​Companies forced to anonymously fight back against FBI surveillance

Reuters/Dado Ruvic

Reuters/Dado Ruvic

Two companies are asking the United States government to let Twitter publish details about secret requests the social media site has received from law enforcement, but the Justice Department says national security requires those entities to not be named.

The fate of the United States
government’s ability to silently serve tech companies with a type
of court order that compels firms to hand over private user data
to federal authorities is currently being fought, predictably,

A lawsuit filed in the
Northern District of California late last year by Twitter, the
social networking platform, seeks to have a federal court judge
say that the Federal Bureau of Investigation’s practice of
serving companies with National Security Letters, or NSLs – a
type of administrative subpoena issued often with gag orders and
almost always absent judicial oversight – violates the

Now in what some have already hailed as being Kafkaesque, two
companies that want to advocate before the court against NSLs on
Twitter’s behalf have been told that they can only do so on the
condition that they do so anonymously.

The two firms – described in court documents only as a phone
service provider and “an internet company” that are past
NSL recipients – submitted an amicus curiae
, or
friend-of-the-court filings, on Wednesday this week in support of
Twitter’s case. In compliance with the court’s orders, however,
the names of these companies whose arguments may very well help
rewrite the government’s use of secret administrative subpoenas
as it exists today must remain underseal [

According to a 19-page brief filed in District Court on Tuesday,
attorneys with the Electronic Frontier Foundation are now
representing “Corporations 1 2” as those unnamed entities
attempt to convince Judge Yvonne Gonzalez Rogers that national
security need not require that companies are kept from telling
their customers how often they’re served with secret court

“The Supreme Court as well as courts across the land have
recognized that a prior restraint – preventing speech in the
first instance instead of imposing a penalty after the speech –
is a serious and dangerous step,”
EFF legal fellow Andrew
Crocker said in a statement this week. “Yet with NSLs, we
have prior restraints imposed at the government’s whim, without
any judicial oversight or review.”

“Our clients want to talk about their experience with these
NSLs, but the government is unconstitutionally shielding itself
from any criticism or critique of their procedures,”

When Twitter filed suit against US Attorney General Eric Holder
last November, the company said it opted to do as much only after
its attempts to disclose basic details about NSLs were quashed by
the government over supposed national security concerns. NSLs can
compel a company to provide authorities with sensitive user
records, and unbeknownst to the customer in question if
accompanied by a gag order. Companies including Twitter have
asked that the government let them publish details about these
requests, albeit largely unsuccessfully.

“Specifically, if the government will not allow us to publish
the actual number of requests, we want the freedom to provide
that information in much smaller ranges that will be more
meaningful to Twitter’s users, and more in line with the
relatively small number of non-national security information
requests we receive,”
Jeremy Kessel, Twitter’s senior
manager for global legal policy, argued last July before the matter was
brought to court.

Three months later, Twitter sued Holder in his official capacity
as head of the Justice Department – the executive branch agency
that oversees the FBI – and said the microblogging serve was
seeking to publish its full Transparency Report and “asking
the court to declare these restrictions on our ability to speak
about government surveillance as unconstitutional under the First

“It’s our belief that we are entitled under the First
Amendment to respond to our users’ concerns and to the statements
of US government officials by providing information about the
scope of US 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
” the vice president of Twitter’s legal department,
Ben Lee, blogged in October.

Last month, the US government once again countered Twitter’s argument.

“The additional material that Twitter seeks to publish is
information that the Government has judged is properly protected
classified national security information, the disclosure of which
would risk serious harm to national security,”
the DOJ wrote
in a motion filed with the court in early January.

READ MORE: DOJ calls for dismissal of Twitter transparency
lawsuit over gov’t records requests

As of last week, attorneys for the DOJ and Twitter are slated to
once again square off in court next month on March 31 in Oakland,
California. Meanwhile, “Corporations 1 2” are not the only
firms filing amici on Twitter’s behalf: Court records obtained by
RT reveal that no fewer than a dozen other groups, including a
journalistic rights organization and some of America’s biggest
media outlets, have written briefs on Twitter’s behalf that were
entered with the court this week – name attached and all.

“Edward Snowden’s revelations in 2013 about the National
Security Agency’s surveillance programs sparked an intense and
ongoing international debate over the proper balance between
privacy interests and national security,”
representing Buzzfeed, First Look Media, National Public Radio
and the Washington Post, among others, argue in one of the briefs
filed this week [PDF]. “But if ‘debate on public issues’
is to be “uninhibited, robust and wide-open,”’ – and if the First
Amendment is to continue to preserve the conditions for informed
debate in our democracy – the government must be held to a high
burden before fundamental First Amendment freedoms can be
sacrificed in the name of national security.”

“Imposing a classic prior restraint, communications service
providers such as Twitter are prohibited from publishing – and
the media are prevented from reporting on – the aggregate numbers
of National Security Letters,”
attorneys for the media
groups argued.

The Freedom of the Press Foundation, a nonprofit journalism
rights group, filed a brief of their own with the court on
Tuesday this week, as well, again citing the disclosures
attributed to Snowden, one of its own board members, by
acknowledging that, “after eighteen months of new revelations
published in some of the nation’s largest newspapers, the public
is currently engaged in the most robust and important debate
about government surveillance in the United States
” since
the 1970s [PDF].

Lawyers for Cloudfare, Sonic.net, Wickr and Wikimedia Foundation
“small Internet companies and communication service
providers that want to be open and honest with our users and the
public about the number of national security requests we receive
from the government
,” according to their own brief – filed
paperwork with the court as well [PDF].

“The outcome of this case is important for small internet
companies and communication service providers working to be
transparent about their practices and provide meaningful
information to the public. Reporting national security requests
in the manner approved by the Justice Department obfuscates
rather than illuminates the volume of national security requests
a small company receives. We simply want to offer useful,
accurate information and respond to the concerns of our
their attorneys wrote.

As do the two unnamed amicus who submitted briefs this week
through the EFF, according to their filing. The brief entered
this week reveals that both entities have previously received
NSLs in their own right from the FBI and fought them in federal
court, but the rulings in those matters have each been stayed for
the time being.

“Both amici support Twitter’s desire to publish a
transparency report that provides more specific information about
the number of NSLs Twitter has received,”
that filing reads.

“As they explained to the Ninth Circuit, ‘transparency is a
core concern for both [amici] and their customers,’ and it is
therefore ‘vital to [them] that government requests for data be
disclosed to customers and discussed in the public debate, and
that in the rare situations where a gag may be appropriate, . . .
courts play their necessary and discerning oversight role to
ensure that First Amendment and other rights are adequately

“This brief will aid the court in understanding amici’s
pending Ninth Circuit challenge to the NSL statute’s gag
provision, a proceeding the government characterizes as likely
controlling of Twitter’s claims,”
the EFF wrote. “This
brief corrects misstatements made by the government in this case
regarding amici’s cases and the appeal, and will otherwise
provide insight to the court regarding amici’s cases.”

Last month, the White House said it was proposing rules that
would require the FBI to “presumptively terminate National
Security Letter nondisclosure orders at the earlier of three
years” after the opening of an investigation. Meanwhile, Julian
Assange, the editor of antisecrecy group Wikileaks, claimed in a
2012 interview with RT that “hundreds of national security
letters every day
” are being issued by the US government.

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