication of truthful speech about government conduct. We hope that other technology companies will now follow Twitter’s lead. Technology companies have an obligation to protect their customers’ sensitive information against overbroad government surveillance, and to be candid with their customers about how their information is being used and shared.”
Twitter's lawsuit, which was filed with the U.S. District Court for Northern California, can be found in .pdf form here.