Ninth Circuit Tells Twitter It Can’t Reveal Exactly How Many National Security Letters It Receives Because The DOJ Showed It Some Scary Stuff

In 2014, Twitter sued the DOJ over its National Security Letter (NSL) reporting restrictions, which limited the company from producing transparency reports with much transparency in them. NSLs were only allowed to be reported in bands. And what broad bands they were. If Twitter received 20 NSLs, it had to report it as 0-499. If it received 498, it had to use the same band. And the band started at zero, so even if Twitter didn’t receive any, it would still look like it did.

After a lot of litigation back-and-forth, the federal court finally dismissed Twitter’s First Amendment lawsuit in 2020, claiming the government had said enough things about national security to exit the lawsuit and continue to limit NSL reporting to bands of 500.

Twitter appealed. The Ninth Circuit Court of Appeals has now weighed in. It says basically the same thing: the government has a national security interest in restricting NSL reporting from NSL recipients. And that interest outweighs Twitter’s First Amendment interest in providing more detailed information in its annual transparency reports.

The factor in this decision [PDF] is the government’s ex parte presentations to the appellate judges. According to the court, the presentation made it very clear that smaller reporting bands would let terrorists and criminals gain the upper hand. [Cue ominous music.]

While we are not at liberty to disclose the contents of the classified materials that we reviewed, our analysis under the narrow tailoring prong depends principally on the knowledge we gleaned from our review of that material. The classified materials provided granular details regarding the threat landscape and national security concerns that animated the higher-level conclusions presented in the unclassified declarations. The classified declarations spell out in greater detail the importance of maintaining confidentiality regarding the type of matters as to which intelligence requests are made, as well as the frequency of these requests. Against the fuller backdrop of these explicit illustrations of the threats that exist and the ways in which the government can best protect its intelligence resources, we are able to appreciate why Twitter’s proposed disclosure would risk making our foreign adversaries aware of what is being surveilled and what is not being surveilled—if anything at all.

The thing about ex parte presentations is that they’re non-adversarial. It’s basically the government running the show, pointing out only the things that agree with their desired outcome, and presumably a bunch of jargon that makes things that may not actually be a threat to national security sound like a threat to national security.

That being said, I’m glad the Ninth Circuit actually forced the government to submit something in support of its national security claims. Most courts don’t. The mere invocation of the state secrets privilege is often all that’s needed to dismiss a lawsuit.

Part of the government’s argument is somewhat more amusing. Sounding like an exasperated middle-manager dealing with an last-minute time off request, the DOJ claims that if it lets Twitter do it (utilize narrower reporting bands) then it will have to let everyone do it. And that way lies madness.

Mr. Tabb also explained that if Twitter were allowed to make its granular disclosures, other recipients of national security process would seek to do the same. And the result would be an even greater exposure of U.S. intelligence capabilities and strategies.

Well, yeah. It probably would need to let others do it, too. But I doubt this would result in the sort of data mining by our nation’s enemies that will finally tip the War on Terror in their favor. Terrorists and criminals use social media services. They also know governments routinely request user info and other data/communications when performing investigations. Unless the transparency reports are linked to unredacted NSLs containing targeted account names, it unlikely that breaking these numbers down just a bit more would let investigation targets know something they don’t already know.

Twitter can ask the Supreme Court to review this case. But given that the Supreme Court has denied certification to two national security-related lawsuits in recent months, it seems unlikely this will be the case it decides it needs to review. The government wins. And the public will have to continue settling for its half-assed transparency.