Twitter, Inc. v. Lynch

Decision Date14 October 2015
Docket NumberCase No. 14-cv-04480-YGR
Citation139 F.Supp.3d 1075
Parties Twitter, Inc., Plaintiff, v. Loretta E. Lynch, et al., Defendants.
CourtU.S. District Court — Northern District of California

Eric David Miller, Perkins Coie LLP, Seattle, WA, Amanda Lindsay Andrade, Hayley Lara Berlin, Perkins Coie LLP, Michael A. Sussmann, Coie LLP, Washington, DC, James G. Snell, Perkins Coie LLP, Palo Alto, CA, for Plaintiff.

Julia Alexandra Berman, Steven Yale Bressler, United States Department of Justice, Washington, DC, for Defendants.



On June 3, 2015, Defendants Loretta Lynch, et al. , ("the Government") filed a "Notice Regarding Enactment of USA FREEDOM Act of 2015." (Dkt. No. 67.) On June 9, 2015, Plaintiff Twitter, Inc. ("Twitter") filed its own Notice regarding the new legislation. (Dkt. No. 68.) The Court thereafter ordered the parties to file supplemental briefing on the effect of the legislation on both the Government's pending partial motion to dismiss and on the complaint generally, and the parties did so. (See Dkt. Nos. 69, 74, 75, 76, 77.)

On August 28, 2015, the Government filed a Notice of Recent Authority (Dkt. No. 78), attaching a decision of the Ninth Circuit which vacated judgments in several cases pending before it (In re: National Security Letter cases, Ninth Circuit Court of Appeal Nos. 13–15957, 13–16731, 13–16732), and remanded to the district court for further consideration "in light of the significant changes to" 18 U.S.C. sections 2709 and 3511 effected by the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) ("the USA FREEDOM Act" or "the USAFA").

The Court again solicited additional supplemental briefing specifically addressed to whether the USAFA changed the FISA and NSL-related provisions challenged by Twitter in its complaint (i.e. , 18 U.S.C. §§ 2709 and 3511 ) such that the entire action would be moot. The parties filed those additional supplemental briefing on September 29, 2015.

The Court heard the parties' oral arguments on October 13, 2015.

The Court, having carefully considered the parties briefing, their oral arguments, the relevant provisions of the new legislation, and the pleadings in this matter, and for the reasons set forth herein, ORDERS that: (1) the Government's pending motion to dismiss is DENIED AS MOOT ; and (2) on the Court's own motion, Twitter shall file an amended complaint no later than November 13, 2015, in light of the mootness of its constitutional challenges to 18 U.S.C. sections 2709 and 3511 based upon the amendments to those sections worked by the USAFA, or the instant action will be dismissed without further notice as moot.

A federal court may only decide such matters as arise in the context of a genuine case or controversy under Article III of the United States Constitution. Here, Twitter brought: (1) First Amendment challenges to 18 U.S.C. sections 2709(c) and 3511 ; and (2) a challenge under the Administrative Procedure Act ("APA") to an action by the Deputy Attorney General ("the DAG Letter") that Twitter contends was a "final agency action" to regulate the ways in which communications providers could report data on government requests for its customers' information. Subsequently, Congress enacted the USAFA, which amended sections 2709(c) and 3511, and established new statutory mechanisms for public disclosure of requests received by communications providers. Those new statutory mechanisms included disclosure of aggregate data in bands similar to, but narrower and more specific than, those set forth in the DAG Letter. The Court concludes that the changes wrought by the USAFA abrogate all challenges raised in Twitter's complaint, and preclude the Court from providing any effective relief thereon. In the absence of amendments to the complaint to address these changes, dismissal is appropriate.


Twitter's action herein alleges claims for declaratory relief from prohibitions on its speech in violation of the First Amendment. The Complaint alleges, among other things, that Twitter seeks to publish a "Transparency Report" with certain data about legal process it has received from the Government, including requests pursuant to the Foreign Intelligence Surveillance Act ("FISA") and National Security Letters ("NSLs").

A. Underlying Facts

On January 27, 2014, in connection with pending complaints filed with the Foreign Intelligence Surveillance Court ("FISC") by Facebook, Google, Yahoo, Microsoft, and LinkedIn, the Government filed a Notice attaching and referencing the DAG Letter. The Notice to the FISC stated:

The Director of National Intelligence has declassified the aggregate data consistent with the terms of the attached [DAG Letter], in the exercise of the Director of National Intelligence's discretion pursuant to Executive Order 13526, § 3.1(c). The Government will therefore treat such disclosures as no longer prohibited under any legal provision that would otherwise prohibit the disclosure of classified data, including data relating to FISA surveillance. It is the Government's position that the terms outlined in the Deputy Attorney General's letter define the limits of permissible reporting for the parties and other similarly situated companies.

See Complaint, Exh. 2 ("FISC Notice"); see also Complaint, Exh. 1 (the DAG Letter). The DAG Letter "memorialize[d] the new and additional ways in which the government will permit [providers] to report data concerning requests for customer information." (Id. ) The letter stated:

In the summer of 2013, the government agreed that providers could report in aggregate the total number of all requests received for customer data, including all criminal process, NSLs, and FISA orders, and the total number of accounts targeted by those requests in bands of 1000. In the alternative, the provider could separately report precise numbers of criminal process received and number of accounts affected thereby, as well as the number of NSLs received and the number of accounts affected thereby in bands of 1000. Under this latter option, however, a provider could not include in its reporting any data about FISA process received. [¶] The government is now providing two alternative ways in which companies may inform their customers about requests for data. Consistent with the President's direction in his speech on January 17, 2014, these new reporting methods enable communications providers to make public more information than ever before about the orders that they have received to provide data to the government.

(Complaint, Exh. 1.) The DAG Letter went on to set forth, in detail, two different reporting options that a provider could use in disclosing information about the numbers of requests for information they have received, along with limitations on the timing of publication of such numbers. (Id. )

That same date the Government issued a "Joint Statement by Director of National Intelligence James Clapper and Attorney General Eric Holder on New Reporting Methods for National Security Orders."1 The Joint Statement said,

As indicated in the Justice Department's filing with the Foreign Intelligence Surveillance Court, the administration is acting to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, the number of customer accounts targeted under those orders and requests, and the underlying legal authorities. Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers. [¶] This action was directed by the President earlier this month in his speech on intelligence reforms. While this aggregate data was properly classified until today, the Office of the Director of National Intelligence, in consultation with other departments and agencies, has determined that the public interest in disclosing this information now outweighs the national security concerns that required its classification.... [¶] The declassification reflects the Executive Branch's continuing commitment to making information about the government's intelligence activities publicly available where appropriate and is consistent with ensuring the protection of the national security of the United States.

Executive Order 13526 section 3.1(d) permits an agency of the executive branch to declassify previously classified information.

On April 1, 2014, Twitter submitted to the government a draft transparency report containing information and discussion about the aggregate numbers of NSLs and FISA orders it received in the second half of 2013. Twitter requested "a determination as to exactly which, if any, parts of its Transparency Report are classified or, in the [government's] view, may not lawfully be published online." (Complaint, Exh. 3.) Five months later, on September 9, 2014, the Government, in a letter from James A. Baker, General Counsel of the Federal Bureau of Investigation, notified Twitter that "information contained in the report is classified and cannot be publicly released" because it does not comply with the government's approved framework for reporting data about FISA orders and NSLs. (Complaint, Exh. 5.) The Government's September 9, 2014 response did not identify what specific language in the draft transparency report could or could not be disclosed. (Id. )2

B. Procedural History of this Case

Twitter filed its Complaint herein on October 7, 2014. On January 9, 2015, defendants moved to dismiss portions of the complaint filed October 7, 2014, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for prudential reasons. After full briefing and extensions of time by the parties, the Court heard oral argument on...

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