Twitter, Inc. v. Garland
| Decision Date | 06 March 2023 |
| Docket Number | 20-16174 |
| Parties | TWITTER, INC., Plaintiff-Appellant, v. MERRICK B. GARLAND, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation; FEDERAL BUREAU OF INVESTIGATION, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Argued and Submitted August 10, 2021 Seattle, Washington
Appeal from the United States District Court No. 4:14-cv-04480-YGR for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding
SUMMARY[*]
Civil Rights
The panel affirmed the district court's summary judgment for the United States in an action brought by Twitter alleging First Amendment violations arising from the FBI's restrictions on Twitter's publication of a self-described "Transparency Report."
In support of its classified national security investigations the United States served administrative subpoenas and orders requiring Twitter to provide the government with certain information about Twitter users. In its Transparency Report Twitter wished publicly to disclose certain information about the aggregate numbers of these governmental requests that it received between July and December 2013. The FBI determined that the number of subpoenas and orders and related information was classified, and that Twitter's disclosure of this information would harm national security. As a result, the FBI allowed Twitter to release its Transparency Report only in a partially redacted form.
The panel held that Twitter's constitutional challenges failed to persuade. Under this circuit's case law, strict scrutiny applied because the restriction on Twitter's speech was content based. The panel acknowledged that Twitter has a First Amendment interest in commenting on matters of public concern involving national security subpoenas. Nevertheless based on a careful review of classified and unclassified information, the panel held that the government's redactions of Twitter's Transparency Report were narrowly tailored in support of the compelling government interest in national security. Against the backdrop of explicit illustrations set forth in the classified materials of the threats that exist and the ways in which the government can best protect its intelligence resources, the panel was able to appreciate why Twitter's proposed disclosure would risk making foreign adversaries aware of what is being surveilled and what is not being surveilled-if anything at all. Given these concerns and this fuller backdrop, the panel was willing to accept the main conclusions outlined in the unclassified materials, which expressed generally why revealing the information Twitter wished to disclose would significantly harm the government's national security operations by signaling to adversaries what communication channels to avoid and which to use. The panel concluded that the government's redactions of Twitter's Transparency Report did not violate the First Amendment.
The panel next held that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allowed for sufficient procedural protections, which Twitter received here. The panel held that the specific procedural requirements of Freedman v. Maryland, 380 U.S. 51 (1965), which were designed to curb traditional censorship regimes, were not required in the context of government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process because such restrictions do not pose the same dangers to speech rights as do traditional censorship regimes. Even though Freedman's specific procedural framework did not apply, Twitter received considerable process-including some of the process that Freedman envisioned.
Finally, the panel held that due process did not require that Twitter's outside counsel receive classified information by virtue of Twitter filing this lawsuit. Twitter was provided with unclassified versions of the various declarations, which the panel relied upon throughout its opinion. The unclassified declarations provided Twitter with sufficient information by which to advance Twitter's interests before this Court. And although the panel appreciated Twitter's concern that it could not respond to what it did not know, Twitter's interest in the classified information did not rise to the level of constitutional imperative.
Judge VanDyke concluded that the unclassified materials were sufficient to meet the government's burden. Given the "significant weight" a court must afford to the Government's national security factual findings, Judge VanDyke would hold that the Government's unclassified declarations-specifically, the unclassified declaration from Jay S. Tabb, Jr., the new Executive Assistant Director of the FBI's National Security Branch-sufficiently demonstrated that the Government's restrictions on Twitter's speech were narrowly tailored to the compelling interest of protecting national security and safeguarding classified information.
Lee H. Rubin (argued), Donald M. Falk, and Samantha C. Booth, Mayer Brown LLP, Palo Alto, California; Andrew John Pincus, Mayer Brown LLP, Washington, D.C.; Samantha A. Machock, Wilson Sonsini Goodrich Rosati, San Diego, California; for Plaintiff-Appellant.
Lewis S. Yelin (argued) and Scott R. McIntosh, Appellate Staff Attorneys, Civil Division; David L. Anderson, United States Attorney; Jeffrey Bossert Clark, Acting Assistant Attorney General; United States Department of Justice; Washington, D.C.; Stefania M. Porcelli, Assistant General Counsel; Cecilia O. Bessee, Acting Deputy General Counsel; Jason A. Jones, General Counsel; Federal Bureau of Investigation; Washington, D.C.; for Defendants-Appellees.
Andrew G. Crocker and Naomi Gilens, Electronic Frontier Foundation, San Francisco, California; Ashley Gorski, Brett Max Kaufman, and Patrick Toomey, American Civil Liberties Union Foundation, New York, New York; Matthew T. Cagle, ACLU Foundation of Northern California, San Francisco, California; Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, California; David Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, California; for Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union, American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, and American Civil Liberties Union of San Diego and Imperial Counties.
Before: Carlos T. Bea, Daniel A. Bress, and Lawrence VanDyke, Circuit Judges.
In support of its classified national security investigations, the United States served administrative subpoenas and orders requiring Twitter to provide the government with certain information about Twitter users. In a self-described "Transparency Report," Twitter wishes publicly to disclose certain information about the aggregate numbers of these governmental requests that it received between July and December 2013. The FBI determined that the number of subpoenas and orders and related information was classified, and that Twitter's disclosure of this information would harm national security. As a result, the FBI allowed Twitter to release its Transparency Report only in a partially redacted form.
This dispute over what Twitter can and cannot disclose about information it learned as a recipient of national security legal process raises several important questions that lie at the intersection of national security and the freedom of speech: Does the government's content-based limitation on Twitter's speech violate the First Amendment? Do the relevant national security statutes provide sufficient procedural protections to Twitter, consistent with the First Amendment? And does due process require that Twitter's outside counsel be granted access to the classified materials on which the United States relies in objecting to Twitter's proposed disclosure?
We hold that Twitter's constitutional challenges fail to persuade. Although we acknowledge Twitter's desire to speak on matters of public concern, after a thorough review of the classified and unclassified record, we conclude that the government's restriction on Twitter's speech is narrowly tailored in support of a compelling government interest: our Nation's security. We further hold that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allows for sufficient procedural protections, which Twitter received here. Due process likewise does not require that Twitter's outside counsel receive classified information by virtue of Twitter filing this lawsuit.
Although the interests on both sides of this case are weighty, under law the government prevails. We affirm the district court's grant of summary judgment to the United States.
It is widely recognized that electronic communications are used by persons who seek to harm the United States through terrorist activities or other misdeeds. See, e.g., Clapper v. Amnesty Int'l USA, 568 U.S. 398, 402-06 (2013). To that end, federal law gives the United States the authority to obtain information from electronic communication service providers in support of national security investigations. Two such means of obtaining information are relevant here.
First under 18 U.S.C. § 2709, the FBI is empowered to issue certain requests to any "wire or electronic communication...
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