WASHINGTON, D.C.—The Electronic Frontier Foundation (EFF) urged the Supreme Court today to review and reverse a dangerous ruling allowing the Justice Department to censor X’s ability to publish information about government requests for the platform’s private user data, a decision that undermines at least a hundred years of First Amendment case law on when the government can bar private speech before it is published.
The government has been fighting X, formerly known as Twitter, for nearly a decade to stop it from publishing a 2013 transparency report that would give its users a more complete picture of how many times the government—armed with orders from a secret court and the FBI—demanded customer information for national security surveillance.
Transparency reports have been a bedrock for shining a light on the secretive world of FBI national security letters and Foreign Intelligence Surveillance Act (FISA) orders compelling platforms to turn over their users’ private information. The reports disclose aggregate numbers of data requests—not the underlying targets of government requests or other such details—often by country and type of request, allowing users and researchers to see trends in surveillance activity.
Blocking such data prior to publication—a "prior restraint” in legal terms—has long been subject to the most demanding First Amendment protections to ensure that the government is not allowed to be an unreviewable censor stifling individuals’ right to free speech.
But the U.S. Court of Appeals for the Ninth Circuit, in upholding dismissal of X’s lawsuit challenging DOJ’s decision to block the 2013 transparency report, found that a large body of prior restraint law didn’t apply. The court said that gagging companies from publishing numerical data provided “confidentially” as part of a “legitimate government process” doesn’t “present the grave dangers of a censorship system.”
While the case X v. Garland involves a 2013 report, its potential consequences are immediate and far-reaching. Applying the Ninth Circuit standards, virtually anyone who interacts with a government agency could be gagged from speaking publicly about it.
Individuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press. This is wrong, and EFF is urging the Supreme Court to set things right.
“The Ninth Circuit decision marked a new low in judicial deference to government demands for secrecy because of national security,” said EFF Surveillance Litigation Director Andrew Crocker. “The undisputed understanding of prior restraint in First Amendment law is that it’s the least tolerable infringement of free speech rights.”
“If allowed to stand, the appeals court ruling opens the door to government unilaterally blocking speech about matters of public interest, while restricting speakers like X to test such gag orders in court,” said EFF Civil Liberties Director David Greene. “The Supreme Court should step in to salvage the prior restraint doctrine and prevent an unacceptable expansion of the government’s power to censor speech.”
For EFF's brief: