Twitter and the US Constitution’s First Amendment protections are never a straight-forward topic – whether because the super-influential social platform is accused, though mostly wrongly, by its users of violating their own rights in this area – or because, as in the case highlighted now by the EFF and the ACLU, Twitter’s own rights are said to be jeopardized by the government.
The can of worms opened in this particular case concerns Twitter’s ongoing, six-year legal efforts to be allowed to publish secret law enforcement surveillance orders aimed at allowing the authorities to gain access to Twitter users’ information. These were initially a part of the company’s Transparency Report for 2014.
In 2014, the FBI reviewed Twitter’s draft report and decided to block its publication in the portion that would reveal to the public the number of US government’s foreign intelligence surveillance orders issued over a period of six months. Twitter then sued, referencing its free speech (in this case, information sharing) rights under the First Amendment.
The case has dragged on for years, resulting in the dismissal last April of the First Amendment argument, moving the process into the appeals phase. And now the EFF is joined by the ACLU (American Civil Liberties Union) in filing an amicus brief to the Ninth Circuit Court of Appeals, that the court is yet to decide whether to take into consideration.
The document filed by the two non-profits argues that the trial court’s ruling was unacceptably brief in addressing the First Amendment questions, and that the single paragraph failed to respect what the Supreme Court earlier established to be “the most serious and least tolerable infringement” on First Amendment protections – namely, that the government is under legal obligation to live up to stringent rules and scrutiny (i.e., establish extremely serious and imminent, and irreparable resulting harm) that justifies speech to be censored before it even happens.
The US government is able to demand that tech companies reveal user information through national security letters and FISA courts, and also can also prevent said companies from disclosing that the orders had been issued, received, and acted upon.
