Are government gag-orders on data disclosure constitutional?
The Patriot Act expanded the government’s ability to keep an eye on American citizens—and their data. Through special permissions granted by the FBI through “national security letters,” U.S. spy agencies are able to access user data owned by tech companies, while at the same time barring those companies from disclosing to users and shareholders what data has been requested.
Fortunately, appeals judges across the country are siding with tech companies against the FBI in a series of lawsuits challenging the gag orders. Via Bloomberg Law:
“More and more service providers are issuing transparency reports,” said Kurt Opsahl, an attorney with Electronic Frontier Foundation, whose clients are seeking an end to the letters. “Many would like to say what national security” demands they’re getting.
The gag provision violates free-speech rights, U.S. District Judge Susan Illston in San Francisco ruled in March 2013 in a lawsuit brought by a phone-service provider that received such a letter. She put her ruling on hold while the government appeals it. Because recipients of the letters are forbidden from discussing them openly, the identity of the phone company isn’t public.
The Justice Department’s argument centers on the idea that national security concerns trump the general First Amendment rights of tech companies; they say that if companies are allowed to disclose which agency is looking at what data, terrorists will be able to gain inside information into national security investigations, and thus, that the government has a compelling interest in keeping this information classified.
Tech companies’ main concerns center on the indefinite nature of the gag order, which is also leaving judges questioning the heart of the Justice Department’s argument:
U.S. Circuit Judge Randy Smith, who was appointed by President George W. Bush, expressed concern over the lack of an expiration date.
“Why isn’t that something I ought to be worried about?” he asked. “Seems like the government ought to have some obligation.”
Twitter’s lawsuit, filed yesterday in a federal court in California, seeks to overturn the prohibition on including in their transparency report government demands for user data:
The San Francisco-based social media company says it believes that it’s entitled under the First Amendment to “respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance.”
Twitter said in a blog post that it has “tried to achieve the level of transparency our users deserve without litigation, but to no avail.”
“This is an important issue for anyone who believes in a strong First Amendment, and we hope to be able to share our complete Transparency Report,” the company said.
Twitter’s legal fight comes in the wake of a recent settlement between tech giants Google, Microsoft, Yahoo, Facebook, and LinkedIn and the federal government, in which the DoJ allowed those companies to release more information about government requests in their transparency reports.DONATE
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