Twitter’s attorneys said in court papers filed Tuesday that it believes the Justice Department would bring espionage charges against the social media service if it publicly reveals how many of its users have been subject to government surveillance.
By evoking the Foreign Intelligence Surveillance Act (FISA), the U.S. government is able to compel internet companies like Twitter for the records of account holders under the guise of national security. Through guidelines established in 2014, however, companies are prohibited from saying exactly how many of those requests they receive, and instead are only permitted to report the number of orders in ranges of 1,000.
Twitter sued the Dept. of Justice in 2014 in hopes of being awarded the right to announce the exact number of FISA court orders received annually, and has publicly accused the government of violating its freedom of speech by limiting the information it can give to customers. Nearly two years into its case, Twitter’s attorneys said in their latest filing that the company may risk being charged under the Espionage Act of 1917 if it goes as far as to provide an actual integer with regards to how many requests it’s received, opening the company up to penalties intended to punish spies, not social media services.
In a complaint for declaratory judgement filed Tuesday, Twitter attorney Andrew John Pincus wrote that previous statements made by the DOJ “have given rise to a reasonable concern that Twitter would face prosecution under the Espionage Act … if it were to disclose the aggregate number of FISA orders it has received.”
“Twitter is informed and believes and is concerned that if it were to publicly disclose the actual aggregate number of FISA orders or directives it may have received … [then] Defendant DOJ may seek to prosecute Twitter and impose the applicable penalties under the Espionage Act,” he wrote.
As acknowledged in the filing, the Espionage Act criminalizes a number of actions involving the disclosure or improper handling of information “relating to the national defense,” including the willful communication or delivery of any information relating to the national defense that “could be used to the injury of the United States or to the advantage of any foreign nation.” Americans previously convicted of the World War One anti-spy legislation include 20th century anarchist Emma Goldman, WikiLeaks source Chelsea Manning and CIA leaker Jeffrey Sterling, most recently. Individuals who are found guilty of violating the Espionage Act may be subject to the death penalty.
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According to Twitter, it could face a similar fate given remarks made in 2014 when the Justice Department said providing finite statistics regarding the number of FISA requests, as proposed by Twitter, “would reveal classified details about [government] surveillance that go beyond what the government has permitted other companies to report.”
“Defendants’ response means that Twitter cannot speak about the volume of national security legal process it has received except in ways that have been pre-approved by government officials,” the filing alleges.
Twitter said more than 300 million users including world leaders and journalists use its platform “to disseminate information and ideas, engage in public debate about matters of national and global concern, seek justice and reveal government corruption and other wrongdoing.”
“To the extent that FISA’s secrecy provisions are construed to categorically prohibit Twitter from publishing the quantitative information it seeks to publish, the FISA secrecy provisions are unconstitutional, including because they constitute a prior restraint and content-based restriction on speech in violation of Twitter’s First Amendment right to speak about truthful matters of public concern,” the company said in the complaint.
“Twitter users are permitted to post under their real names or pseudonymously, and the ability of Twitter users to share information depends, in part, on their ability to do so without undue fear of government surveillance. Therefore, the ability to engage in speech concerning the nature and extent of government surveillance of Twitter users’ activities is critical to Twitter.”
The Justice Department declined to comment on Twitter’s complaint.
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• Andrew Blake can be reached at ablake@washingtontimes.com.
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