A federal judge dismissed Twitter’s long-pending lawsuit last week over its right to share information about secret government surveillance orders for its users’ information. We hope that Twitter will continue its fight for transparency by appealing this decision.

Background: The Government’s Limits on National Security Transparency

Using surveillance authorities such as national security letters (NSLs) and FISA court orders, the government can not only demand that companies turn over information about their customers’ accounts, but can also gag the company from disclosing any information about the demand—even the fact that the company received it. Thanks to public pressure in the wake of the 2013 Snowden revelations, companies began to seek more freedom to discuss these national security orders and to publish regular transparency reports.

In January 2014, the government came to an agreement with certain companies allowing them to disclose some aggregated information about the number of secret national security demands that the companies received. But the companies could only share that information in the broadest strokes; they could not report separate numbers for demands made under separate surveillance authorities, and they could report aggregated numbers only in wide bands. And the company could only share those aggregated numbers once every six months, at minimum, with a six-month delay in reporting. Later, as part of the 2015 USA Freedom Act, Congress legislated a similar reporting scheme that permitted recipients of national security requests slightly more freedom to publish transparency reports, but codified the aggregated bands and time delays from the government’s earlier settlement.

Twitter Sues for More Transparency

In mid-2014, Twitter submitted a draft transparency report to the FBI to review pursuant to the government’s settlement with other tech companies. Though Twitter was not a party to the January 2014 agreement, the FBI nonetheless censored information in Twitter’s report that contained total numbers of secret surveillance orders Twitter had received. Twitter filed suit, asserting that it has a First Amendment right to share the total number of secret surveillance orders it received in a six-month period, and to share with its users whether it received zero of a particular kind of national security demand.

In 2015, EFF filed a friend-of-the-court brief on behalf of an anonymous telecom and an anonymous Internet company that had both received NSLs and accompanying gag orders. Like Twitter, EFF’s anonymous clients wanted to be able to be transparent with their customers about government demands for their data.

In 2017, the judge denied the government’s motion for summary judgment in its favor. In denying the government’s motion, the judge ruled that the government’s censorship of Twitter’s transparency report was a prior restraint, the most serious type of speech restriction, and that the government had failed to present evidence showing that the report would seriously damage national security. The judge also concluded that the government failed to establish the proper procedural safeguards that the Constitution requires in order to impose a prior restraint on speech.

By denying the government’s motion, the judge cleared the path for the case to continue, allowing the parties to present further evidence. And, because the government wanted to introduce classified evidence, the judge also ordered the government to expedite national security clearances for Twitter’s lead counsel.

The government subsequently submitted several classified declarations into evidence. But it claimed that the declarations contained state secrets so sensitive that even Twitter’s clearance-holding attorneys could not see them.

The state secrets doctrine allows the government, in exceptional circumstances, to withhold evidence from an opposing party when the disclosure of that information would jeopardize national security. This doctrine offers the government a powerful tool to hide the truth, and the government has abused that power in the past to achieve its own ends in court. As a result, judges typically review government claims that evidence contains state secrets with searching scrutiny and a healthy dose of skepticism.

On Friday, however, the judge in this case ruled that it would allow the government’s state-secrets claim and would not require the government to turn over the classified declarations to Twitter’s counsel. And, based on that secret evidence that Twitter’s attorneys were never allowed to access, the judge held that the government’s purported national security concerns were sufficient to justify its censorship of Twitters draft transparency report.

Disturbingly, the judge provided next-to-no justification for either of these decisions. In a footnote, the judge held that the government’s classified evidence could remain a secret even from Twitter’s attorneys who already had security clearances. And the judge dedicated only a single paragraph to explaining why the government’s censorship of Twitter’s transparency report does not violate the First Amendment.

The brevity of the opinion is particularly extraordinary given that the parties have been litigating the case for almost six years. And it stands in sharp contrast with the same judge’s 2017 ruling, which offered a lengthy and in-depth analysis of the First Amendment issues—and came to the opposite conclusion.

We hope that Twitter will appeal this decision and that the Ninth Circuit will make clear that companies have a right to speak out about government surveillance.