Tech and media firms join Twitter in key test of FBI gag orders

A bitter fight between the Justice Department and Silicon Valley is expanding as a diverse group of companies have lined up behind Twitter in a case that will help determine the limits of free speech in the age of Edward Snowden.

On Tuesday, groups ranging from BuzzFeed to Wikipedia to the Guardian filed friend-of-the-court briefs (see below) to support a challenge by Twitter to Patriot Act gag orders. Two other large companies, which are only allowed to refer to themselves as “Corporations 1 & 2,” also filed briefs.

The case, which began when Twitter sued the Justice Department in October, turns on how companies may use so-called “transparency reports” to tell users about government requests for their data.

Twitter claims it has a right under the First Amendment to say specifically how often it receives National Security Letters, while the government counters that companies can only do so in broad strokes lest they jeopardize national security.

In recent years, the FBI has made extensive use of National Security Letters to obtain information about subscribers, while also attaching gag orders to the letters that forbid companies from revealing they have even received a letter in the first place. The Justice Department has issued hundreds or thousands of such letters to companies like Google, Facebook and AT&T.

In its lawsuit, Twitter claims it is an illegal prior restraint of free speech for the government to bar companies from even disclosing that they have received a letter. A group of media companies has now voiced support for that argument:

“Twitter’s proposed transparency report is no less entitled to free speech protections than ‘literature’ or ‘movies,'” said the brief filed on behalf of BuzzFeed, NPR, the Washington Post, PEN America, the Guardian and First Look Media.

The brief reflects the media’s newfound legal interest into what has largely been a tech industry fight, but also shows how digital media companies like BuzzFeed are finally taking up the legal fight for free speech, a burden that has long been borne almost entirely by old-line newspaper companies.

“Corporations 1 & 2”

Meanwhile, a separate filing shows that a phone and internet company are also weighing in on the Twitter case, but in the guise of “Corporations 1 & 2.” The companies (which are likely Verizon and Google or Yahoo) are using the pseudonyms at the direction of a judge, and are muzzled in part because they are already before an appeals court in another national security case over the right to disclose government demands.

The right of internet companies to discuss security letters has become more pressing since 2013 , when leaked documents from Edward Snowden revealed massive surveillance operations by the U.S. government. Those operations rely on obtaining information from tech and phone companies, and have been facilitated by the legal process governing Patriot Act letters, as well as a related process for NSA demands.

In response, companies like Twitter have come to claim that free speech and the public interest give them the freedom to disclose how many NSA and FBI letters they receive in the first place. The companies stress they are not arguing for the right to disclose the contents of the letters, since doing so could jeopardize ongoing investigations, but only the existence of the letters.

The docket also shows that a group of other entities  — the Wikimedia Foundation, CloudFlare, Sonic, Wickr, Credo Mobile and Automattic (publisher of WordPress.com) — filed a brief in support of Twitter.

Here’s a copy of the media companies’ filing with some of the key parts underlined. Note that a key part of the argument turns on whether the federal judge has authority to hear the case in the first place (as the companies argue) or if the case belongs instead in a controversial secret court (as the Justice Department claims).

Media Amicus in Twitter Case

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This article was updated at 12:35pm ET to note that Automatic is the publisher of WordPress.com; an earlier version said “WordPress” (which refers to the software used by the company, WordPress.com). This article was also updated at 1:40pm on Thursday to clarify that it was the Wikimedia Foundation (not Wikipedia) that was on the amicus brief.

Why I’m interested in First Look’s new social-journalism project

As I reported earlier today, First Look Media editor Andy Carvin — formerly of National Public Radio — has just launched a new project called Reportedly, which will see a staff of half a dozen reporters focus on using social platforms like Twitter, Facebook and Reddit for journalistic purposes. There are a number of things that interest me about this idea, not the least of which is the fact that Carvin says he prefers to think of the Reportedly team as being “anchor/producers” for the communities on those social platforms, rather than traditional reporters.

Whatever you think of the term “anchor/producers” — or the term “news DJ,” which is the one that Carvin (who is a friend) often used to describe what he did on Twitter during the Arab Spring uprisings in Egypt — I like the fact that this First Look Media team are trying to think about their jobs in a different way, because that means they have a chance of shaking off some of the preconceived notions about what journalists should and shouldn’t do in such situations.

As Carvin mentioned in his interview with me, too many media outlets approach platforms like Twitter and Facebook and Reddit either as sources to be plundered — meaning they take content from those platforms and repurpose it on their own platform or website, in many cases without attribution — or simply as distribution outlets: places where you post your links and then hope that enough people share them that they “go viral.”

Not just for clickbait

Reportedly explicitly doesn’t want to take that approach to these online communities. Instead, Carvin says, it wants to treat those platforms as destinations in their own right — and their users not just as passive sources of content or viral link-clickers, but potential partners in committing acts of real-time journalism. As his introductory message puts it:

“We don’t try to send people away from their favorite online communities just to rack up pageviews. We want to tell stories from around the world, serving these online communities as our primary platforms for reporting?—?not secondary to some website or app. Forget native advertising?—?we want to produce native journalism for social media communities, in conjunction with members of those communities.”

This is a dramatically different approach than many reporters take to such platforms, particularly Reddit, which is often seen as a backwater filled with mouth-breathing reprobates. But as groups like the Syrian Civil War sub-Reddit have shown, the platform can serve a real purpose when it comes to real-time reporting. And this isn’t reporting that is designed to live somewhere else — it is created and consumed on Reddit.

Crowdsourcing

BuzzFeed is doing something roughly equivalent with a project it is calling BuzzFeed Distributed, which has a team of writers and editors creating content of various kinds that is designed to live within the various social platforms, whether it’s Twitter and Facebook or Snapchat and Instagram. They aren’t designed to push users to the BuzzFeed site, but to raise awareness of the BuzzFeed brand and meet potential future readers on their home turf, in a sense (and likely also to show potential advertisers that it understands such communities and how they function).

News as a process

The other main thing that interests me about Carvin’s project is that it is explicitly taking a “news as a process” approach to real-time journalism — in other words, it sees truth in the journalistic sense as something that evolves over time, with multiple inputs from multiple different sources, some professional and some not, and fact-checking that is done in real time and in full public view. To quote from Reportedly’s statement of core values:

“There will be many occasions where we will share information that hasn’t been confirmed yet. We do so in the spirit of providing context to our newsgathering process, as well as inviting the public to help us confirm or debunk aspects of a particular news story. We will always be clear about what has not been confirmed. What we discuss on social media shouldn’t be seen as the conclusions of our reporting; instead, it’s the opening gambit of a public conversation that we hope will help us sort fact from fiction.”

This is the same process that Carvin used when he was reporting during the Arab Spring, using his Twitter followers as a kind of crowdsourced newsroom (as he described it to me in a previous interview). There were plenty of media types who criticized this approach, arguing that journalists shouldn’t make statements if they can’t prove they are true, but I think there is a clear social value in having that process occur in public — not the least of which is the old open-source software adage that “more eyes mean fewer bugs.”

If there’s one overwhelming aspect of Reportedly’s approach, it’s this collaborative element: the idea that Twitter users or Reddit posters aren’t just passive consumers of content, but have the potential to become active, engaged contributors to the practice of journalism, broadly defined. It’s an ambitious effort and it isn’t guaranteed to succeed, but I think it’s a worthwhile gamble, and I’m glad First Look is doing it. Other outlets should pay attention — and they should read Reportedly’s statement of core values too.

Andy Carvin launches social-media reporting team for First Look

Former NPR staffer and Twitter-based journalist Andy Carvin is launching a team of half a dozen social-media “anchor/producers” who will be embedded in various social platforms like Twitter, Facebook and Reddit and use them as sources of journalism