Judge may shut down Twitter fight against surveillance secrecy
Twitter’s legal campaign to disclose more information about surveillance requests it receives from the federal government appears to be running aground after a federal judge signaled that she is prepared to dismiss the nearly five-year-old lawsuit.
In 2017, U.S. District Court Judge Yvonne Rogers turned down the Justice Department’s bid to defeat the suit, but she said in an order Friday that new, secret information she received recently from the FBI has left her inclined to hand the government the victory it sought.
The judge’s change of heart follows Attorney General Bill Barr’s decision in March to assert the state secrets privilege in the case to block Twitter lawyers from receiving access to an earlier classified filing in the suit.
Barr’s move, first reported by POLITICO, was his first invocation of the privilege since returning to the attorney general’s post earlier this year.
Twitter’s 2014 lawsuit accused the government of violating the firm’s free speech rights by restricting its ability to publish a transparency report providing greater detail about the surveillance-related court orders and administrative subpoenas it receives from the FBI, formally known as national security letters.
Rogers’ two-page order says a new FBI declaration accompanying Barr’s March privilege assertion gave her a better understanding of the harms that could result from letting Twitter be more open about the data demands it gets from federal officials. The new statement came from Michael McGarrity, the FBI’s acting executive assistant director for national security.
“In light of its review of the classified McGarrity Declaration, the Court is inclined to reconsider its prior order denying summary judgment,” Rogers wrote. “The Court is inclined to find that classified McGarrity Declaration meets the Government’s burden under strict scrutiny to justify classification and restrict disclosure of information in the Draft Transparency Report, based upon a reasonable expectation that its disclosure would pose grave or imminent harm to national security, and that no more narrow tailoring of the restrictions can be made.”
Rogers also indicated she was inclined to deny a request by Twitter’s lawyers for access to McGarrity’s sealed, classified filing. (A unclassified version of his submission was made public in March.)
The judge, an Obama appointee, didn’t immediately end the suit with her order Friday. Instead, she said she’d receive another round of filings from the social media company and the government before making a final ruling.
Twitter didn’t immediately respond to a request for comment, but addressed earlier developments on its website. “Twitter strongly disagrees with the government's position and intends to vigorously defend against this motion and the assertion of the state secrets privilege. We will continue to fight for meaningful transparency through this and other efforts,” the firm said.
By JOSH GERSTEIN
Photo: Twitter’s 2014 lawsuit accused the government of violating the company’s free speech rights by restricting its ability to publish a transparency report. | Jeff Chiu/AP Photo