Twitter, Inc. v. Lynch
Citation | 139 F.Supp.3d 1075 |
Decision Date | 14 October 2015 |
Docket Number | Case No. 14-cv-04480-YGR |
Parties | Twitter, Inc., Plaintiff, v. Loretta E. Lynch, et al., Defendants. |
Court | U.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").
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:
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
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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