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.

Report: US to grant foreigners limited NSA data deletion rights

The U.S. administration is set to make a few changes to the country’s mass surveillance practises, according to a New York Times report late Monday.

The piece, which appears to be based on official leaks ahead of a Tuesday announcement, suggested foreigners will get for the first time get limited rights regarding how their personal data is treated after it’s been scooped up by agencies such as the NSA. Whereas the data of Americans would be deleted after incidental collection, foreigners’ data would be deleted after five years.

This is a small step – it’s arguably better than nothing, and most countries’ surveillance operations don’t grant privacy rights to foreigners. However, that doesn’t make the NSA’s practices OK, particularly as they and their “Five Eyes” partners have unrivalled access to foreigners’ data.

Data collection still violates the right to privacy, and the discrimination between Americans and non-Americans still falls foul of the basic human rights tenet that maintains all people should enjoy equal protection under the law, as stated in Article 26 of the International Convention on Civil and Political Rights (ICCPR). As it happens, the U.S. ratified the ICCPR with one “reservation” being that discrimination is allowed when it is “rationally related to a legitimate governmental objective.” The U.S. Constitution also grants equality under the law, but its application to foreigners outside U.S. borders is a complex matter.

Then again, human rights are inalienable and countries don’t grant them – they recognize them, or not. Even if the U.S. is about to grant foreigners some legal rights regarding the deletion of their recorded/stolen personal data, the 95 percent of the world’s population living outside those borders still has good reason to complain about their treatment by the NSA.

The White House’s changes would also formalize a process about the monitoring of international leaders, that was drawn up after the embarrassing revelation — from the Snowden documents – that the NSA was spying on German Chancellor Angela Merkel. The NYT piece was fuzzy on this: It seems some leaders are off the spy list and some aren’t.

The gag orders associated with national security letters – the orders that force communications providers to hand over customer data – will also “presumptively” end after three years, the article stated, although “mid-level” intelligence agents will be able to plead for continued secrecy.

This article was updated at 4am PT to note that most countries’ surveillance operations don’t grant privacy rights to foreigners.