1 Eric D. Miller, Bar No. 218416

EMiller@perkinscoie.com 2 Michael A. Sussmann, D.C. Bar No. 433100

3 (pro hac vice to follow) MSussmann@perkinscoie.com

4 James G. Snell, Bar No. 173070

JSnell@perkinscoie.com

5 Hayley L. Berlin, D.C. Bar No. 1011549

6

(pro hac vice to follow) HBerlin@perkinscoie.com

7 PERKINS COIE LLP 3150 Porter Drive

8 Palo Alto, CA 94304-1212

Tel: 650-838-4300 9 Fax: 650-838-4350

10 Attorneys for Plaintiff 11 Twitter, Inc.

12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

16 TWITTER, INC.,
17 Plaintiff,
18 v.
19 ERIC HOLDER, Attorney General of the
20 United States,
21 THE UNITED STATES DEPARTMENT OF JUSTICE,
22 JAMES COMEY, Director of the Federal
23 Bureau of Investigation, and
24 THE FEDERAL BUREAU OF INVESTIGATION,
25 Defendants.
26

Case No. 14-cv-4480
COMPLAINT FOR DECLARATORY JUDGMENT, 28 U.S.C. §§ 2201 and 2202

27

28

COMPLAINT FOR DECLARATORY JUDGMENT

1

I. NATURE OF THE ACTION

2

1. Twitter brings this action for declaratory judgment pursuant to 28 U.S.C. §§ 2201

3 and 2202, requesting relief from prohibitions on its speech in violation of the First Amendment.

4

2. The U.S. government engages in extensive but incomplete speech about the scope

5 of its national security surveillance activities as they pertain to U.S. communications providers,

6 while at the same time prohibiting service providers such as Twitter from providing their own

7 informed perspective as potential recipients of various national security-related requests.

8

3. Twitter seeks to lawfully publish information contained in a draft Transparency

9 Report submitted to the Defendants on or about April 1, 2014. After five months, Defendants

10 informed Twitter on September 9, 2014 that “information contained in the [transparency] report is

11 classified and cannot be publicly released” because it does not comply with their framework for

12 reporting data about government requests under the Foreign Intelligence Surveillance Act

13 (“FISA”) and the National Security Letter statutes. This framework was set forth in a January 27,

14 2014 letter from Deputy Attorney General James M. Cole to five Internet companies (not

15 including Twitter) in settlement of prior claims brought by those companies (also not including

16 Twitter) (the “DAG Letter”).

17

4. The Defendants’ position forces Twitter either to engage in speech that has been

18 preapproved by government officials or else to refrain from speaking altogether. Defendants

19 provided no authority for their ability to establish the preapproved disclosure formats or to

20 impose those speech restrictions on other service providers that were not party to the lawsuit or

21 settlement.

22

5. Twitter’s ability to respond to government statements about national security

23 surveillance activities and to discuss the actual surveillance of Twitter users is being

24 unconstitutionally restricted by statutes that prohibit and even criminalize a service provider’s

25 disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to

26 FISA that it has received, if any. In fact, the U.S. government has taken the position that service

27

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COMPLAINT FOR DECLARATORY JUDGMENT

1 providers like Twitter are even prohibited from saying that they have received zero national

2 security requests, or zero of a particular type of national security request.

3

6. These restrictions constitute an unconstitutional prior restraint and content-based

4 restriction on, and government viewpoint discrimination against, Twitter’s right to speak about

5 information of national and global public concern. Twitter is entitled under the First Amendment

6 to respond to its users’ concerns and to the statements of U.S. government officials by providing

7 more complete information about the limited scope of U.S. government surveillance of Twitter

8 user accounts—including what types of legal process have not been received by Twitter—and the

9 DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional

10 speech restrictions.

11

II. PARTIES

12

7. Plaintiff Twitter, Inc. (“Twitter”) is a corporation with its principal place of

13 business located at 1355 Market Street, Suite 900, San Francisco, California. Twitter is a global

14 information sharing and distribution network serving over 271 million monthly active users

15 around the world. People using Twitter write short messages, called “Tweets,” of 140 characters

16 or less, which are public by default and may be viewed all around the world instantly. As such,

17 Twitter gives a public voice to anyone in the world—people who inform and educate others, who

18 express their individuality, who engage in all manner of political speech, and who seek positive

19 change.

20

8. Defendant Eric Holder is the Attorney General of the United States and heads the

21 United States Department of Justice (“DOJ”). He is sued in his official capacity only.

22

9. Defendant DOJ is an agency of the United States. Its headquarters are located at

23 950 Pennsylvania Avenue, NW, Washington, D.C.

24

10. Defendant James Comey is the Director of the Federal Bureau of Investigation

25 (“FBI”). He is sued in his official capacity only.

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1

11. Defendant FBI is an agency of the United States. Its headquarters are located at

2 935 Pennsylvania Avenue, NW, Washington, D.C.

3

III. JURISDICTION

4

12. This Court has original subject matter jurisdiction under 28 U.S.C. § 1331, as this

5 matter arises under the Constitution, laws, or treaties of the United States. More specifically, this

6 Court is authorized to provide declaratory relief under the Declaratory Judgment Act, 28 U.S.C.

7 §§ 2201–2202, relating to, among other things, Twitter’s contention that certain nondisclosure

8 requirements and related penalties concerning the receipt of NSLs and court orders issued under

9 FISA, as described below, are unconstitutionally restrictive of Twitter’s First Amendment rights,

10 either on their face or as applied to Twitter, and Twitter’s contention that Defendants’ conduct

11 violates the Administrative Procedure Act, 5 U.S.C. § 551, et seq.

12

IV. VENUE

13

13. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

14 of the events giving rise to the action occurred in this judicial district, Twitter resides in this

15 district, Twitter’s speech is being unconstitutionally restricted in this district, and the Defendants

16 are officers and employees of the United States or its agencies operating under the color of law.

17

V. FACT UAL BACKGROUND

18 A. NSL and FISA Provisions Include Nondisclosure Obligations

19

i. The NSL Statute

20

14. Section 2709 of the federal Stored Communications Act authorizes the FBI to

21 issue NSLs to electronic communication service (“ECS”) providers, such as Twitter, compelling

22 them to disclose “subscriber information and toll billing records information” upon a certification

23 by the FBI that the information sought is “relevant to an authorized investigation to protect

24 against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(a), (b).

25

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1

15. Section 2709(c)(1) provides that, following certification by the FBI, the recipient

2 of the NSL shall not disclose “to any person (other than those to whom such disclosure is

3 necessary to comply with the request or an attorney to obtain legal advice or legal assistance with

4 respect to the request) that the Federal Bureau of Investigation has sought or obtained access to

5 information or records.” 18 U.S.C. § 2709(c)(1). This nondisclosure obligation is imposed upon

6 an ECS by the FBI unilaterally, without prior judicial review. At least two United States district

7 courts have found the nondisclosure provision of § 2709 unconstitutional under the First

8 Amendment. In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013); Doe v. Gonzales,

9 500 F. Supp. 2d 379 (S.D.N.Y. 2007), affirmed in part, reversed in part, and remanded by Doe,

10 Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).

11

16. Any person or entity that violates a NSL nondisclosure order may be subject to

12 criminal penalties. 18 U.S.C. §§ 793, 1510(e).

13

ii. The Foreign Intelligence Surveillance Act

14

17. Five subsections (“Titles”) of FISA permit the government to seek court-ordered

15 real-time surveillance or disclosure of stored records from an ECS: Title I (electronic surveillance

16 of the content of communications and all communications metadata); Title III (disclosure of

17 stored content and noncontent records); Title IV (provisioning of pen register and trap and trace

18 devices to obtain dialing, routing, addressing and signaling information); Title V (disclosure of

19 “business records”) (also referred to as “Section 215 of the USA Patriot Act”); and Title VII

20 (surveillance of non-U.S. persons located beyond U.S. borders).

21

18. A number of authorities restrict the recipient of a FISA order from disclosing

22 information about that order. These include requirements in FISA that recipients of court orders

23 provide the government with “all information, facilities, or technical assistance necessary to

24 accomplish the electronic surveillance in such a manner as will protect its secrecy,” 50 U.S.C. §

25 1805(c)(2)(B); the Espionage Act, 18 U.S.C. § 793 (criminalizing unauthorized disclosures of

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1 national defense information under certain circumstances); nondisclosure agreements signed by

2 representatives of communications providers who receive FISA orders; and court-imposed

3 nondisclosure obligations in FISA court orders themselves.

4 B. 5

The Government’s Restrictions on Other Communication Providers’ Ability to Discuss Their Receipt of National Security Legal Process

6

19. On June 5, 2013, the British newspaper The Guardian reported the first of several

7 “leaks” of classified material from Edward Snowden, a former government contractor, which

8 have revealed—and continue to reveal—multiple U.S. government intelligence collection and

9 surveillance programs.

10

20. The Snowden disclosures have deepened public concern regarding the scope of

11 governmental national security surveillance. This concern is shared by members of Congress,

12 industry leaders, world leaders, and the media. In response to this concern, a number of executive

13 branch officials have made public statements about the Snowden disclosures and revealed select

14 details regarding specific U.S. surveillance programs. For example, the Director of National

15 Intelligence has selectively declassified and publicly released information about U.S. government

16 surveillance programs.

17

21. While engaging in their own carefully crafted speech on the issue of U.S.

18 government surveillance, U.S. government officials have relied on statutory and other authorities

19 to preclude communication providers from responding to leaks, inaccurate information reported

20 in the media, statements of public officials, and related public concerns regarding the providers’

21 involvement with and exposure to U.S. surveillance efforts. These authorities—and the

22 government’s interpretation of and reliance on them—constitute facial and as-applied violations

23 of the First Amendment right to engage in speech regarding a matter of extensively debated and

24 significant public concern.

25

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1

22. In response to these restrictions on speech, on June 18, 2013, Google filed in the

2 Foreign Intelligence Surveillance Court (“FISC”) a Motion for Declaratory Judgment of Google’s

3 First Amendment Right to Publish Aggregate Data About FISA Orders. Google then filed an

4 Amended Motion on September 9, 2013. Google’s Amended Motion sought a declaratory

5 judgment that it had a right under the First Amendment to publish, and that no applicable law or

6 regulation prohibited it from publishing, two aggregate unclassified numbers: (1) the total number

7 of requests it receives under various national security authorities, if any, and (2) the total number

8 of users or accounts encompassed within such requests. Similar motions were subsequently filed

9 by four other U.S. communications providers: Microsoft (June 19, 2013), Facebook (September

10 9, 2013), Yahoo! (September 9, 2013), and LinkedIn (September 17, 2013). Apple also

11 submitted an amicus brief in support of the motions (November 5, 2013).

12

23. In January 2014, the DOJ and the five petitioner companies reached an agreement

13 that the companies would dismiss the FISC actions without prejudice in return for the DOJ’s

14 agreement that the companies could publish information about U.S. government surveillance of

15 their networks in one of two preapproved disclosure formats. President Obama previewed this

16 agreement in a public speech that he delivered at the DOJ on January 17, 2014, saying, “We will

17 also enable communications providers to make public more information than ever before about

18 the orders that they have received to provide data to the government.” President Barack Obama,

19 Remarks by the President on Review of Signals Intelligence, The White House Blog (Jan. 17,

20 2014, 11:15 AM), available at http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-

21 president-review-signals-intelligence.

22

24. The two preapproved disclosure formats were set forth in a letter dated January 27,

23 2014, from Deputy Attorney General James M. Cole to the General Counsels for Facebook,

24 Google, LinkedIn, Microsoft and Yahoo!. A copy of the DAG Letter is attached hereto as Exhibit

25 1. Under Option One in the DAG Letter,

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1

A provider may report aggregate data in the following separate categories:

2

1. Criminal process, subject to no restrictions.

3

2.

4 3.
5

6

4.

7

5.

8 6.
9

10

7.

11 Exhibit 1 at 2.
12

The number of NSLs received, reported in bands of 1000 starting with 0-999.
The number of customer accounts affected by NSLs, reported in bands of 1000 starting with 0-999.
The number of FISA orders for content, reported in bands of 1000 starting with 0-999.
The number of customer selectors targeted under FISA content orders, in bands of 1000 starting with 0-999.
The number of FISA orders for non-content, reported in bands of 1000 starting with 0-999.
The number of customer selectors targeted under FISA noncontent orders, in bands of 1000 starting with 0-999.

13

25. For FISA-related information, the DOJ imposed a six-month delay between the

14 publication date and the period covered by the report. In addition, it imposed

15

a delay of two years for data relating to the first order that is served on a company

16

for a platform, product, or service (whether developed or acquired) for which the

company has not previously received such an order, and that is designated by the

17

government as a “New Capability Order” because disclosing it would reveal that

the platform, product, or service is subject to previously undisclosed collection

18

through FISA orders.

19 Id. at 3.

20

26. Under Option Two,

21

[A] provider may report aggregate data in the following separate categories:

22

1. Criminal process, subject to no restrictions.

23

2. The total number of all national security process received,

24

including all NSLs and FISA orders, reported as a single number in the following bands: 0-249 and thereafter in bands of 250.

25

3. The total number of customer selectors targeted under all national

26

security process, including all NSLs and FISA orders, reported as a

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1
2 3 Id.

single number in the following bands, 0-249, and thereafter in bands of 250.”

4

27. Under either option, since the permitted ranges begin with zero, service providers

5 who have never received an NSL or FISA order apparently are prohibited from reporting that

6 fact. Likewise, a communications provider that, for example, has received FISA orders under

7 Titles I, III, V and VII of FISA, but not under Title IV, may not reveal that it has never received a

8 Title IV FISC order.

9

28. The DAG Letter cites to no authority for these restrictions on service providers’

10 speech.

11

29. In a Notice filed with the FISC simultaneously with transmission of the DAG

12 Letter, the DOJ informed the court of the agreement, the new disclosure options detailed in the

13 DAG Letter, and the stipulated dismissal of the FISC action by all parties. A copy of the Notice

14 is attached hereto as Exhibit 2. The Notice concluded by stating: “It is the Government’s position

15 that the terms outlined in the Deputy Attorney General’s letter define the limits of permissible

16 reporting for the parties and other similarly situated companies.” Exhibit 2 at 2 (emphasis

17 added). In other words, according to the DOJ, the negotiated agreement reached to end litigation

18 by five petitioner companies is not limited to the five petitioner companies as a settlement of

19 private litigation, but instead serves as a disclosure format imposed on a much broader—yet

20 undefined—group of companies. No further guidance has been offered by the DOJ regarding

21 what it considers to be a “similarly situated” company. Further, the Notice cites no authority for

22 extending these restrictions on speech to companies that were not party to the negotiated

23 agreement.

24

30. Notwithstanding the fact that the DAG Letter purportedly prohibits a provider

25 from disclosing that it has received “zero” NSLs or FISA orders, or “zero” of a certain kind of

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1 FISA order, subsequent to January 27, 2014, certain communications providers have publicly

2 disclosed either that they have never received any FISA orders or NSLs, or any of a certain kind

3 of FISA order. 4 C. The DOJ and FBI Deny Twitter’s Request to Be More Transparent

5

31. Twitter is a unique service built on trust and transparency. Twitter users are

6 permitted to post under their real names or pseudonymously. Twitter is used by world leaders,

7 political activists, journalists, and millions of other people to disseminate information and ideas,

8 engage in public debate about matters of national and global concern, seek justice, and reveal

9 government corruption and other wrongdoing. The ability of Twitter users to share information

10 depends, in part, on their ability to do so without undue fear of government surveillance.

11

32. Twitter is an ECS as that term is defined at 18 U.S.C. § 2510(15) since it provides

12 its users the ability to send and receive electronic communications. As an ECS and, more

13 generally, as a third-party provider of communications to the public, Twitter is subject to the

14 receipt of civil, criminal, and national security legal process, including administrative, grand jury,

15 and trial subpoenas; NSLs; court orders under the federal Wiretap Act, Stored Communications

16 Act, Pen Register and Trap and Trace Act, and FISA; and search warrants. Compliance with such

17 legal process can be compelled through the aid of a court.

18

33. The ability to engage in speech concerning the nature and extent of government

19 surveillance of Twitter users’ activities is critical to Twitter. In July 2012, Twitter released its

20 first Transparency Report. Release of this Transparency Report was motivated by Twitter’s

21 recognition that citizens must “hold governments accountable, especially on behalf of those who

22 may not have a chance to do so themselves.” Jeremy Kessel, Twitter Transparency Report,

23 Twitter Blog (July 2, 2012 20:17 UTC), https://blog.twitter.com/2012/twitter-transparency-report.

24 This Transparency Report listed the number of civil and criminal government requests for

25 account information and content removal, broken down by country, and takedown notices

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1 pursuant to the Digital Millennium Copyright Act received from third parties. The report also

2 provided information about how Twitter responded to these requests. The report did not contain

3 information regarding government national security requests Twitter may have received.

4 Subsequent biennial transparency reports have been released since then, including the most recent

5 on July 31, 2014.

6

34. In January 2014, Twitter requested to meet with DOJ and FBI officials to discuss

7 Twitter’s desire to provide greater transparency into the extent of U.S. government surveillance of

8 Twitter’s users through NSLs and court orders issued under FISA.

9

35. On January 29, 2014, representatives of the DOJ, FBI, and Twitter met at the

10 Department of Justice. At the meeting, Twitter explained why its services are unique and distinct

11 from the services provided by the companies who were recipients of the DAG Letter and why the

12 DAG Letter should not apply to Twitter, which was not a party to the proceedings that resulted in

13 the DAG Letter. Twitter also sought confirmation that it is not “similarly situated” to those

14 companies and that the limits imposed in the DAG Letter should not apply to Twitter. In

15 response, the DOJ and FBI told Twitter that the DAG Letter sets forth the limits of permissible

16 transparency-related speech for Twitter and that the letter would not be amended or supplemented

17 with additional options of preapproved speech.

18

36. In February 2014, Twitter released its Transparency Report for the second half of

19 2013, which included two years of data covering global government requests for account

20 information. In light of the government’s admonition regarding more expansive transparency

21 reporting than that set forth in the DAG Letter, Twitter’s February 2014 Transparency Report did

22 not include information about U.S. government national security requests at the level of

23 granularity Twitter wished to disclose.

24

37. In a blog post, Twitter explained the importance of reporting more specific

25 information to users about government surveillance. Twitter also explained how the U.S.

26

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1 government was unconstitutionally prohibiting Twitter from providing a meaningful level of

2 detail regarding U.S. government national security requests Twitter had or may have received:

3

We think the government’s restriction on our speech not only unfairly

4

impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of government affairs. We believe

5

there are far less restrictive ways to permit discussion in this area while

also respecting national security concerns. Therefore, we have pressed the

6

U.S. Department of Justice to allow greater transparency, and proposed

future disclosures concerning national security requests that would be

7

more meaningful to Twitter’s users.

8 Jeremy Kessel, Fighting for more #transparency, Twitter Blog (Feb. 6, 2014 14:58

9 UTC), https://blog.twitter.com/2014/fighting-for-more-transparency.

10

38. On or about April 1, 2014, Twitter submitted a draft July 2014 Transparency

11 Report to the FBI, seeking prepublication review. In its transmittal letter to the FBI, Twitter

12 explained:

13

We are sending this to you so that Twitter may receive a

determination as to exactly which, if any, parts of its Transparency

14

Report are classified or, in the Department’s view, otherwise may

15

not lawfully be published online.

16 A copy of Twitter’s letter dated April 1, 2014 is attached as Exhibit 3. Twitter’s draft

17 Transparency Report, which will be submitted separately, is Exhibit 4.

18

39. Through its draft Transparency Report, Twitter seeks to disclose certain categories

19 of information to its users, for the period July 1 to December 31, 2013, including:

20

a. The number of NSLs and FISA orders Twitter received, if any, in actual

aggregate numbers (including “zero,” to the extent that that number was

21

applicable to an aggregate number of NSLs or FISA orders, or to specific

22

kinds of FISA orders that Twitter may have received);

b. The number of NSLs and FISA orders received, if any, reported

23

separately, in ranges of one hundred, beginning with 1–99;

24

c. The combined number of NSLs and FISA orders received, if any, in

ranges of twenty-five, beginning with 1–24; 25

26

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28

1

d. A comparison of Twitter’s proposed (i.e., smaller) ranges with those

authorized by the DAG Letter; 2

e. A comparison of the aggregate numbers of NSLs and FISA orders

3

received, if any, by Twitter and the five providers to whom the DAG

Letter was addressed; and 4
f. A descriptive statement about Twitter’s exposure to national security

5

surveillance, if any, to express the overall degree of government

surveillance it is or may be subject to. 6
40. For five months, the FBI considered Twitter’s written request for review of the 7
draft Transparency Report. By letter dated September 9, 2014, the FBI denied Twitter’s request. 8
A copy of the FBI’s letter dated September 9, 2014 is attached as Exhibit 5. The FBI’s letter did 9
not, as requested, identify exactly which parts of the draft Transparency Report may not lawfully 10
be published. Instead, the letter stated vaguely that “information contained in the report” cannot 11
be publicly released; it provided examples of such information in the draft Transparency Report; 12
and it relied on a general assertion of national security classification and on the pronouncements 13
in the DAG Letter as its bases for denying publication: 14

15

We have carefully reviewed Twitter’s proposed transparency report and have concluded that information contained in the report is

16

classified and cannot be publicly released.

. . . Twitter’s proposed transparency report seeks to publish data . . .

17

in ways that would reveal classified details about [government

18

surveillance] that go beyond what the government has permitted

other companies to report. . . . This is inconsistent with the January

19

27th framework [set forth in the DAG Letter] and discloses

properly classified information.

20

Exhibit 5 at 1. The FBI reiterated that Twitter could engage only in speech that did not exceed

21 the preapproved speech set forth in the DAG Letter. It noted, for example, that Twitter could

22

explain that only an infinitesimally small percentage of its total

23

number of active users was affected by [government surveillance

by] highlighting that less than 250 accounts were subject to all

24

combined national security legal process. . . . That would allow

Twitter to explain that all national security legal process received

25

from the United States affected, at maximum, only 0.0000919

26

percent (calculated by dividing 249 by 271 million) of Twitter’s

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1

total users. In other words, Twitter is permitted to qualify its

description of the total number of accounts affected by all national

2

security legal process it has received but it cannot quantify that

3

description with the specific detail that goes well beyond what is

allowed under the January 27th framework and that discloses

4

properly classified information.

5 Id. at 1–2.

6

41. Since the FBI’s response does not identify the exact information in the draft

7 Transparency Report that can and cannot be published, Twitter cannot at this time publish any

8 part of the report. When the government intrudes on speech, the First Amendment requires that it

9 do so in the most limited way possible. The government has failed to meet this obligation.

10 Instead, Defendants simply impose the DAG Letter framework upon Twitter as Twitter’s sole

11 means of communicating with the public about national security surveillance.

12

COUNT I

13 (Request for Declaratory Judgment under 28 U.S.C. §§ 2201 and 2202 and Injunctive Relief)

14

42. Twitter incorporates the allegations contained in paragraphs 1 through 41, above.

15

43. Defendants have impermissibly infringed upon Twitter’s right to publish

16 information contained in Twitter’s draft Transparency Report, and Twitter therefore seeks a

17 declaration that Defendants have violated Twitter’s First Amendment rights. A case of actual

18 controversy exists regarding Twitter’s right to engage in First Amendment protected speech

19 following Defendants’ refusal to allow Twitter to publish information about its exposure to

20 national security surveillance that does not conform to either of the two preapproved formats set

21 forth in the DAG Letter. The fact that Defendants have prohibited Twitter from publishing facts

22 that reveal whether and the extent to which it may have received either one or more NSLs or

23 court orders pursuant to FISA, along with the other facts alleged herein, establish that a

24 substantial controversy exists between the adverse parties of sufficient immediacy and reality as

25 to warrant a declaratory judgment in Twitter’s favor. Twitter has suffered actual adverse and

26 harmful effects, including but not limited to, a prohibition on publishing information in the draft

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COMPLAINT FOR DECLARATORY JUDGMENT

28

1 Transparency Report to make it available to the public and Twitter’s users, the chilling effect

2 from Defendants’ failure to address specific content, and the threat of possible civil or criminal

3 penalties for publication.

4

44. The imposition of the requirements of the DAG Letter on Twitter violates the

5 Administrative Procedure Act because the DAG Letter represents a final agency action not in

6 accordance with law; the imposition of the DAG Letter on Twitter is contrary to Twitter’s

7 constitutional rights (namely the First Amendment) as alleged more specifically herein; the

8 imposition of the DAG Letter on Twitter is in excess of statutory jurisdiction, authority, or

9 limitations as alleged more specifically herein; and the requirements set forth in the DAG Letter

10 were imposed on Twitter without the observance of procedure required by law. Twitter is not

11 “similarly situated” to the parties addressed in the DAG Letter.

12

45. Upon information and belief, the restrictions in the DAG letter are based in part

13 upon the nondisclosure provision of 18 U.S.C. § 2709; FISA secrecy provisions, such as 50

14 U.S.C. § 1805(c)(2)(B); the Espionage Act, 18 U.S.C. § 793; nondisclosure agreements signed by

15 Twitter representatives, if any; and nondisclosure provisions in FISA court orders issued to

16 Twitter, if any.

17

46. The nondisclosure and judicial review provisions of 18 U.S.C. § 2709(c) are

18 facially unconstitutional under the First Amendment, including for at least the following reasons:

19 the nondisclosure orders authorized by § 2709(c) constitute a prior restraint and content-based

20 restriction on speech in violation of Twitter’s First Amendment right to speak about truthful

21 matters of public concern (e.g., the existence of and numbers of NSLs received); the

22 nondisclosure orders authorized by § 2709(c) are not narrowly tailored to serve a compelling

23 governmental interest, including because they apply not only to the content of the request but to

24 the fact of receiving an NSL and additionally are unlimited in duration; and the NSL

25 nondisclosure provisions are facially unconstitutional because the judicial review procedures do

26

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1 not meet procedural safeguards required by the First Amendment because they place the burden

2 of seeking to modify or set aside a nondisclosure order on the recipient of an NSL, do not

3 guarantee that nondisclosure orders imposed prior to judicial review are limited to a specified

4 brief period, do not guarantee expeditious review of a request to modify or set aside a

5 nondisclosure order, and require the reviewing court to apply a level of deference that conflicts

6 with strict scrutiny.

7

47. The nondisclosure provisions of 18 U.S.C. § 2709(c) are also unconstitutional as

8 applied to Twitter, including because Defendants’ interpretation of the nondisclosure provision of

9 18 U.S.C. § 2709(c), and their application of the same to Twitter via the DAG Letter, is an

10 unconstitutional prior restraint, content-based restriction, and viewpoint discrimination in

11 violation of Twitter’s right to speak about truthful matters of public concern. This prohibition on

12 Twitter’s speech is not narrowly tailored to serve a compelling governmental interest, and no such

13 interest exists that justifies prohibiting Twitter from disclosing its receipt (or non-receipt) of an

14 NSL or the unlimited duration or scope of the prohibition.

15

48. Section 2709 is also unconstitutional because 18 U.S.C. § 3511, which sets forth

16 the standard of review for seeking to modify or set aside a nondisclosure order under 18 U.S.C. §

17 2709, restricts a court’s power to review the necessity of a nondisclosure provision in violation of

18 separation of powers principles. The statute expressly limits a court’s ability to set aside or

19 modify a nondisclosure provision unless the court finds that “there is no reason to believe that

20 disclosure may endanger . . . national security.” 18 U.S.C. § 3511(b)(2), (3). This restriction

21 impermissibly requires the reviewing court to apply a level of deference to the government’s

22 nondisclosure decisions that conflicts with the constitutionally mandated level of review, which is

23 strict scrutiny.

24

49. The FISA statute, the Espionage Act, and other nondisclosure authorities do not

25 prohibit service providers like Twitter from disclosing aggregate information about the number of

26

-15-

27

COMPLAINT FOR DECLARATORY JUDGMENT

28

1 FISA orders they receive. Instead, these authorities protect the secrecy of particular targets and

2 ongoing investigations, and do not impose an obligation on service providers such as Twitter to

3 remain silent about the receipt or non-receipt of FISA orders generally, nor do they impose an

4 obligation on service providers not to disclose the aggregate numbers of specific ranges of FISA

5 orders received. To the extent that the Defendants read FISA secrecy provisions, such as 50

6 U.S.C. § 1805(c)(2)(B), as prohibiting Twitter from publishing information about the aggregate

7 number of FISA orders it receives, however, the FISA secrecy provisions are unconstitutional

8 including because they constitute a prior restraint and content-based restriction on speech in

9 violation of Twitter’s First Amendment right to speak about truthful matters of public concern.

10 Moreover, this restriction on Twitter’s speech is not narrowly tailored to serve a compelling

11 governmental interest, and no such interest exists that justifies prohibiting Twitter from disclosing

12 its receipt (or non-receipt) of a FISA order.

13

50. The FISA secrecy provisions are also unconstitutional as applied to Twitter,

14 including because Defendants’ interpretation of the FISA secrecy provisions and their application

15 with respect to Twitter is an unconstitutional prior restraint, content-based restriction, and

16 viewpoint discrimination in violation of Twitter’s right to speak about truthful matters of public

17 concern. Moreover, this prohibition imposed by Defendants on Twitter’s speech is not narrowly

18 tailored to serve a compelling governmental interest.

19

PRAYER FOR RELIEF

20

WHEREFORE, Twitter prays for the following relief:

21

A. A declaratory judgment that:

22

i. The draft Transparency Report that Twitter submitted to the FBI may be

lawfully published in its entirety or, alternatively, certain identified

23

portions may be lawfully published;

ii. Imposition of the requirements set forth in the DAG Letter on Twitter

24

violate the Administrative Procedure Act;

25

iii. The nondisclosure provisions of 18 U.S.C. § 2709 and the review

mechanisms of 18 U.S.C. § 3511 are facially unconstitutional under the

26

First Amendment;

-16-

27

COMPLAINT FOR DECLARATORY JUDGMENT

28

1

iv. The nondisclosure provisions of 18 U.S.C. § 2709 are unconstitutional

under the First Amendment as applied to Twitter;

2

v. The review mechanisms established under 18 U.S.C. § 3511 are facially

3

unconstitutional because they violate separation of powers principles;

vi. The FISA secrecy provisions are facially unconstitutional under the First

4

Amendment;

5

vii. The FISA secrecy provisions are unconstitutional under the First Amendment as applied to Twitter;

6

viii. The DAG Letter’s prohibition on reporting receipt of zero of a particular

kind of national security process is unconstitutional under the First

7

Amendment;

8

ix. The DAG Letter’s prohibition on reporting receipt of zero aggregate NSLs or FISA orders is unconstitutional under the First Amendment; and

9

x. The DAG Letter’s restrictions on reporting ranges of national security

process received are unconstitutional under the First Amendment. 10

B. A preliminary and permanent injunction prohibiting Defendants, their affiliates,

11

agents, employees, and attorneys, and any and all other persons in active concert or participation

12

with them, from seeking to enforce the terms contained in the DAG Letter on Twitter, or to

13

prosecute or otherwise seek redress from Twitter for transparency reporting that is inconsistent

14

with the terms contained in the DAG Letter.

15

C. An award of attorneys’ fees and costs to Twitter to the extent permitted by law.

16

D. Such further and other relief as this Court deems just and proper.

17

18

19

20

21

22

23

24

25

26

-17-

27

COMPLAINT FOR DECLARATORY JUDGMENT

28

1 DATED: October 7, 2014 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PERKINS COIE LLP
By: /s/ Eric D. Miller Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Michael A. Sussmann, D.C. Bar No. 433100 (pro hac vice to follow) MSussmann@perkinscoie.com James Snell, Bar No. 173070 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549 (pro hac vice to follow) HBerlin@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350
Attorneys for Plaintiff Twitter, Inc.
-18-
COMPLAINT FOR DECLARATORY JUDGMENT

 
 Case4:14-cv-04480-YGR Document33 Filed02/03/15 Page1 of 19

UNITED STATES DISTRICT COURT ORIGINAL

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE

TWITTER, INC.,

)

)

PLAINTIFF,

)

)

VS.

)

)

ERIC H. HOLDER, JR., ET AL )

)

DEFENDANTS.

)

____________________________)

CASE MANAGEMENT CONFERENCE PAGES 1 - 18 NO. C 14-04480YGR
OAKLAND, CALIFORNIA MONDAY, JANUARY 26, 2015

REPORTER'S TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFF:

PERKINS COIE 700 13TH STREET NW, SUITE 400 WASHINGTON, DC 20005-3960 BY: MICHAEL A. SUSSMANN, ATTORNEY AT LAW

PERKINS COIE LLP 3150 PORTER DRIVE PALO ALTO, CALIFORNIA 94304-1212 BY: JAMES G. SNELL, ATTORNEY AT LAW

FOR DEFENDANTS:

U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVENUE, NW WASHINGTON, D.C. 20044 BY: JULIA A. BERMAN, STEVEN Y. BRESSLER, ATTORNEYS AT LAW

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258

PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY; TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

Case4:14-cv-04480-YGR Document33 Filed02/03/15 Page2 of 19

2

1

MONDAY, JANUARY 26, 2015

2:12 P.M.

2

P R O C E E D I N G S

3

THE CLERK: CALLING CIVIL ACTION 14-4480, TWITTER

4

VERSUS HOLDER.

5

COUNSEL, PLEASE STATE YOUR APPEARANCES.

6

MR. SUSSMANN: GOOD AFTERNOON, YOUR HONOR. MICHAEL

7

SUSSMANN WITH PERKINS COIE REPRESENTING TWITTER. AND WITH ME

8

AT COUNSEL TABLE, CLOSEST TO YOU IS JIM SNELL, ALSO FROM MY

9

FIRM; AND BEN LEE, WHO'S A VICE-PRESIDENT, DEPUTY GENERAL

10

COUNSEL AT TWITTER.

11

THE COURT: OKAY. THANK YOU.

12

MR. BRESSLER: GOOD AFTERNOON, YOUR HONOR. STEVE

13

BRESSLER WITH THE U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION,

14

ON BEHALF OF THE DEFENDANTS. WITH ME AT COUNSEL TABLE IS MY

15

COLLEAGUE JULIE BERMAN, ALSO FROM THE DEPARTMENT OF JUSTICE.

16

THE COURT: WELL, MR. BRESSLER, SHOULD I SAY WELCOME

17

BACK?

18

MR. BRESSLER: SURE. THANK YOU, YOUR HONOR.

19

THE COURT: I CAN TELL YOU THE WEATHER'S APPARENTLY

20

MUCH NICER HERE THAN DC.

21

MR. BRESSLER: SO I HEAR. WELL, THAT'S USUALLY TRUE,

22

SO --

23

THE COURT: OKAY. WELL, I LEFT THIS ON CALENDAR

24

BECAUSE -- THE REST OF YOU CAN HAVE A SEAT -- BECAUSE THE

25

MOTION TO DISMISS IS NOT -- I MEAN, IT'S A PARTIAL MOTION TO

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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3

1

DISMISS.

2

WHAT I WAS TRYING TO FIGURE OUT -- AND I WILL LET YOU ALL

3

SPEAK TO THIS -- IS WHETHER OR NOT IT MAKES SENSE IN THIS

4

CASE, GIVEN THE ISSUES THAT ARE AT STAKE AND THE ISSUES THAT

5

ARE BEING LITIGATED, TO MOVE IN PARALLEL ON SOME OF THESE.

6

THAT IS, I UNDERSTAND THAT -- AND I'VE NOT -- I'VE NOT

7

READ THE MOTION, JUST YOUR STATEMENTS. AND, OBVIOUSLY, THE

8

BRIEFING ON THE ISSUES IS NOT COMPLETE. BUT WHAT I UNDERSTOOD

9

IS THAT THERE ARE VARIOUS ATTACKS BEING MADE ON THE

10

LIMITATIONS BEING PUT ON TWITTER TO, AS THEY SAY, ISSUE A

11

TRANSPARENCY REPORT.

12

AND THE MOTION TO DISMISS TAKES ISSUE WITH ONE OF THE --

13

OR AT LEAST A PORTION OF THE -- OF THE APPROACH, SOMETHING --

14

THE DAG LETTER IN PARTICULAR.

15

MR. BRESSLER: YOUR HONOR, THE MOTION TO DISMISS --

16

WELL, I'LL LET MR. SUSSMANN CHARACTERIZE HIS OWN COMPLAINT,

17

BUT THE MOTION TO DISMISS CHALLENGES ALL OF THE COMPLAINT

18

EXCEPT FOR THE FACIAL AND AS-APPLIED CHALLENGES TO THE

19

NATIONAL SECURITY LETTER -- PORTION OF THE NATIONAL SECURITY

20

LETTER STATUTORY SCHEME TITLE 18 U.S. CODE 2709. THAT'S THE

21

ONLY PART THAT WE DO NOT ADDRESS IN THE MOTION TO DISMISS.

22

SO THE MOTION TO DISMISS SEEKS TO DISMISS CLAIMS REGARDING

23

THE SO-CALLED DAG LETTER BUT ALSO ALL CLAIMS RELATED TO THE

24

FOREIGN INTELLIGENCE SURVEILLANCE ACT OR ANY ORDERS OR

25

DIRECTIVES ISSUED BY THE FISC OR OTHERWISE PURSUANT TO THAT

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4

1

ACT.

2

SO OUR VIEW IS THAT THAT WOULD, I BELIEVE, TAKE CARE OF

3

EVERYTHING EXCEPT THE CHALLENGE TO SECTION 2709, WHICH, AS WE

4

NOTE IN I THINK A FOOTNOTE TOWARDS THE END OF OUR MOTION TO

5

DISMISS, WE WOULD INTEND, ONCE WE'VE SEEN HOW YOUR HONOR RULES

6

ON WHAT WE'VE MOVED ON SO FAR -- THE GOVERNMENT WOULD INTEND

7

TO SEEK LEAVE, PURSUANT TO YOUR HONOR'S PROCEDURES, TO MOVE

8

FOR SUMMARY JUDGMENT ON THOSE CLAIMS.

9

WE ALSO NOTED THAT CLOSELY RELATED QUESTIONS ABOUT THE

10

CONSTITUTIONALITY OF THAT STATUTE ARE CURRENTLY BEFORE THE

11

NINTH CIRCUIT IN CONSOLIDATED CASES THAT WERE ARGUED LAST

12

OCTOBER.

13

THE COURT: ON THE 2709?

14

MR. BRESSLER: YES.

15

THE COURT: ARE THERE OTHER CASES PENDING IN THIS

16

JURISDICTION OR OTHER JURISDICTIONS THAT ARE RAISING THE SAME

17

ISSUES AS TWITTER?

18

MR. SUSSMANN, DO YOU HAVE ANY IDEA?

19

MR. SUSSMANN: NOT THAT I KNOW OF, OTHER THAN THE

20

APPEAL BEFORE THE NINTH CIRCUIT ON THE NSL ISSUE.

21

AND, YOUR HONOR, OUR -- THE GOVERNMENT FILED THEIR MOTION

22

TO DISMISS. OUR RESPONSE IS DUE A WEEK FROM FRIDAY. IN OUR

23

RESPONSE, WE BELIEVE THERE ARE A NUMBER OF OTHER ISSUES THAT

24

THE GOVERNMENT HAS NOT CHALLENGED. OBVIOUSLY THAT AWAITS YOUR

25

REVIEW OF OUR POSITION, BUT WE THINK THERE'S -- THERE'S --

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5

1

THERE ARE A FEW MORE THINGS REMAINING --

2

THE COURT: OKAY.

3

MR. SUSSMANN: -- THAT WERE NOT CHALLENGED.

4

THE COURT: OUTLINE THOSE FOR ME. GO AHEAD.

5

MR. SUSSMANN: EXCUSE ME?

6

THE COURT: OUTLINE THEM FOR ME.

7

MR. SUSSMANN: SURE. SO BEGIN WITH, THE GOVERNMENT

8

FRAMES OUR CASE AS WANTING TO PUBLISH A TRANSPARENCY REPORT,

9

AND THE -- THAT'S -- THAT'S A PART OF THE CASE BUT TO -- TO

10

TWITTER, THAT'S NOT ESSENTIAL TO THE CASE.

11

WE WERE -- WELL, SO THERE'S A LETTER FROM THE DEPUTY

12

ATTORNEY GENERAL FROM JANUARY OF 2014 THAT LAYS OUT PARTICULAR

13

OPTIONS THAT PROVIDERS CAN USE IN DISCLOSING NATIONAL SECURITY

14

LEGAL PROCESS IT HAS RECEIVED, IF ANY. AND THAT LETTER WAS

15

ISSUED AS PART OF A SETTLEMENT OF LITIGATION WITH FIVE

16

INTERNET COMPANIES THAT DIDN'T INCLUDE TWITTER.

17

AND WHEN THAT --

18

THE COURT: THE DAG LETTER.

19

MR. SUSSMANN: THE DAG LETTER.

20

AND WHEN THE DAG LETTER WAS FILED AS A PART OF THE

21

SETTLEMENT IN THE FOREIGN INTELLIGENCE SURVEILLANCE COURT, THE

22

GOVERNMENT INCLUDED IN ITS NOTICE -- THE VERY LAST LINE SAID

23

THAT THE TERMS OF THIS LETTER APPLY TO, QUOTE, ALL SIMILARLY

24

SITUATED COMPANIES."

25

AND SO TWITTER COULD GUESS BUT SHOULDN'T -- SHOULDN'T HAVE

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6

1

TO AS TO WHETHER OR NOT IT IS ONE OF THOSE. AND IN APRIL

2

OF -- OF 2014, TWITTER SUBMITTED TO THE GOVERNMENT A DRAFT

3

TRANSPARENCY REPORT THAT DESCRIBED THE NATIONAL SECURITY LEGAL

4

PROCESS, IF IN ANY, THAT TWITTER HAD RECEIVED IN MANY

5

DIFFERENT WAYS, DESCRIPTIVELY AND NUMBERS AND PERCENTAGES AND

6

ALL SORTS OF WAYS, AND REQUESTED THE -- THE FBI IN THAT CASE

7

TO ADVISE THEM ON WHICH PORTIONS OF THE LETTER ARE PERMISSIBLE

8

TO RELEASE AND WHICH ARE NOT.

9

AND FIVE MONTHS LATER IN SEPTEMBER, TWITTER RECEIVED A

10

LETTER FROM THE FBI -- THESE ARE ALL EXHIBITS TO OUR

11

COMPLAINT -- RECEIVED A LETTER FROM THE FBI SAYING THAT IT

12

COULD NOT -- IT COULD NOT RESPOND AND ANSWER THE QUESTION FOR

13

TWITTER BUT IT SAID THAT THE LETTER DID CONTAIN CLASSIFIED

14

INFORMATION SOMEWHERE IN THERE AND THAT THE -- THE

15

TRANSPARENCY REPORT COULDN'T BE RELEASED BUT THE GOVERNMENT

16

WASN'T WILLING TO MAKE A REDACTION AND INFORM TWITTER AS TO

17

WHAT COULD OR COULDN'T BE -- COULD OR COULDN'T BE PUBLISHED.

18

AND THEN ABOUT A MONTH LATER, TWITTER -- TWITTER FILED ITS

19

COMPLAINT.

20

IN NOVEMBER -- ON NOVEMBER 17TH, THE GOVERNMENT FILED WITH

21

THE COURT A REDACTED VERSION OF THE TRANSPARENCY REPORT. BUT

22

THIS ISN'T A CASE WHERE WE RECEIVED A REDACTED VERSION OF THE

23

REPORT AND THEN OUR -- SAID NO, WE WANT TO SAY ALL THESE

24

THINGS AND WE'RE CHALLENGING THAT.

25

WE CAME TO THE COURT IN A POSITION WHERE WE THOUGHT THAT

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7

1

THE PROCESS WAS NOT -- WAS UNCONSTITUTIONAL AND THAT, FURTHER,

2

IN LIGHT OF OUR FIRST AMENDMENT CHALLENGE WAS IN THE CONTEXT

3

OF ALL OF THE SPEECH THAT THE GOVERNMENT HAS BEEN PUTTING OUT

4

SINCE THE EDWARD SNOWDEN DISCLOSURES DECLASSIFYING INFORMATION

5

AND MAKING OTHER STATEMENTS ABOUT PROVIDERS AND WHAT THEY DO

6

AND NOT PROVIDING PROVIDERS OR, IN THIS CASE, TWITTER TO

7

RESPOND TO THOSE ISSUES.

8

SO THAT'S THE CONTEXT FOR THE CASE. AND IF -- FOR US, IT

9

ISN'T ABOUT JUST -- JUST A PARTICULAR PIECE OF PAPER WHICH WE

10

DIDN'T HAVE AT THE TIME THE COMPLAINT WAS FILED.

11

AND A COUPLE OF THE -- AND WE'RE STILL WORKING ON OUR

12

RESPONSE, BUT FOR SOME OF THE ISSUES THAT WERE NOT ADDRESSED

13

IN THE MOTION TO DISMISS, THE GOVERNMENT CHALLENGES OR OPPOSES

14

OUR APA CLAIM BY SAYING THAT THE DAG LETTER WASN'T FINAL

15

AGENCY ACTION. BUT THEY DO NOT ARGUE THAT THE PROMULGATION OF

16

THE DAG LETTER SATISFIED THE -- SATISFIES THE APA.

17

THEY ASK THE COURT TO SEND AND -- AND MR. BRESSLER, I'M --

18

CERTAINLY WILL GIVE YOU AN OPPORTUNITY TO DO A BETTER JOB OF

19

STATING YOUR POSITIONS --

20

THEY ASK THE COURT TO SEND THOSE CONSTITUTIONAL ISSUES

21

RELATING TO FISA, FISA STATUTE, FISA COURT ORDERS TO THE

22

FOREIGN INTELLIGENCE SURVEILLANCE COURT BUT THEY DON'T ARGUE

23

THAT THE NON-DISCLOSURE PROVISIONS OF FISA ARE CONSTITUTIONAL.

24

AND THEN FINALLY, THEY ASK THAT THE COURT DISMISS THE --

25

TWITTER'S FACIAL CHALLENGE ON -- REGARDING NATIONAL SECURITY

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8

1

LETTERS ON THE BASIS OF THE STANDARD OF REVIEW AND THE

2

STATUTE. BUT THEY DO NOT ARGUE THAT THE NATIONAL SECURITY

3

NON-DISCLOSURE PROVISIONS ARE CONSTITUTIONALLY -- ARE

4

CONSTITUTIONAL FACIALLY OR AS APPLIED.

5

THE COURT: HAS TWITTER RELEASED THE REDACTED VERSION

6

OF THE TRANSPARENCY REPORT?

7

MR. SUSSMANN: I BELIEVE THAT IT HAS.

8

NO, YOUR HONOR, THEN IT HAS NOT.

9

BUT, YOUR HONOR, I BELIEVE IT'S ON THE -- I BELIEVE IT'S

10

ON THE PUBLIC DOCKET, THE COURT'S PUBLIC DOCKET.

11

THE COURT: OKAY.

12

WELL, THAT'S HELPFUL IN TERMS OF OUTLINING THE ISSUES THAT

13

I'LL HAVE TO DEAL WITH.

14

AGAIN, OBVIOUSLY, I'VE NOT READ YOUR BRIEF, MR. BRESSLER.

15

I DON'T READ ANYTHING UNTIL IT'S ALL BRIEFED. I USUALLY START

16

WITH THE REPLY, BUT ANYTHING TO SAY AT THIS POINT?

17

MR. BRESSLER: I DON'T THINK I WOULD CHARACTERIZE

18

THINGS THE WAY THAT MR. SUSSMANN DID NECESSARILY. THAT

19

PROBABLY COMES AS NO SURPRISE. AND I COME HAVING NOT HEARD

20

FROM -- YOU KNOW, SINCE BRIEFING IS FAR FROM COMPLETE ON THAT

21

DIDN'T COME PREPARED TO HAVE OR DISCUSS THE MOTION TO DISMISS

22

IN FULL.

23

SO I WILL JUST, YOU KNOW, REITERATE THAT WE MOVED TO

24

DISMISS -- IN OUR VIEW, THE VAST MAJORITY OF THE COMPLAINT

25

EXCEPT CHALLENGE TO ONE STATUTE, WHICH WE WOULD INTEND TO MOVE

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9

1

ON LATER FOR SUMMARY JUDGMENT WITH THE COURT'S LEAVE.

2

AND AGAIN, THAT VERY CLOSELY RELATED IS BEFORE THE NINTH

3

CIRCUIT.

4

AS FAR AS THE GENERAL CMC ISSUES, THE PARTIES HAVE AGREED

5

TO A LOT, HAVE NOT AGREED TO EVERYTHING. WE DID AGREE TO PUT

6

OFF ANY DISCOVERY UNTIL AFTER THE COURT RULES ON THE MOTION TO

7

DISMISS. WE DO NOT AGREE ON HOW THE CASE SHOULD PROCEED AS TO

8

DISCOVERY AND OTHERWISE AFTER THAT.

9

AND I WOULD JUST POINT OUT TO THE COURT THAT I THINK OUR

10

RESPECTIVE POSITIONS ARE LAID OUT IN PART FOUR OF THE CASE

11

MANAGEMENT CONFERENCE REPORT. I'M NOT SURE IT'S NECESSARY TO

12

GET INTO THEM UNTIL AFTER YOUR HONOR RULES ON THE MOTION TO

13

DISMISS.

14

THE COURT: WELL, I THINK THAT WE CAN GET INTO THEM

15

NOW OR WE CAN GET INTO THEM AT THE -- AT THE HEARING ON THE

16

MOTION TO DISMISS BECAUSE IT WOULD NOT BE UNCOMMON TO ISSUE AN

17

ORDER AND THEN ALSO ADVISE YOU WHETHER OR NOT -- I MEAN, ONE

18

OF YOU WANTS TO STAY DISCOVERY, THE OTHER DOES NOT.

19

MR. BRESSLER: WELL, WE'VE AGREED TO STAY DISCOVERY.

20

THE COURT: NO, NO, NO.

21

MR. BRESSLER: I'M SORRY.

22

THE COURT: AFTER THE ORDER ISSUES.

23

EVEN AFTER THE ORDER ISSUES, I WAS UNDER THE IMPRESSION

24

THE GOVERNMENT WANTED TO BRING POTENTIALLY EARLY MOTIONS.

25

TWITTER WANTS DISCOVERY ON THE APPLICATION OF -- OF HOW THE

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10

1

GOVERNMENT IS APPLYING THE -- THE DAG PROTOCOL, FOR LACK OF A

2

DIFFERENT -- DIFFERENT WORD OR DIFFERENT PHRASE.

3

AND SO IT WILL BE HELPFUL TO UNDERSTAND YOUR PERSPECTIVES

4

BECAUSE USUALLY I ISSUE SOME KIND OF CASE MANAGEMENT ORDER

5

COMING OUT OF THOSE KINDS OF ORDERS.

6

MR. SUSSMANN: YOUR HONOR, WE CAN OFFER OR -- OUR

7

PERSPECTIVE NOW. WE BELIEVE THAT -- THAT LIMITED, FOCUSED,

8

AND RESPONSIBLE DISCOVERY IS APPROPRIATE IN THIS CASE AND WILL

9

BE NECESSARY FOR ITS RESOLUTION. BUT -- AND WE -- WE THINK

10

THAT IT'S APPROPRIATE AT THIS STAGE. BUT OUT OF RESPECT FOR

11

THE COURT'S RESOURCES AND THE GOVERNMENT'S RESOURCES, WE'VE

12

AGREED TO STAY THAT UNTIL AFTER DISPOSITION OF THE MOTION TO

13

DISMISS, WHICH OBVIOUSLY WILL -- WILL BE VERY SIGNIFICANT.

14

AND WE THINK THERE ARE -- WE HAVE AT THIS POINT 3 ISSUES

15

THAT WE THINK WILL LIKELY REQUIRE SOME DISCOVERY. AND TWITTER

16

AT THIS POINT DOES NOT INTEND TO SEEK ANY PRIVILEGED

17

DOCUMENTS. WE DON'T -- WE DON'T INTEND TO SEEK THROUGH

18

DISCOVERY ANY CLASSIFIED DOCUMENTS.

19

AND SO WHAT OUR APPROACH WOULD BE AND WHAT WE WOULD INTEND

20

TO DO IS ONCE THE COURT RULES ON THE GOVERNMENT'S MOTION TO

21

DISMISS, IS THAT WE WOULD ISSUE, AGAIN, TAILORED, TARGETED,

22

DISCOVERY REQUESTS FOR WHICH THE GOVERNMENT COULD THEN EITHER

23

SAY THEY HAVE NOTHING RESPONSIVE, SAY THEY HAVE SOMETHING

24

RESPONSIVE THAT'S PRIVILEGED, OR -- OR TURN OVER DOCUMENTS.

25

IF THEY OBJECTED TO THE ORDERS, THE JUDGE COULD -- IF THEY

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11

1

OBJECTED TO THE REQUEST, THE COURT COULD ADDRESS THEM AT THAT

2

TIME. BUT WE THINK THAT SOME LIMITED AMOUNT OF DISCOVERY WILL

3

BE NECESSARY, AND WE CAN PREVIEW SOME OF THEM FOR YOU NOW OR

4

WE CAN WAIT AND DO THAT AT A LATER POINT.

5

THE COURT: NO, I DON'T NEED THEM PREVIEWED AT THIS

6

POINT.

7

AND THEN I UNDERSTAND THE GOVERNMENT'S PERSPECTIVE IS THAT

8

NO DISCOVERY WOULD BE APPROPRIATE.

9

MR. BRESSLER: YES, YOUR HONOR. OR AT A MINIMUM,

10

THAT TO BEGIN WITH, THE COURT SHOULD HEAR FROM THE GOVERNMENT

11

IN A DISPOSITIVE MOTION THAT WOULD ADDRESS EVERYTHING AND

12

ANYTHING THAT IS REMAINING THAT WOULD OBVIATE THE NEED FOR

13

DISCOVERY.

14

I CONFESS, I AM -- WE MAY SEE THE CASE SOMEWHAT

15

DIFFERENTLY, AND MAYBE THAT WILL BECOME CLEARER WHEN WE SEE

16

PLAINTIFF'S OPPOSITION. WE HAVE BEEN CONFUSED AS TO WHAT

17

DISCOVERY THEY MAY SEEK THAT WOULD BE RELEVANT TO ANY OF -- OF

18

THESE CLAIMS AS WE UNDERSTAND THEM.

19

THE COURT: ANY BRIEF RESPONSE, MR. SUSSMANN?

20

MR. SUSSMANN: WOULD YOU -- I MEAN, YOU WERE -- I CAN

21

PREVIEW SOME OF THE ISSUES FOR THE GOVERNMENT'S BENEFIT.

22

THE COURT: I THINK -- I DON'T NECESSARILY NEED IT.

23

IT MAY BE HELPFUL, SO GO AHEAD.

24

MR. SUSSMANN: SURE. SO THERE WERE THREE -- THREE

25

AREAS WHERE, MR. BRESSLER, WE MAY BE SEEKING DISCOVERY. OF

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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12

1

COURSE WE DON'T KNOW RIGHT NOW --

2

THE COURT: AND YOU CAN STILL ADDRESS ME.

3

MR. SUSSMANN: YES, MA'AM. SORRY.

4

THE COURT: GO AHEAD.

5

MR. SUSSMANN: ONE OF THEM HAS TO DO WITH THE DEPTH

6

THE DAG -- WHAT WE REFER TO AS THE DAG LETTER, THE DEPUTY

7

ATTORNEY GENERAL'S LETTER, WHICH IS A NOVEL PIECE OF

8

CORRESPONDENCE TO -- TO SAY THE LEAST. IT WAS REACHED IN

9

THE -- IN THE CONTEXT OF A SETTLEMENT IN THE GOVERNMENT

10

LITIGATION WITH FIVE COMPANIES, AND IT WAS WIDELY REPORTED AT

11

THE TIME THAT THE REASON FOR THE LETTER AND THE SETTLEMENT WAS

12

DUE TO POLITICAL PRESSURE FROM THE WHITE HOUSE TO SETTLE THE

13

CASE BEFORE THE PRESIDENT'S STATE OF THE UNION ADDRESS.

14

AND, IN FACT, THE PRESIDENT MADE A SPEECH ON THE HEELS OF

15

THE SETTLEMENT ADDRESSING IT, AND THERE ARE THINGS ABOUT THAT

16

AND -- AND MORE IMPORTANTLY, AS WE'LL SAY IN OUR -- IN OUR

17

BRIEF, THAT THE QUESTION ABOUT WHETHER SOMETHING'S A FINAL

18

RULE OR NOT, CASES SAY, DOES NOT DEPEND ON WHAT THE GOVERNMENT

19

CALLS IT BUT HOW THEY TREAT IT.

20

AND SO THERE ARE A NUMBER OF DIFFERENT EXAMPLES OF HOW THE

21

GOVERNMENT HAS SOUGHT TO ENFORCE IT OR REFERRED TO IT, WHICH

22

WE THINK WILL BE RELEVANT TO UNDERSTANDING WHAT EXACTLY --

23

WHAT EXACTLY THE LETTER IS BECAUSE WE THINK THAT IN SOME APA

24

CASES, EVERYONE KNOWS WHAT THE GOVERNMENT DID, AND THERE'S THE

25

APPLICATION OF THE LAW.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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13

1

IN THIS CASE, THERE WILL BE SOME FACTUAL DISCOVERY TO

2

DETERMINE WHAT EXACTLY THIS SORT OF CREATURE IS. AND SO

3

THAT'S ONE AREA.

4

THE SECOND AREA -- AND THIS ALSO RELATES, YOUR HONOR, TO

5

AN ISSUE THAT I -- I REALIZED AFTER THE FACT THE GOVERNMENT

6

DID NOT ADDRESS IN THEIR -- IN THEIR PAPERS, IS WHAT WE

7

CALL -- PEOPLE REFER TO AS SAYING "ZERO" OR "THE ZERO

8

PROHIBITION."

9

AND WHILE TWITTER WANTS TO SPEAK MORE ABOUT THE NATIONAL

10

SECURITY LEGAL PROCESS THAT IT MAY HAVE RECEIVED FROM THE

11

GOVERNMENT, IT VERY MUCH WANTS THE ABILITY TO SAY "ZERO" AS

12

APPROPRIATE.

13

AND SO AS YOUR HONOR WILL SEE, IN THE DEPUTY

14

ATTORNEY GENERAL'S LETTER, THERE ARE APPROVED RANGES OF SPEECH

15

FROM THE GOVERNMENT. AND IN ONE OPTION, THERE ARE BLOCKS OF A

16

THOUSAND. IN ANOTHER OPTION, THERE ARE BLOCKS OF 250, BUT

17

BOTH BEGIN WITH ZERO. SO THE FIRST CATEGORY IS ZERO TO 999.

18

THE SECOND ONE IS ZERO TO 249. AND THE PURPOSE OF THAT IS SO

19

THAT COMPANIES CAN'T SAY THEY'VE RECEIVED ZERO OF A PARTICULAR

20

KIND OF LEGAL PROCESS.

21

THEY -- SO IF A COMPANY'S RECEIVED NOTHING, THEY HAVE TO

22

SAY, "WE HAVE RECEIVED ZERO TO 999 OF THESE." AND TWITTER

23

WOULD LIKE THE ABILITY TO SAY "ZERO" EITHER FOR REGARDING

24

NATIONAL SECURITY LETTERS OR REGARDING FISA ORDERS OR

25

REGARDING PARTICULAR KINDS OF FISA ORDERS AS APPLICABLE. AND

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1

THERE ARE AT LEAST 9 COMPANIES WHO HAVE DONE THIS SINCE THE

2

GOVERNMENT ISSUED -- SINCE THE DAG LETTER CAME OUT.

3

THE COURT: NINE COMPANIES THAT HAVE SAID ZERO OR

4

NINE COMPANIES THAT HAVE SAID IT FALLS WITHIN THE RANGE OF

5

ZERO TO 999?

6

MR. SUSSMANN: WHO'VE SAID ZERO. WHO WE WOULD

7

CONSIDER TO BE SIMILARLY SITUATED.

8

SO, AGAIN, WE MIGHT -- WE ANTICIPATE REQUESTING SOME

9

LIMITED DISCOVERY ABOUT THE ZERO QUESTION, AGAIN, NOT SEEKING

10

ANY PRIVILEGE OR CLASSIFIED INFORMATION.

11

AND THEN THE THIRD ISSUE FOR WHICH WE MIGHT WANT TO SEEK

12

SOME LIMITED DISCOVERY RELATES TO THAT PART OF OUR FIRST

13

AMENDMENT CLAIM THAT DEALS WITH THE VIEWPOINT DISCRIMINATION,

14

A SORT OF SUBPART OF THE FIRST AMENDMENT LAW THAT SAYS THAT

15

THE GOVERNMENT CAN'T CONTROL THE MARKETPLACE OF IDEAS AND JUST

16

SAY SORT OF THIS IS WHAT THE SPEECH CAN BE.

17

AND WE BELIEVE THAT THAT IS WHAT -- THAT'S WHAT'S HAPPENED

18

IN THIS CASE AND THAT THE GOVERNMENT HAS IN MANY, MANY

19

INSTANCES DECLASSIFIED INFORMATION NOT FOR -- NOT BASED ON

20

NATIONAL SECURITY -- THE GOVERNMENT HAS SAID BASED ON THE

21

PUBLIC POLICY, BASED ON THESE NEEDS, WE'RE DECLASSIFYING THESE

22

THINGS TO SUIT SOMETHING THE GOVERNMENT WANTS TO SAY.

23

AND -- AND IT'S VIEWPOINT DISCRIMINATION WITH REGARD TO

24

TWITTER, AND THAT MIGHT BE AN AREA FOR SOME LIMITED DISCOVERY

25

AS WELL.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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15

1

THE COURT: ALL RIGHT.

2

MR. BRESSLER, YOU CAN CHEW ON THAT. I'M NOT GOING TO ASK

3

YOU FOR A RESPONSE GIVEN THAT IT'S THE FIRST TIME THAT YOU'VE

4

HEARD IT, BUT AT LEAST YOU CAN START THINKING ABOUT IT.

5

I --

6

MR. BRESSLER: CAN I JUST RESPOND --

7

THE COURT: SURE.

8

MR. BRESSLER: -- BRIEFLY TO -- I'M SURE YOUR HONOR

9

WILL HEAR MORE ABOUT THESE OR READ MORE ABOUT THESE IN THE

10

PAPERS AND THE EVENTUAL ARGUMENT. BUT ONE DISPUTE WE HAVE

11

HERE IS OVER THE EFFECT OF THE -- THE SO-CALLED DAG LETTER AND

12

WHETHER IT IS, YOU KNOW, SOME SORT OF GENERALLY APPLICABLE

13

POLICY VERSUS WHAT WE DESCRIBE IN OUR PAPERS GUIDELINES AS TO

14

HOW TO AVOID REVEALING CLASSIFIED INFORMATION.

15

THE ONLY OTHER THINGS I WANTED TO ADDRESS IS SEVERAL TIMES

16

BOTH ORALLY AND IN THEIR PAPERS, MR. SUSSMANN AND TWITTER HAVE

17

REFERRED TO THE -- THE DAG LETTER AS RESULTING FROM A

18

SETTLEMENT.

19

THERE WAS NO SETTLEMENT IN THAT LITIGATION BEFORE THE

20

FOREIGN INTELLIGENCE SURVEILLANCE COURT. THE PRIVATE

21

COMPANIES WHO BROUGHT IT VOLUNTARILY DISMISSED IT. THERE'S NO

22

SETTLEMENT DOCUMENTS. THIS MAY BE AN ACADEMIC POINT, BUT I

23

JUST WANTED TO STATE OUR VIEW ON THAT.

24

THE COURT: WELL, IT WILL BE INTERESTING TO GET INTO.

25

OKAY. I -- I KNOW YOU EACH CAME A LONG WAY. I STILL FIND

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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16

1

IT HELPFUL TO UNDERSTAND WHAT THE ISSUES ARE AND HOW -- HOW

2

THEY'RE GOING TO GET TEED UP.

3

AND I GUESS, MR. SUSSMANN, YOU'RE FROM DC AS WELL, SO --

4

MR. SUSSMANN: YES, YOUR HONOR.

5

THE COURT: -- SO WELCOME TO THIS SIDE OF THE

6

COUNTRY.

7

MR. SUSSMANN: IT'S NOT SNOWING HERE.

8

THE COURT: IT IS NOT SNOWING HERE. WE DO NOT HAVE A

9

BLIZZARD ON ITS WAY BUT, FRANKLY, WE REALLY WISH WE HAD SOME

10

SNOW ON THIS SIDE OF THE COAST, SO THAT PART OF IT, WE DO

11

MISS.

12

ALL RIGHT. WELL, THIS IS HELPFUL AND I THINK WILL PROVIDE

13

A GOOD FRAMEWORK SO THAT WHEN I START LOOKING AT THE PAPERS,

14

IT -- IT WILL JUST MAKE IT MORE EFFICIENT TO GET THROUGH THEM.

15

I HAD YOUR COMPLAINT BUT HAD NOT GOTTEN THROUGH THE WHOLE

16

THING.

17

MR. SUSSMANN: YOUR HONOR, I'VE -- ONE

18

ADMINISTRATIVE --

19

THE COURT: SURE.

20

MR. SUSSMANN: -- DETAIL.

21

EXHIBIT 4 TO THE COMPLAINT AS WE FILED IT REFERENCES THE

22

UNREDACTED TRANSPARENCY REPORT THAT WE SENT TO THE GOVERNMENT

23

AND WHICH THEY HAVE ADVISED US CONTAINS CLASSIFIED

24

INFORMATION. SO SEPARATELY -- SEPARATELY, WE FILED THAT

25

DOCUMENT WITH THE COURT SECURITY OFFICER. AND IT'S SOME --

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

Case4:14-cv-04480-YGR Document33 Filed02/03/15 Page17 of 19

17

1

SOMEWHERE OUT THERE. I DON'T KNOW IF IT'S PHYSICALLY IN THE

2

COURTROOM, BUT WE DID FILE THE FULL UNREDACTED -- AND I

3

PREPARED IT MYSELF. AND I HAVE A NATIONAL SECURITY CLEARANCE.

4

SO IF THERE IS SOME -- THERE MAY BE SOME POINT OF TIME

5

WHEN THE DOCUMENT ITSELF IS RELEVANT AND IT -- YOU WON'T SEE

6

IT IN YOUR PAPERS, BUT IT'S SOMEWHERE IN THE COURT SYSTEM.

7

THE COURT: WELL, THAT'S HELPFUL. OUR COURT SECURITY

8

OFFICER WHO HANDLES THOSE, I'M FAMILIAR WITH HIM, AND HE'S

9

FAMILIAR WITH ME GIVEN SOME OTHER LITIGATION --

10

MR. SUSSMANN: RIGHT.

11

THE COURT: -- ON THESE TOPICS.

12

AND WHEN IT'S AN APPROPRIATE TIME, WE TAKE THE APPROPRIATE

13

MEASURES AND --

14

MR. SUSSMANN: RIGHT.

15

THE COURT: -- AND I WILL SEE IT, BUT IT'S HELPFUL TO

16

KNOW THAT -- I MEAN, THIS IS A DIFFERENT SITUATION.

17

FREQUENTLY, THE LITIGANTS DON'T HAVE ACCESS TO THE

18

DOCUMENTS THAT THEY SAY ARE CLASSIFIED AND THEY'RE SEEKING TO

19

HAVE THEM UNCLASSIFIED.

20

SO THAT'S A GOOD REMINDER.

21

MR. BRESSLER: TWO -- TWO POINTS. ONE RESPONSIVE AND

22

ONE -- ONE SEPARATE. JUST DRAW TO YOUR HONOR'S ATTENTION, WE

23

DID FILE A NOTICE STATING THAT THAT DOCUMENT HAD BEEN LODGED

24

WITH THE CLASSIFIED INFORMATION SECURITY OFFICER AND THAT IS

25

ON THE DOCKET WITH HIS CONTACT INFORMATION.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

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18

1

WE ALSO RESERVE THE RIGHT TO OBJECT TO PLAINTIFF OR

2

PRIVATE PARTIES SEEKING TO FILE CLASSIFIED NATIONAL SECURITY

3

INFORMATION, BUT THAT IS JUST A RESERVATION.

4

THE SEPARATE POINT IS -- WANTED TO CLARIFY WITH YOUR

5

HONOR -- AT THE TIME WHEN WE ARE BEFORE YOU TO ARGUE THE

6

MOTION TO DISMISS, IT WOULD BE HELPFUL TO KNOW IF THE COURT

7

WOULD PERMIT MS. BERMAN AND MYSELF TO DIVIDE THE ARGUMENT

8

ISSUE BY ISSUE OR IF YOUR HONOR WILL WANT TO HEAR FROM ONLY

9

ONE PERSON.

10

THE COURT: NO, THAT'S FINE WITH ME.

11

MR. BRESSLER: THANK YOU.

12

THE COURT: ANYTHING ELSE?

13

MR. SUSSMANN: NO, YOUR HONOR.

14

THE COURT: OKAY. TRAVEL SAFELY. AND WE WILL SEE

15

YOU BACK HERE, I THINK, AT THE END OF -- THE BEGINNING OF

16

MARCH. RIGHT?

17

MR. BRESSLER: THANK YOU, YOUR HONOR.

18

MR. SUSSMANN: THANK YOU, YOUR HONOR.

19

THE COURT: THANK YOU.

20

(PROCEEDINGS WERE CONCLUDED AT 2:36 P.M.)

21

--O0O--

22

23

24

25

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

Case4:14-cv-04480-YGR Document33 Filed02/03/15 Page19 of 19

1

2

CERTIFICATE OF REPORTER

3

4

I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT

5

FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

6

I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR, RELATED TO,

7

NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN WHICH THIS

8

HEARING WAS TAKEN, AND FURTHER THAT I AM NOT FINANCIALLY NOR

9

OTHERWISE INTERESTED IN THE OUTCOME OF THE ACTION.

10

11

___________________________________

12

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR

13

THURSDAY, JANUARY 29, 2015

14

15

16

17

18

19

20

21

22

23

24

25

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

 
 Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page1 of 27

1 Brett Max Kaufman (Of Counsel) brettmaxkaufman@nyu.edu
2 TECHNOLOGY LAW & POLICY CLINIC NEW YORK UNIVERSITY SCHOOL OF LAW
3 245 Sullivan Street New York, New York 10012
4 Telephone: 212-998-6430 Facsimile: 212-995-4031
5 Joseph C. Gratz (SBN 240676)
6 jgratz@durietangri.com DURIE TANGRI LLP
7 217 Leidesdorff Street San Francisco, CA 94111
8 Telephone: 415-362-6666 Facsimile: 415-236-6300
9 Attorneys for Amicus Curiae
10 Freedom of the Press Foundation

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

OAKLAND DIVISION

15 TWITTER, INC.,

Case No. 4:14-cv-04480-YGR

16

Plaintiff,

17

v.

18 ERIC HOLDER,

Attorney General of the United States,

19

UNITED STATES DEPARTMENT OF JUSTICE,

20

JAMES COMEY,

21

Director of the Federal Bureau of

Investigation, and

22

FEDERAL BUREAU OF INVESTIGATION,

23

Defendants.

24

BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS
Ctrm: 1 – 4th Floor Judge: Honorable Yvonne Gonzalez Rogers

25

26

27

28

BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS / CASE NO. 4:14-CV-04480-YGR

Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page2 of 27

1

TABLE OF CONTENTS

2

Page

3 STATEMENT OF INTEREST OF AMICUS CURIAE .............................................................................1

4 INTRODUCTION .......................................................................................................................................1

5 ARGUMENT...............................................................................................................................................2

6 I. 7 8 9

TRANSPARENCY REPORTING BY TECHNOLOGY COMPANIES ABOUT GOVERNMENT SURVEILLANCE ON U.S. NETWORKS IS OF PROFOUND IMPORTANCE TO THE AMERICAN PUBLIC AND ONGOING DEMOCRATIC DEBATE. .........................................................................................................................................2
A. The American public is currently engaged in a robust democratic debate concerning the proper role, scope, and limits of government surveillance. ........................2

10

B. Technology companies must be key participants in the ongoing debate about

government surveillance in the United States in order to ensure that the public is

11

adequately informed.............................................................................................................6

12
13 II.
14

C. The government has consistently frustrated technology companies’ efforts to join and participate in the ongoing public debate. ......................................................................8
THE GOVERNMENT’S CONTENT-BASED RESTRICTIONS ON TWITTER’S SPEECH ON MATTERS OF CORE PUBLIC CONCERN FAIL STRICT SCRUTINY. ..........10

15

A. The proper role, scope, and limits of government surveillance are matters of core

public concern. ...................................................................................................................10

16

B. The government’s restrictions on sharing information about national-security

17

process with the public are content-based. ........................................................................11

18

C. The government’s restrictions on speech are not narrowly tailored to serve a

compelling interest.............................................................................................................12

19

D. The government’s clearance rule smacks of viewpoint discrimination, which is

20

always disfavored under the First Amendment. ................................................................15

21 III. 22

THE GOVERNMENT’S RESTRICTION ON THE PUBLICATION OF TWITTER’S TRANSPARENCY REPORT IS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON CORE POLITICAL SPEECH. ......................................................................................................17

23 CONCLUSION..........................................................................................................................................19

24

25

26

27

28
i BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS / CASE NO. 4:14-CV-04480-YGR

Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page3 of 27

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Alexander v. United States,

509 U.S. 544 (1993).............................................................................................................................17

5

Am. Civil Liberties Union of Nev. v. City of Las Vegas,

6

466 F.3d 784 (9th Cir. 2006) .........................................................................................................11, 14

7 Ashcroft v. Am. Civil Liberties Union,

535 U.S. 564 (2002).............................................................................................................................11

8

Brown v. Cal. Dep’t of Transp.,

9

321 F.3d 1217 (9th Cir. 2003) .............................................................................................................16

10 Brown v. Entm’t Merchs. Ass’n,

131 S. Ct. 2729 (2011) .........................................................................................................................11

11

CBS, Inc. v. Davis,

12

510 U.S. 1315 (1994)...........................................................................................................................19

13 Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010).......................................................................................................................15, 17

14

City of Ladue v. Gilleo,

15

512 U.S. 43 (1994)...............................................................................................................................17

16 City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986)...............................................................................................................................12

17

Connick v. Myers,

18

461 U.S. 138 (1983).............................................................................................................................10

19 Doe, Inc. v. Mukasey,

549 F.3d 861 (2d Cir. 2008)...........................................................................................................12, 19

20

FCC v. League of Women Voters,

21

468 U.S. 364 (1984).............................................................................................................................12

22 First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978).............................................................................................................................16

23

Freedman v. Maryland,

24

380 U.S. 51 (1965)...............................................................................................................................19

25 Garrison v. Louisiana,

379 U.S. 64 (1964)...............................................................................................................................10

26

Gentile v. State Bar of Nev.,

27

501 U.S. 1030 (1991)...........................................................................................................................10

28
ii BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS / CASE NO. 4:14-CV-04480-YGR

Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page4 of 27

1 Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994).......................................................................................................................11, 12

2

McCullen v. Coakley,

3

134 S. Ct. 2518 (2014) .............................................................................................................11, 12, 16

4 McKinley v. City of Eloy,

705 F.2d 1110 (9th Cir. 1983) .............................................................................................................10

5

Mills v. Alabama,

6

384 U.S. 214 (1966).............................................................................................................................10

7 N.Y. Times Co. v. United States,

403 U.S. 713 (1971).............................................................................................................................18

8

Neb. Press Ass’n v. Stuart,

9

427 U.S. 539 (1976).......................................................................................................................17, 19

10 Org. for a Better Austin v. Keefe,

402 U.S. 415 (1971).............................................................................................................................17

11

Pleasant Grove City v. Summum,

12

555 U.S. 460 (2009).............................................................................................................................11

13 S.O.C., Inc. v. Cnty. of Clark,

152 F.3d 1136 (9th Cir. 1998) .............................................................................................................14

14

Smith v. Daily Mail Pub. Co.,

15

443 U.S. 97 (1979).........................................................................................................................17, 18

16 Sorrell v. IMS Health Inc.,

131 S. Ct. 2653 (2011) .........................................................................................................................15

17

Susan B. Anthony List v. Driehaus,

18

134 S. Ct. 2334 (2014) .........................................................................................................................18

19 Thornhill v. Alabama,

310 U.S. 88 (1940)...............................................................................................................................10

20

United States v. Playboy,

21

529 US 803 (2000)...............................................................................................................................12

22 United States v. Stevens,

559 U.S. 460 (2010).............................................................................................................................12

23

Ward v. Rock Against Racism,

24

491 U.S. 781 (1989).......................................................................................................................11, 12

25 Waters v. Churchill,

511 U.S. 661 (1994).............................................................................................................................16

26

Wright v. FBI,

27

Nos. 02–915, 03–226, 2006 WL 2587630 (D.D.C. July 31, 2006) .....................................................16

28
iii BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS / CASE NO. 4:14-CV-04480-YGR

Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page5 of 27

1 Statutes

2 18 U.S.C. § 2709(c) .....................................................................................................................................6

3 50 U.S.C. § 1805(c)(2)(B) .........................................................................................................................13

4 Other Authorities

5 Adi Roberston & Nathan Ingraham, USA Freedom Act for NSA Reform is Voted Down in

the Senate, The Verge (Nov. 18, 2014, 8:29 PM)..................................................................................4

6

AT&T, Inc., Transparency Report for 2013 (2014) ....................................................................................7

7

Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data from Nine U.S.

8

Internet Companies in Broad Secret Program, Wash. Post, June 7, 2013 ............................................6

9 Barton Gellman et al., In NSA-Intercepted Data, Those Not Targeted Far Outnumber the

Foreigners Who Are, Wash. Post, July 5, 2014 .....................................................................................3

10

Benjamin Franklin, On Freedom of Speech and the Press, Penn. Gazette, Nov. 17, 1737.........................3

11

Brad Smith, Unfinished Business on Government Surveillance Reform (June 4, 2014) .......................9, 14

12

Cecilia Kang, U.S. Sought Data, Tech Firms Say, Wash. Post, Jun 14, 2013 .........................................8, 9

13

Charlie Savage, N.S.A. Said to Search Content of Messages to and From U.S., N.Y.

14

Times, Aug. 8, 2013...............................................................................................................................3

15 Electronic Frontier Found., Who Has Your Back? ......................................................................................8

16 Ellen Nakashima & Andrea Peterson, House Votes to Curb NSA ‘Backdoor’ U.S. Data

Searches, Wash. Post, June 20, 2014.....................................................................................................5

17

Ellen Nakashima & Ashkan Soltani, NSA Shouldn’t Keep Phone Database, Review Board

18

Recommends, Wash. Post, Dec. 18, 2013 ..............................................................................................4

19 Ellen Nakashima, Tech Firms Tussle with DOJ over the Right to Say ‘Zero’, Wash. Post,

Dec. 16, 2014 .......................................................................................................................................15

20

Ewen MacAskill & Gabriel Dance, NSA Files: Decoded–What the Revelations Mean for

21

You, Guardian, Nov. 1, 2013..................................................................................................................2

22 Ewen MacAskill, NSA Paid Millions to Cover Prism Compliance Costs for Tech

Companies, Guardian, Aug. 23, 2013..................................................................................................16

23

Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987)......................................12

24

Glenn Greenwald & Ewen MacAskill, NSA Prism Program Taps in to User Data of

25

Apple, Google and Others, Guardian, June 7, 2013 ..............................................................................2

26 Glenn Greenwald, Major Opinion Shifts, in the US and Congress, on NSA Surveillance

and Privacy, Guardian, July 23, 2013....................................................................................................4

27

Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers

28

Daily, Guardian, June 6, 2013 ...............................................................................................................2

iv
BRIEF OF AMICUS CURIAE FREEDOM OF THE PRESS FOUNDATION ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS / CASE NO. 4:14-CV-04480-YGR

Case4:14-cv-04480-YGR Document52-1 Filed02/17/15 Page6 of 27

1 Kara Brandeisky, NSA Surveillance Lawsuit Tracker, ProPublica, July 10, 2013 (last

updated Feb. 27, 2014)...........................................................................................................................4

2

Larry Page, What the . . .?, Google Official Blog (June 7, 2013)................................................................6

3

Letter from Deputy Att’y Gen. James M. Cole to General Counsels (Jan. 27, 2014) .....................9, 16, 17

4

Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James Madison

5

(G. Hunt ed. 1910) .................................................................................................................................3

6 Letter from Peter J. Kadzik, Principal Deputy Asst. Att’y Gen. to Hon. Joseph R. Biden,

President of U.S. Senate (Apr. 30, 2014).............................................................................................16

7

Levi Sumagaysay, EFF ‘Who Has Your Back’ Report Standouts, for Better or Worse:

8

Apple, Yahoo, Amazon, Snapchat (May 16, 2014, 11:27 AM)..............................................................8

9 Michelle Richardson & Robyn Greene, NSA Legislation Since the Leaks Began, ACLU

Blog of Rights (Aug. 15, 2013, 10:48 A.M.) .........................................................................................4

10

Mot. for Declaratory J. of Google Inc.’s First Amendment Right to Publish Aggregate

11

Information About FISA Orders (FISC June 18, 2013) ........................................................................9

12 Office of the Dir. of Nat’l Intelligence, Declassified, IC on the Record .....................................................5

13 Office of the Dir. of Nat’l Intelligence, ODNI General Counsel Robert Litt Speaks on

Intelligence Surveillance Reform at the Brookings Institute, IC on the Record (Feb. 4,

14

2015) ......................................................................................................................................................5

15 Office of the Dir. of Nat’l Intelligence, Signals Intelligence Reform 2015 Anniversary

Report, IC on the Record (2015)............................................................................................................5

16

Pinterest.com, Our First Transparency Report (Mar. 3, 2014) .................................................................15

17

President’s Review Grp. on Intelligence & Commc’ns Techs., Liberty and Security in a

18

Changing World: Report and Recommendations (2014).......................................................................4

19 Privacy & Civil Liberties Oversight Bd., Recommendations Assessment Report (2015) ...........................4

20 Privacy & Civil Liberties Oversight Bd., Report on the Surveillance Program Operated

Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (2014) ......................................4

21

Privacy & Civil Liberties Oversight Bd., Report on the Telephone Records Program

22

Conducted Under Section 215 of the USA Patriot Act and on the Operations of the

Foreign Intelligence Surveillance Court (2014)....................................................................................4

23

Rainey Reitman, 7 Things to Love About reddit’s First Transparency Report, Electronic

24

Frontier Found. DeepLinks Blog (Feb. 2, 2015) ...................................................................................7

25 reddit, reddit Transparency Report, 2014 (2015)......................................................................................14

26 Richard Salgado, Shedding Some Light on Foreign Intelligence Surveillance Act (FISA)

Requests, Google Official Blog (Feb. 3, 2014)............................................................................7, 9, 14

27

Spencer Ackerman, Failure to Pass US Surveillance Reform Bill Could Still Curtail NSA

28

Powers, Guardian, Oct. 3, 2014 .............................................................................................................5

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1 Taier Perlman & Peter Micek, Disclose All the Things! Access Launches Transparency

Reporting Index, AccessNow (Nov. 19, 2014, 1:37 PM) ......................................................................8

2

Tom Risen, Obama Weighs NSA Options as Deadline Nears, U.S. News & World Rep.,

3

Jan. 26, 2015 ......................................................................................................................................4, 5

4 Trevor Callaghan, Transparency Report: New Numbers and a New Look for Government

Requests, Google (Dec. 22, 2014) .........................................................................................................7

5

Tumblr, Tumblr Transparency Report 2013 (2014) ..................................................................................15

6

Twitter, Twitter Transparency Report: Information Requests from January to June 2014

7

(2015) .....................................................................................................................................................7

8 Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping,

Dragnet-collection and Online Monitoring Act (USA Freedom Act), H.R. 3361, 113th

9

Cong. (2014) ..........................................................................................................................................4

10 Yahoo, Users First, in Yahoo Transparency Report ...................................................................................7

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

STATEMENT OF INTEREST OF AMICUS CURIAE*

2

The Freedom of the Press Foundation is a non-profit organization dedicated to helping support

3 and defend public-interest journalism. Freedom of the Press Foundation advocates for transparency and

4 accountability in an effort to preserve the rights guaranteed to the press under the First Amendment and

5 strengthen the public’s right to know. As part of that mission, the organization has served as amicus

6 curiae in cases addressing First Amendment issues raised by emerging technologies and government

7 surveillance in the federal courts. See, e.g., Elonis v. United States, No. 13-983 (U.S. cert. granted June

8 16, 2014); Under Seal v. Holder, No. 13-16732 (9th Cir. argued Oct. 8, 2014); United States v. Brown,

9 No. 12-cr-413 (N.D. Tex. judgment entered Jan. 29, 2015).

10

INTRODUCTION

11

In the 1970s, the Church Committee conducted a public and probing investigation of National

12 Security Agency (“NSA”) surveillance inside the United States that uncovered evidence of pervasive and

13 unwarranted intrusions on Americans’ personal privacy. These revelations sparked public outcry and led

14 directly to changes in public policy. Based on information unearthed by the Church Committee, the

15 American public moved their representatives to overhaul domestic intelligence collection and put firm

16 limits on the NSA through the enactment of the Foreign Intelligence Surveillance Act (“FISA”) in 1978.

17

Now, after eighteen months of new revelations published in some of the nation’s largest

18 newspapers, the public is currently engaged in the most robust and important debate about government

19 surveillance in the United States since the Church Committee. Yet the government is stifling that debate,

20 attempting to silence key voices—voices uniquely positioned to comment on and offer an informed

21 perspective on the issue—in violation of the First Amendment. By refusing to allow technology

22 companies used by millions of Americans, like Google, Facebook, and Twitter, to speak truthfully about

23 the number and scope of national-security–surveillance requests they receive, the government has muted

24 democratic debate on a matter of central importance to how Americans live their lives and exercise their

25 constitutional rights. While the public is searching for an honest conversation about government

26

27 * The Freedom of the Press Foundation wishes to thank N.Y.U. Technology Law & Policy Clinic

28

students Megan Briskman, Matthew W. Callahan, Megan Graham, and Rafael Reyneri for their invaluable contributions to this brief.

1
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1 surveillance, the government is actively seeking to suppress that discussion and to limit access to

2 knowledge that would create a more robust and informed debate.

3

Because of the uniquely dual role that technology companies play with respect to government

4 surveillance—at once custodians of Americans’ private data and recipients of government requests for

5 that data—these companies have a critical perspective on the issue. Under the First Amendment, they are

6 entitled to share it. For the reasons explained below, the government’s restrictions on these technology

7 companies are unconstitutional content-based regulations of speech and impose an unlawful prior

8 restraint.

9

ARGUMENT

10 I. 11 12 13

TRANSPARENCY REPORTING BY TECHNOLOGY COMPANIES ABOUT GOVERNMENT SURVEILLANCE ON U.S. NETWORKS IS OF PROFOUND IMPORTANCE TO THE AMERICAN PUBLIC AND ONGOING DEMOCRATIC DEBATE.
A. The American public is currently engaged in a robust democratic debate concerning the proper role, scope, and limits of government surveillance.

14

Since June 2013, a series of news reports and government disclosures has revealed to the

15 American public the widespread nature of government surveillance programs and their intrusion into

16 Americans’ personal and private communications. Americans were shocked to discover the

17 government’s expansive (and still ongoing) bulk collection of telephony metadata, or phone records,

18 from millions of Americans—an operation that was unprecedented in its scope and implicated virtually

19 all Americans, yet remained secret for nearly twelve years. See Glenn Greenwald, NSA Collecting Phone

20 Records of Millions of Verizon Customers Daily, Guardian, June 6, 2013, http://gu.com/p/3gc62. Further,

21 under a government surveillance program called PRISM, online users’ search history, file transfers,

22 emails, photographs, documents, and live chat feeds are collected from major Internet providers if the

23 users communicate with executive-branch–designated “targets”—potentially anyone “reasonably

24 believed” to be a non-American outside of the United States. See Glenn Greenwald & Ewen MacAskill,

25 NSA Prism Program Taps in to User Data of Apple, Google and Others, Guardian, June 7, 2013,

26 http://gu.com/p/3gd58; see also Ewen MacAskill & Gabriel Dance, NSA Files: Decoded–What the

27 Revelations Mean for You, Guardian, Nov. 1, 2013, http://gu.com/p/3k3ve; Barton Gellman et al., In

28 NSA-Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are, Wash. Post, July 5,
2
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1 2014, http://wapo.st/1xyyGZF (“The daily lives of more than 10,000 account holders who were not

2 targeted are catalogued and recorded nevertheless.”). And under a related program called UPSTREAM,

3 the government is “searching the contents of vast amounts of Americans’ e-mail and text

4 communications into and out of the country, hunting for people who mention information about

5 foreigners under surveillance.” Charlie Savage, N.S.A. Said to Search Content of Messages to and From

6 U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1L6Quji. Thus, even Americans who are not government

7 targets themselves may still have the full contents of their communications swept up by the government.

8 Under these programs, the government collects and retains extremely personal and sensitive

9 information—including accounts of affairs, illness, and financial struggles, as well as a range of personal

10 photographs from baby pictures to seductive photos—without permission from or even notice to the

11 affected individuals. See Gellman et al., supra.

12

Each of these programs raises serious questions about whether the government is abiding by laws

13 passed by Congress and the Fourth Amendment’s protection from unwarranted searches and seizures as

14 well as broader privacy values shared by the public. Furthermore, the near-blanket official secrecy

15 surrounding the surveillance programs has sheltered the government from public scrutiny and is

16 antithetical to the values underlying the First Amendment’s guarantee of robust, truthful, and unhindered

17 political debate. As the Founders recognized again and again, free speech and open debate are critical to

18 a functioning democracy. See Benjamin Franklin, On Freedom of Speech and the Press, Penn. Gazette,

19 Nov. 17, 1737 (“Freedom of speech is a principal pillar of a free government; when this support is taken

20 away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and

21 limited monarchies derive their strength and vigor from a popular examination into the action of the

22 magistrates.”); see also Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James

23 Madison 103 (G. Hunt ed. 1910) (“A popular Government, without popular information, or the means of

24 acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”).

25

Eighteen months after the still-developing surveillance disclosures began, the scope of

26 Americans’ personal privacy rights is unquestionably remains a source of ongoing democratic discourse

27 and intense legislative debates over surveillance reforms. The initial revelations led to a sea change in the

28
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1 public’s opinion on the importance of online privacy,1 multiple major lawsuits calling for more 2 transparency and arguing constitutional violations,2 and the introduction of more than a dozen bills in 3 Congress that would increase the privacy rights of Americans.3 In direct response to the revelations, the

4 Obama Administration appointed a special review group to evaluate many aspects of government

5 surveillance, resulting in an important report that was highly critical of many government surveillance 6 operations and called for reforms.4 In addition, the Privacy and Civil Liberties Oversight Board held a

7 series of hearings, culminating in a comprehensive unclassified report on the government’s expansive

8 collection of telephone records of millions of Americans under Section 215 of the Patriot Act that aimed

9 to enable “the public and the Congress [to] have a long overdue debate about the privacy issues raised” 10 by the Snowden disclosures.5 The legislative debate over surveillance reform has largely centered on the

11 USA Freedom Act, a bill that would reform the government’s ability to conduct Internet and phone 12 surveillance and establish rules governing transparency and reporting to the public and to Congress.6

13

14

1 See Glenn Greenwald, Major Opinion Shifts, in the US and Congress, on NSA Surveillance and Privacy, Guardian, July 23, 2013, http://gu.com/p/3hjef.

15 2 See Kara Brandeisky, NSA Surveillance Lawsuit Tracker, ProPublica, July 10, 2013 (last updated Feb.

27, 2014), http://projects.propublica.org/graphics/surveillance-suits.

16 3 See Michelle Richardson & Robyn Greene, NSA Legislation Since the Leaks Began, ACLU Blog of

17

Rights (Aug. 15, 2013, 10:48 A.M.), https://www.aclu.org/blog/national-security/nsa-legislation-leaksbegan.

18 4 See President’s Review Grp. on Intelligence & Commc’ns Techs., Liberty and Security in a Changing

World: Report and Recommendations (2014), http://1.usa.gov/1cBct0k; see also Ellen Nakashima &

19 Ashkan Soltani, NSA Shouldn’t Keep Phone Database, Review Board Recommends, Wash. Post, Dec. 18,

2013, http://wapo.st/1eoK98i.

20 5 See Privacy & Civil Liberties Oversight Bd., Report on the Telephone Records Program Conducted

21

Under Section 215 of the USA Patriot Act and on the Operations of the Foreign Intelligence Surveillance Court 1 (2014), http://www.pclob.gov/library/215-Report_on_the_Telephone_Records_Program.pdf; see

22

also Privacy & Civil Liberties Oversight Bd., Recommendations Assessment Report 4 (2015), http://www.pclob.gov/library/Recommendations_Assessment-Report.pdf (noting that the Obama

23

Administration failed to end the bulk telephone records program that the PCLOB recommended over a year ago, despite having the authority to do so without congressional action); Privacy & Civil Liberties

24

Oversight Bd., Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (2014), http://www.pclob.gov/library/702-Report.pdf.

25 6 This debate began almost immediately after the Snowden disclosures began in June 2013, and it has increased in intensity over the past year. See Uniting and Strengthening America by Fulfilling Rights and
26 Ending Eavesdropping, Dragnet-collection and Online Monitoring Act (USA Freedom Act), H.R. 3361, 113th Cong. (2014); see also Tom Risen, Obama Weighs NSA Options as Deadline Nears, U.S. News &
27 World Rep., Jan. 26, 2015, http://t.usnews.com/Z677e3 (stating that the bill is likely to be reintroduced in the coming months); Adi Roberston & Nathan Ingraham, USA Freedom Act for NSA Reform is Voted
28 Down in the Senate, The Verge (Nov. 18, 2014, 8:29 PM), http://theverge.com/e/7006008 (explaining the bill failed to pass the Senate’s sixty-vote cloture rule by only two votes); Ellen Nakashima & Andrea 4

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1 While that bill stalled in the Senate in the last session of Congress, the legislative debate over the NSA’s

2 surveillance programs is far from over: without legislative action re-authorizing the government’s

3 surveillance programs, Section 215—the law that the Foreign Intelligence Surveillance Court (“FISC”)

4 has held authorizes the government to collect phone data from virtually all Americans—will expire on

5 June 1, 2015. See Spencer Ackerman, Failure to Pass US Surveillance Reform Bill Could Still Curtail

6 NSA Powers, Guardian, Oct. 3, 2014, http://gu.com/p/42669. As a result, both the executive branch and

7 Congress continue to debate legislative measures centered on surveillance reform. See, e.g., Office of the

8 Dir. of Nat’l Intelligence, ODNI General Counsel Robert Litt Speaks on Intelligence Surveillance Reform

9 at the Brookings Institute, IC on the Record (Feb. 4, 2015), http://icontherecord.tumblr.com/post/

10 110099240063/video-odni-general-counsel-robert-litt-speaks-on; Risen, supra note 6.

11

The government has attempted to shape the debate in many ways. The NSA itself has been an

12 active participant in the public discussion, with agency officials appearing before Congress, establishing

13 a public-facing platform to house declassified documents and public communications from the agency,

14 and issuing various reports discussing some of the general rules surrounding the agency’s signals

15 intelligence activities. See Office of the Dir. of Nat’l Intelligence, Declassified, IC on the Record,

16 http://icontherecord.tumblr.com/tagged/declassified; Office of the Dir. of Nat’l Intelligence, Signals

17 Intelligence Reform 2015 Anniversary Report, IC on the Record (2015),

18 http://icontherecord.tumblr.com/ppd-28/2015/overview. Yet the release of information by the

19 government has been decidedly one-sided in its point of view, creating a deliberately opaque and

20 misleading picture of how Americans are affected by government surveillance. Many details about the

21 true scale of the government surveillance remain secret, and the government is actively seeking to

22 prevent technology companies from explaining these important details to the public.

23

24

25

26

27 Peterson, House Votes to Curb NSA ‘Backdoor’ U.S. Data Searches, Wash. Post, June 20, 2014,

28

http://wapo.st/1jEkcPa (discussing passage of a House bill to curb NSA’s ability to conduct warrantless searches of databases for Americans’ communications records).

5

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1

B. Technology companies must be key participants in the ongoing debate about

government surveillance in the United States in order to ensure that the public is

2

adequately informed.

3

Because of their dual roles as custodians of the private data of the American public and as

4 necessary actors in the execution of many government surveillance requests, American technology

5 companies have a critical role to play in informing the public about government surveillance practices.

6 Technology companies are gatekeepers of their users’ personal information, putting them in the best

7 position to offer an educated perspective on the government’s activities. See Pl.’s Opp’n to Partial Mot.

8 to Dismiss 20. Without information from providers, the secrecy provisions of FISA, the FISA

9 Amendments Act, and national-security letters (“NSLs”) make it nearly impossible for the American

10 public to learn from independent parties about the scope and scale of government surveillance. Although

11 many technology companies want to share information with the public, they are often prevented from

12 communicating this information. Many of the government’s individual requests contain gag orders that

13 not only block disclosure to the target or targets of the surveillance, but also prevent the companies from

14 telling the public that they received any surveillance request at all. See, e.g., 18 U.S.C. § 2709(c). To be

15 sure, secrecy over individual process is necessary to the operation of foreign-intelligence surveillance.

16 But because providers interact with the government over the long term, they can offer the public a well-

17 informed perspective on the aggregate scope and uses of government surveillance without endangering

18 individual investigations. Moreover, companies that observe government surveillance requests over time

19 are better situated to comment on trends concerning the breadth and character of those requests than any

20 party other than the government, meaning they can offer compelling responses to government narratives.

21 Compare Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data from Nine U.S.

22 Internet Companies in Broad Secret Program, Wash. Post, June 7, 2013, http://wapo.st/1888aNq

23 (quoting government documents as saying the government can collect data “directly from the servers of

24 these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube,

25 Apple”), with Larry Page, What the . . .?, Google Official Blog (June 7, 2013),

26 http://googleblog.blogspot.com/2013/06/what.html (stating that Google has “not joined any program that

27 would give the U.S. government—or any other government—direct access to [their] servers”). Thus,

28 companies can illuminate the public debate by contributing a meaningful and accurate picture of such
6
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1 surveillance, empowering members of the public to make their own informed decisions about which

2 services they wish to use and how to engage effectively in public discourse concerning potential reforms

3 of government surveillance programs.

4

Many companies have sought to fill the public-information gap by issuing “transparency reports”

5 that contain aggregate information concerning government requests. Knowing how important

6 government surveillance has become to the public, companies have invested in transparency reports as a 7 way to build the trust of their users and to demonstrate that they take consumers’ privacy seriously.7 The

8 importance that the public has placed on these transparency reports is reflected in the increasing

9 resources companies are pouring into their reports: Where transparency reports were once a rarity from

10 tech companies, since the revelations started eighteen months ago, virtually every major company has

11 publicly committed to releasing transparency reports every six months. Companies now dedicate their

12 own blog sites to reflect on the data that include easy-to-understand charts and interactive features, and

13 are actively competing with each other to provide users with as complete picture as possible concerning 14 how they handle government requests.8

15

The public has received these new efforts at transparency with great enthusiasm. See Rainey

16 Reitman, 7 Things to Love About reddit’s First Transparency Report, Electronic Frontier Found.

17 DeepLinks Blog (Feb. 2, 2015), https://www.eff.org/deeplinks/2015/02/7-things-love-about-reddits-first-

18

19 7 See, e.g., Yahoo, Users First, in Yahoo Transparency Report, https://transparency.yahoo.com/usersfirst/index.htm (“Our users place their trust in us and, we take seriously their privacy and our role in
20 promoting freedom of expression. Our commitment to and concern for your privacy, security, and freedom are demonstrated in our users first approach to government activities.”); AT&T, Inc.,
21 Transparency Report for 2013, at 2 (2014), http://soc.att.com/1xwzU57 (“Interest in this topic has increased in the last year. . . . We’re committed to providing you with as much transparency and accuracy
22 in this reporting as is possible.”); Richard Salgado, Shedding Some Light on Foreign Intelligence Surveillance Act (FISA) Requests, Google Official Blog (Feb. 3, 2014),
23 http://googleblog.blogspot.com/2014/02/shedding-some-light-on-foreign.html (“[W]e still believe more transparency is needed so everyone can better understand how surveillance laws work and decide
24 whether or not they serve the public interest.”).

25

8 See Trevor Callaghan, Transparency Report: New Numbers and a New Look for Government Requests, Google (Dec. 22, 2014), http://googlepublicpolicy.blogspot.com/2014/12/transparency-report-new-

26

numbers-and-new.html (explaining that Google invested in its transparency report by hiring a digital company to improve the interactive quality of the report to make the information more meaningful to its

27

users); Twitter, Twitter Transparency Report: Information Requests from January to June 2014 (2015), https://transparency.twitter.com/information-requests/2014/jan-jun (dedicating a third of the website to

28

Twitter’s policy for responding to government requests with charts breaking down the location of user’s who have been targeted by the government).

7

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1 transparency-report; Levi Sumagaysay, EFF ‘Who Has Your Back’ Report Standouts, for Better or

2 Worse: Apple, Yahoo, Amazon, Snapchat (May 16, 2014, 11:27 AM), http://www.siliconbeat.com/

3 2014/05/16/eff-who-has-your-back-report-standouts-for-better-or-worse-apple-yahoo-amazon-snapchat.

4 Moreover, in response to the increasing popularity of transparency reports, various collaborative efforts

5 have emerged to help consumers track how various companies treat consumers data, respond to law-

6 enforcement requests, and monitor a company’s transparency report for any meaningful changes. See,

7 e.g., Taier Perlman & Peter Micek, Disclose All the Things! Access Launches Transparency Reporting

8 Index, AccessNow (Nov. 19, 2014, 1:37 PM), https://www.accessnow.org/blog/2014/11/19/disclose-all-

9 the-things-access-launches-transparency-reporting-index; Electronic Frontier Found., Who Has Your

10 Back?, https://www.eff.org/who-has-your-back-2014. The mere existence of these types of projects

11 illustrates the public’s demonstrated interest in more—and more accurate—information about

12 government surveillance on the networks of American technology companies.

13

Yet these transparency reports all contain a gaping hole: companies are not allowed to fully

14 inform their users about national-security–surveillance requests, despite that the fact that the concern

15 over national-security surveillance is what sparked the public’s interest in transparency reports in the first

16 place. The result is a skewed public picture that allows the government to hide the full scope of its

17 activities at the same time the national debate over surveillance is taking place.

18

C. The government has consistently frustrated technology companies’ efforts to join

19

and participate in the ongoing public debate.

20

The government’s regulation of the information that technology companies can share with the

21 public has significantly handicapped the terms of the public debate. Beginning in June 2013, in response

22 to ambiguities in news reporting on various NSA surveillance efforts, technology companies sought to

23 set the public record straight regarding the nature and frequency of the information about—and of—their

24 users that they provide to the government. See Cecilia Kang, U.S. Sought Data, Tech Firms Say, Wash.

25 Post, June 14, 2013, http://wapo.st/145Tb0k (quoting Facebook general counsel Ted Ullyot as writing,

26 “In light of continued confusion and inaccurate reporting related to [government surveillance], we’ve

27 advocated for the ability to say even more”). As part of these efforts, on June 18, 2013, Google filed suit

28 in the FISC for a declaratory judgment that it could publish new information on law enforcement process
8
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1 in its transparency report. See Mot. for Declaratory J. of Google Inc.’s First Amendment Right to Publish

2 Aggregate Information About FISA Orders 1 (FISC June 18, 2013), http://1.usa.gov/172ZBFb (“Google

3 FISC Mot.”). Historically, the government refused to allow companies to break down the number of

4 FISA government requests that they received as a category distinct from other law-enforcement process.

5 See Kang, supra. In the FISC, Google argued that their “reputation and business has been harmed” by

6 misleading reports of collusion with the government. Google FISC Mot. 3. Ultimately, Microsoft,

7 Yahoo, Facebook, and LinkedIn filed similar lawsuits in the FISC, leading to a consolidated action that,

8 six months later, resulted in a private settlement of the pending actions. See Letter from Deputy Att’y

9 Gen. James M. Cole to General Counsels (Jan. 27, 2014) (“DAG Letter”), http://1.usa.gov/1IuJYqL.

10 Under a framework established by the DAG Letter, technology companies can report the numbers of

11 NSLs, several forms of FISA requests, and customer accounts affected by the requests as separate

12 categories only in bands of one thousand, starting with 0–999. See id. at 2. In addition, providers are

13 barred from publishing information on a “new capability order” (i.e., the first order of a given type that a

14 provider receives) for two years after its receipt. Id. at 3. As an alternative, the DAG Letter allows

15 companies to report two lump sums in bands of 250 requests, starting with 0–249: the total of all forms

16 of national-security process, and the total number of user accounts affected. Id.

17

While the DAG Letter resulted from the settlement of private lawsuits, the government has

18 indicated that the reporting framework it established applies to all “similarly situated” technology

19 companies. Compl. ¶ 29. Troublingly, the government has taken the position that even companies—

20 including Twitter—that have received zero of a certain type of national-security process may not publicly

21 reveal that fact, even though they would be under no existing secrecy obligations attendant to individual

22 processes and were not parties to the FISC suit. See Compl. ¶ 5; Pl.’s Opp’n to Partial Mot. to Dismiss 2.

23 And many companies have publicly maintained that the bands arrived at in the DAG Letter are too wide

24 to convey meaningful information to the public. See Salgado, supra note 5 (“Publishing these numbers is

25 a step in the right direction. . . . But we still believe more transparency is needed so everyone can better

26 understand how surveillance laws work and decide whether or not they serve the public interest.”); Brad

27 Smith, Unfinished Business on Government Surveillance Reform (June 4, 2014),

28 http://blogs.microsoft.com/on-the-issues/2014/06/04/unfinished-business-on-government-surveillance-
9
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1 reform (“It was a good step, but we believe even more detail can be provided without undermining

2 national security.”). When companies have attempted to report number of national-security requests they

3 have received outside the parameters of the DAG Letter, the government has continued, in at least some

4 instances, to stifle their ability to join the public debate on the topic. See, e.g., Compl. ¶ 3. By preventing

5 companies from communicating with their customers about the prevalence of government surveillance

6 over a company’s data in a meaningful way, the government continues to manipulate the public narrative

7 and frustrate companies’ efforts to engage in public discourse.

8 II. 9 10

THE GOVERNMENT’S CONTENT-BASED RESTRICTIONS ON TWITTER’S SPEECH ON MATTERS OF CORE PUBLIC CONCERN FAIL STRICT SCRUTINY.
A. The proper role, scope, and limits of government surveillance are matters of core public concern.

11

One of the foundational, animating purposes of the First Amendment is to ensure that the public

12 is well informed about the functioning of its government. See, e.g., Mills v. Alabama, 384 U.S. 214, 218

13 (1966) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to

14 protect the free discussion of governmental affairs.”); see also, e.g., Gentile v. State Bar of Nev., 501 U.S.

15 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at

16 the very center of the First Amendment.”). As a result, the judicial branch has zealously guarded the right

17 of the people to gather and hear truthful information about matters of core public concern. See, e.g.,

18 Thornhill v. Alabama, 310 U.S. 88, 101–02 (1940) (“The freedom of speech and of the press guaranteed

19 by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public

20 concern without previous restraint or fear of subsequent punishment.”). Given the expansive scope and

21 invasive nature of government surveillance programs that implicate the privacy rights of virtually all

22 Americans, information pertaining to government surveillance naturally qualifies as a matter of profound

23 importance to the public and warrants protection under the First Amendment. See, e.g., Connick v.

24 Myers, 461 U.S. 138, 145 (1983) (“‘[S]peech concerning public affairs is more than self-expression; it is

25 the essence of self-government.’” (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)));

26 McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (explaining that allowing the public “to

27 make informed decisions about the operation of their government merits the highest degree of first

28 amendment protection”).
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1

B. The government’s restrictions on sharing information about national-security

process with the public are content-based.

2

3

In this case, Twitter has alleged unlawful government restrictions on its speech of several stripes,

4 all of which flow from the “terms of government-approved speech” contained in the DAG Letter. Pl.’s

5 Opp’n to Partial Mot. to Dismiss 1. First, the transparency-reporting bands mandated by the DAG Letter

6 prohibit “Twitter’s ability to say ‘zero,’ that is, to truthfully deny receipt of any national security legal

7 process, or specific kinds of national security legal process.” Id. (This is the “zero” rule.) Second, the

8 reporting bands are so large as to impede meaningful, truthful speech about the scale of government

9 surveillance requests. (This is the “bands” rule.) And third, the government has taken the position that

10 “similarly situated” companies, including Twitter, must pre-clear transparency reports that do not comply

11 with the rules set out in the DAG Letter with the government before speaking publicly about national-

12 security process the companies (do or do not) receive. See id. at 17. (This is the “clearance” rule.) All of

13 these restrictions are content-based and therefore subject to strict scrutiny.

14

Under the First Amendment, “[a]s a general matter, [the] government has no power to restrict

15 expression because of its message, its ideas, its subject matter, or its content.” Brown v. Entm’t Merchs.

16 Ass’n, 131 S. Ct. 2729, 2733 (2011) (ellipsis omitted) (quoting Ashcroft v. Am. Civil Liberties Union, 535

17 U.S. 564, 573 (2002)). Once it is determined that a restriction is content-based, it must survive strict

18 scrutiny. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014); Pleasant Grove City v. Summum,

19 555 U.S. 460, 469 (2009) (“[A]ny restriction based on the content of the speech must satisfy strict

20 scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government

21 interest . . . .”). Moreover, a content-based regulation is “presumptively invalid” under the First

22 Amendment, and it can only be saved if the government can show that its regulation is the “least

23 restrictive means of furthering a compelling government interest.” Am. Civil Liberties Union of Nev. v.

24 City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

25

The Supreme Court has explained that a court’s “principal inquiry in determining content

26 neutrality . . . is whether the government has adopted a regulation of speech because of disagreement

27 with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation omitted);

28 accord Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 (1994). The “threshold consideration” is
11
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1 thus “the government’s purpose” in regulating the speech. Madsen, 512 U.S. at 763. A restriction on

2 speech is “content based if it require[s] enforcement authorities to examine the content of the message

3 that is conveyed to determine whether a violation has occurred.” McCullen, 134 S. Ct. at 2531 (quotation

4 marks omitted) (quoting FCC v. League of Women Voters, 468 U.S. 364, 383 (1984)); see City of Renton

5 v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986).

6

Because all of the government’s restrictions on Twitter are based on what Twitter’s transparency

7 report says, the restrictions are patently content-based. See Doe, Inc. v. Mukasey, 549 F.3d 861, 877 (2d

8 Cir. 2008) (acknowledging that while gag orders associated with NSLs are not “typical content-based

9 restriction[s],” they are content-based nonetheless). The government’s rules over service-provider speech

10 at issue here are specifically aimed at speakers looking to reveal a specific type of information—truthful,

11 aggregate information about government surveillance requests. In other words, the government’s

12 restrictions burden speech “because of disagreement with the message it conveys,” Ward, 491 U.S. at

13 791 (citation omitted), and they are therefore classic content-based restrictions. See Geoffrey R. Stone,

14 Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 47 (1987) (“Content-based restrictions limit

15 communication because of the message it conveys. Laws that prohibit seditious libel, ban the publication

16 of confidential information, forbid the hiring of teachers who advocate violent overthrow of the

17 government, or outlaw the display of the swastika in certain neighborhoods are examples of content-

18 based restrictions.” (emphasis added)). Because the information that Twitter may share under the

19 government’s rules “depend[s] on whether [it] depict[s]” specified information, United States v. Stevens,

20 559 U.S. 460, 468 (2010)—i.e., “zero” requests or narrower bands than approved by the DAG Letter—

21 the government’s restrictions operate as content-based restrictions on Twitter’s speech.

22

C. The government’s restrictions on speech are not narrowly tailored to serve a

23

compelling interest.

24

The restraints placed by the government on Twitter’s ability to speak can only be deemed

25 constitutional if they survive strict scrutiny, which requires that they be narrowly tailored to serve a

26 compelling government interest. United States v. Playboy, 529 US 803, 813 (2000). The government

27 cannot meet this burden here.

28
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1

While national security in general, and the protection of national-security information, are

2 admittedly compelling interests, none of the government restrictions at issue in this case are narrowly

3 tailored to those interests. As a result, those restrictions needlessly and unconstitutionally inhibit

4 transparency and prohibit the public from hearing speech—the reporting of “zero” or more meaningful

5 reporting bands—that is uniquely relevant to a roiling public debate.

6

First, the government’s restrictions on aggregate reporting are not narrowly tailored to an interest

7 in protecting specific national-security investigations. At least in theory, the nondisclosure obligations

8 imposed by NSLs and FISA orders serve a more concrete interest—to avoid prematurely alerting a

9 surveillance target that his communications have been searched and thereby thwart an actual (and often

10 covert) investigation. See, e.g., 50 U.S.C. § 1805(c)(2)(B) (requiring recipients of FISA orders to provide

11 the government with “all information, facilities, or technical assistance necessary to accomplish the

12 electronic surveillance in such a manner as will protect its secrecy” (emphasis added)). But the release of

13 purely historical, aggregate information about government surveillance requests (the “bands” rule)—

14 including, and especially, historical information about the absence of particular types of government

15 surveillance requests (the “zero” rule)—does not pose any threat to that government interest.

16

Second, the government’s restrictions are not narrowly tailored to its more general interest in

17 conducting lawful electronic surveillance with the cooperation of communications providers. There is

18 nothing unique about any U.S.-based technology company that places it beyond the reach of the U.S.

19 government’s legitimate and lawful legal process—and this fact is not a state secret. Like other providers,

20 Twitter has an interest in complying with legitimate national-security–related requests for information.

21 See Pl.’s Opp’n to Partial Mot. to Dismiss 26. If a particular provider has not yet received a certain kind

22 of surveillance request, that circumstance is either a mere coincidence or the result of the fact that its

23 platform is not conducive to private communications of the sort presumably necessary for coordinating

24 criminal acts. See Compl. ¶ 7 (explaining how “Tweets” are public by default and broadcast to the entire

25 world).

26

The government has nowhere explained—and it cannot explain—why more detailed reporting

27 bands than those allowed in the DAG Letter (under the “bands” rule) would in any way jeopardize its

28 interest in issuing national-security process to communications providers and receiving their cooperation.

13
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1 The government must not only make such a showing, it must show that the restrictions in the DAG Letter

2 are the “least restrictive means” of protecting national-security information. See Am. Civil Liberties

3 Union of Nev., 466 F.3d at 792 (quoting S.O.C., Inc. v. Cnty. of Clark, 152 F.3d 1136, 1145 (9th Cir.

4 1998)). Here, the government’s choice to require bands of 1000 is entirely untethered to a justification

5 explaining its relevance, importance, or logic. Certainly, the government has not anywhere made a public

6 case—let alone a compelling one—that bands of 1000 constitute the “least restrictive means” of

7 protecting national-security information. Almost uniformly, technology companies—even those that have

8 signed the DAG Letter—believe that more transparency is required in this debate. See Salgado, supra

9 note 7 (“Publishing these numbers is a step in the right direction. . . . But we still believe more

10 transparency is needed so everyone can better understand how surveillance laws work and decide

11 whether or not they serve the public interest.”); Smith, supra (“It was a good step, but we believe even

12 more detail can be provided without undermining national security.”).

13

Nor has the government explained why public discussion of the fact that in the past—as opposed

14 to at present, or in the future—a company has not received a particular type of request (the “zero” rule)

15 would incentivize or protect would-be criminals, or impede investigations of them, to the detriment of the

16 government’s general surveillance interest. There is no reason to believe that a provider’s transparency

17 report that includes “zero” will incentivize would-be criminals to use its services instead of another’s, to

18 evade future surveillance, or to otherwise interfere with the government’s ability to surveil the electronic

19 communications of national-security targets. Even those companies that have reported having received

20 zero of certain kinds of surveillance requests still comply with other kinds of government orders and 21 requests.9 See, e.g., reddit, reddit Transparency Report, 2014 (2015),

22 https://www.reddit.com/wiki/transparency/2014 (disclosing the fact that reddit has never received an

23 NSL while explaining how it complies with other U.S. legal process). Many service providers who have

24 chosen to report “zero” have, at the same time, explicitly made clear that they will dutifully comply with

25

26

27

28

9 Certain companies have published transparency reports including “zero” without submitting those reports to the government for approval.

14

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1 valid future legal orders requesting their users’ data or communications.10 All the “zero” rule

2 accomplishes is the stifling of legitimate provider efforts to participate in an ongoing public debate of

3 great importance. See Ellen Nakashima, Tech Firms Tussle with DOJ over the Right to Say ‘Zero’, Wash.

4 Post, Dec. 16, 2014, http://wapo.st/139Wus3.

5

D. The government’s clearance rule smacks of viewpoint discrimination, which is

6

always disfavored under the First Amendment.

7

The restrictions in the DAG Letter also point toward an intentional muzzling of a particular

8 viewpoint—that of the service providers who are seeking to join the public debate. By itself disclosing

9 select surveillance data and preventing service providers from doing the same, the government appears to

10 be attempting to enforce a monopoly over the distribution of information about the number of national-

11 security requests made and the processes by which they occur. The government should not be able to use

12 an overly broad category of national-security classification as a tool to pick and choose who is free to

13 discuss important public-policy issues, and thereby avoid public scrutiny. Such discrimination is always

14 disfavored under the First Amendment, and given its specter in this case, the Court should rigorously

15 apply its strict-scrutiny analysis to ensure that the government’s regulations are not motivated by a desire

16 to censor an opposing viewpoint.

17

The Supreme Court has cautioned that “[i]n the ordinary case it is all but dispositive to conclude

18 that a law is content-based and, in practice, viewpoint-discriminatory.” Sorrell v. IMS Health Inc., 131 S.

19 Ct. 2653, 2667 (2011). In this case, there is at least circumstantial evidence that the government is

20 seeking to exclude particular voices from the national conversation about the government’s surveillance

21 practices and the national-security requests made of private companies. See supra Part I.C.; cf., e.g.,

22 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (stating that the First Amendment is

23 “[p]remised on mistrust of governmental power” and that it is designed to “stand[] against attempts to

24 disfavor certain subjects or viewpoints” from participating in public discourse); First Nat’l Bank of Bos.

25

26 10 See, e.g., Pinterest.com, Our First Transparency Report (Mar. 3, 2014), http://blog.pinterest.com/

27

post/78882077135/our-first-transparency-report (“Every company that stores information . . . must respond to requests for that information. . . .”); Tumblr, Tumblr Transparency Report 2013 (2014),

28

https://secure.static.tumblr.com/ahtwo23/FWmn94n2t/transparencyreport2013_letter__5.pdf (detailing the processes it uses to comply with legal government requests for user information).

15

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1 v. Bellotti, 435 U.S. 765, 777 (1978) (stating that when speech is “indispensible to decisionmaking in a

2 democracy,” the “inherent worth of the speech in terms of its capacity for informing the public does not

3 depend upon the identity of its source”). And courts frequently look to the surrounding facts and context

4 of a government restriction on speech to determine if the restriction discriminates based on viewpoint.

5 See, e.g., Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1223–25 (9th Cir. 2003) (examining the

6 broader context of a regulation and determining that the policy of only allowing particular flags to be

7 flown on highway overpasses constituted viewpoint discrimination).

8

As discussed above, the DAG Letter instructs companies that they may not report the specific

9 number of a particular form of national-security process. See DAG Letter at 2–3. On the other hand, the

10 government issues a public annual report detailing the specific numbers of each form of process it

11 collectively serves on those same providers. See, e.g., Letter from Peter J. Kadzik, Principal Deputy Asst.

12 Att’y Gen. to Hon. Joseph R. Biden, President of U.S. Senate, at 1–2 (Apr. 30, 2014),

13 http://1.usa.gov/16Sw5ln (listing specific numbers of various forms of national-security process served in

14 previous year). By muzzling certain speakers who have specific insights and factual information into how

15 government surveillance operates, the government appears to be attempting to control the public debate

16 about the type and scale of national-security requests it hands out. See, e.g., Ewen MacAskill, NSA Paid

17 Millions to Cover Prism Compliance Costs for Tech Companies, Guardian, Aug. 23, 2013,

18 http://gu.com/p/3t92a (quoting Google as requesting the ability to publish more data so it could show that

19 its “compliance with American national security laws falls far short of the wild claims still being made in

20 the press today”); cf. Waters v. Churchill, 511 U.S. 661, 674 (1994) (stating that public employees often

21 have special knowledge about the functioning of government and that “public debate may gain much

22 from their informed opinions”); Wright v. FBI, Nos. 02–915, 03–226, 2006 WL 2587630, at *7 (D.D.C.

23 July 31, 2006) (emphasizing how views of “knowledgeable, informed, experienced ‘insiders’ are of

24 particular utility,” especially when they comment on issues, like the FBI’s counter-terrorism practices,

25 where there is a lack of open public discourse). This Court should be particularly skeptical of the

26 government’s restrictions on speech where they amount to enforcement of a one-sided debate. See, e.g.,

27 McCullen, 134 S. Ct. at 2533 (explaining that courts must pay special attention to First Amendment

28 concerns when selective regulation of speech “‘may represent a governmental attempt to give one side of
16
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1 a debatable public question an advantage in expressing its views to the people’” (quoting City of Ladue v.

2 Gilleo, 512 U.S. 43, 51 (1994))); Citizens United, 558 U.S. at 340 (“Speech restrictions based on the

3 identity of the speaker are all too often simply a means to control content.”).

4 III. 5

THE GOVERNMENT’S RESTRICTION ON THE PUBLICATION OF TWITTER’S TRANSPARENCY REPORT IS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON CORE POLITICAL SPEECH.

6

The Supreme Court has consistently held that prior restraints are not only strongly disfavored, but

7 are the “most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n

8 v. Stuart, 427 U.S. 539, 559 (1976). As the Court has explained, a prior restraint “has an immediate and

9 irreversible sanction,” and “[i]f it can be said that a threat of . . . sanctions after publication ‘chills’

10 speech, [a] prior restraint ‘freezes’ it at least for the time.” Id. As a result, “[a]ny prior restraint on

11 expression comes . . . with a heavy presumption against its constitutional validity.” Org. for a Better

12 Austin v. Keefe, 402 U.S. 415, 419 (1971) (quotation marks and citation omitted).

13

Here, a series of circumstances imposed by the government—principally, the “clearance” rule—

14 are operating as a prior restraint preventing Twitter from publishing its transparency report and from

15 presenting the information it wishes to communicate to the public. Because these restrictions prevent

16 Twitter from speaking in the first instance rather than imposing a penalty after engaging in its desired

17 speech, the restrictions amount to a prior restraint. See Alexander v. United States, 509 U.S. 544, 550

18 (1993). Prior restraints come in two main forms: direct prohibitions on or prior injunctions against

19 publication, and restrictions that act “in operation and effect like a licensing scheme . . . .” Smith v. Daily

20 Mail Pub. Co., 443 U.S. 97, 101 (1979) (quotation marks and citations omitted). This case concerns the 21 latter.11 The DAG Letter and the accompanying notice to the FISC purport to set the terms by which

22 companies can disclose the numbers of national-security requests they have received. See Notice, Compl.

23 Ex. 2, available at http://1.usa.gov/1aEx6hD (“It is the Government’s position that the terms outlined in

24 the [DAG Letter] define the limits of permissible reporting for the parties and other similarly situated

25 companies.”); DAG Letter, supra. The language in these documents operates as a prior restraint;

26

27

11 Amicus does not contend that the DAG Letter, in and of itself, acts as a prior restraint in general terms or with respect to members of the general public. Rather, it is that the DAG Letter, in conjunction with

28

the government’s actions and pronouncements concerning transparency reporting vis-à-vis Twitter and other “similarly situated” providers, operates as a prior restraint on those providers’ speech.

17

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1 companies that want to report information in a manner not outlined in the DAG Letter are forced to self-

2 censor to avoid potential criminal prosecution or to seek governmental approval before they publish

3 information, as Twitter did here. See Compl. ¶ 38 (explaining Twitter submitted its draft transparency

4 report to the government seeking “a determination as to exactly which, if any, parts of its transparency

5 report are classified or, in the Department’s view, otherwise may not lawfully be published online”).

6 When a company is forced—through a combination of its conversations with the government and an

7 objectively reasonable fear of prosecution for non-compliance—to obtain government sign-off before

8 publishing a document, it faces a prior restraint. See Smith, 443 U.S. at 101, 101–06 (holding that a

9 statute with a judicial “prior-approval requirement” before publication of certain information “acts in

10 operation and effect like a licensing scheme” and is an unlawful prior restraint); see also Compl. ¶¶ 29,

11 35, 36, 38 (describing the government’s portrayal of the DAG Letter and Notice in conversations with

12 Twitter, and Twitter’s submission of its draft transparency report for prior approval prior to ensure

13 compliance with the government’s pre-approved reporting scheme).

14

Twitter’s decision to seek approval—and other companies’ potential reluctance to publish

15 transparency reports that do not adhere to the government’s framework—is all the more reasonable in

16 light of the fact that the government has not specifically disavowed prosecuting Twitter for issuing a

17 transparency report that does not comply with the terms of the DAG Letter. Cf. Susan B. Anthony List v.

18 Driehaus, 134 S. Ct. 2334, 2345 (2014) (finding First Amendment claim justiciable when the “specter of

19 enforcement” led to a chill on speech). The “specter of enforcement” looms large in this case, creating a

20 situation in which the DAG Letter—compounded by the government’s actions after Twitter submitted its

21 report for government clearance—operates as a prior restraint on Twitter’s publication of truthful

22 information.

23

Of course, as with other constitutional protections, the ban on prior restraints is not absolute.

24 However, even in the national-security context, the government’s burden in order to sanction a prior

25 restraint is demanding. See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curium); see

26 id. at 732 n.2 (White, J., concurring) (denying injunction to prevent publication of Pentagon Papers,

27 despite Government’s claim that disclosure posed “grave and immediate danger” to national security).

28 Indeed, “every member of the Court in New York Times, tacitly or explicitly, accepted [the Court’s prior]
18
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1 condemnation[s] of prior restraint as presumptively unconstitutional,” regardless of the subject matter at

2 issue. Neb. Press Ass’n, 427 U.S. at 558 (quotation marks and citation omitted); see also CBS, Inc. v.

3 Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., sitting as circuit justice) (stating that prior restraints

4 have been allowed “only where the evil that would result from the reportage is both great and certain and

5 cannot be mitigated by less intrusive measures”). The government has not shown any such “great and

6 certain” risk to national security posed by the publication of aggregate numbers of national-security

7 requests a given company has historically received. See supra Part II.C.

8

Even to the extent that speech in the national-security context can be conditioned, based on

9 various statutory schemes, on governmental permission, the burden still lies with the government to show

10 that the First Amendment’s requirement of adequate procedural protections against “impermissible

11 censorship” has been met. Mukasey, 549 F.3d at 871 (citing Freedman v. Maryland, 380 U.S. 51, 58

12 (1965)); see id. (“[T]he burden of going to court to suppress speech and the burden of proof in court must

13 be placed on the government.” (citing Freedman, 380 U.S. at 58–59)). And the government has not met

14 this burden here.

15

CONCLUSION

16

Accordingly, the Court should deny Defendants’ partial motion to dismiss.

17

18 Dated: February 17, 2015
19 Brett Max Kaufman (Of Counsel) brettmaxkaufman@nyu.edu
20 TECHNOLOGY LAW & POLICY CLINIC NEW YORK UNIVERSITY SCHOOL OF LAW
21 245 Sullivan Street New York, New York 10012
22 Telephone: 212-998-6430 Facsimile: 212-995-4031
23
24

By:

/s/ Joseph C. Gratz

Joseph C. Gratz (SBN 240676)

jgratz@durietangri.com

DURIE TANGRI LLP

217 Leidesdorff Street

San Francisco, CA 94111

Telephone: 415-362-6666

Facsimile: 415-236-6300

Attorneys for Amicus Curiae Freedom of the Press Foundation

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CERTIFICATE OF SERVICE

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I certify that all counsel of record are being served on February 17, 2015, with a copy of this

3 document via the Court’s CM/ECF system.

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/s/ Joseph C. Gratz

Joseph C. Gratz 5

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1

JOYCE R. BRANDA Acting Assistant Attorney General

2 MELINDA HAAG United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director STEVEN Y. BRESSLER

5 JULIA A. BERMAN

Attorneys 6 United States Department of Justice

7 Civil Division, Federal Programs Branch

8 P.O. Box 883

Washington, D.C. 20044 9 Telephone: (202) 305-0167

10 Facsimile: (202) 616-8470 Email: Steven.Bressler@usdoj.gov

11

Attorneys for Defendants the Attorney General, et al. 12
IN THE UNITED STATES DISTRICT COURT 13
FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 __________________________________________

15 TWITTER, INC.,

)

)

Case No. 14-cv-4480

16

)

Plaintiff, 17

)

)

DEFENDANTS’ NOTICE

18

v.

)

OF MOTION AND PARTIAL

)

MOTION TO DISMISS

19 ERIC H. HOLDER, United States

)

Attorney General, et al., 20

)

Date: March 10, 2015

)

Time: 2:00 p.m.

21

Defendants.

)

___________________________________________)

22

Courtroom 1, Fourth Floor Hon. Yvonne Gonzalez Rogers

23

PLEASE TAKE NOTICE that, on March 10, 2015, at 2:00 p.m., before Judge

24 Yvonne Gonzalez Rogers, the defendants will move to dismiss several aspects of plaintiff’s

25 Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and the

26 Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., and for the reasons more fully set forth in

27 defendants’ accompany Memorandum of Points and Authorities. Specifically, defendants will

28 seek dismissal of: 1) plaintiff’s challenge to a January 2014 letter from the Deputy Attorney

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

1

Defendants’ Notice of Motion and Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page2 of 34

1 General of the United States (“DAG Letter”); 2) plaintiff’s Declaratory Judgment Act claims

2 related to the Foreign Intelligence Surveillance Act (“FISA”); and 3) plaintiff’s separation-of-

3 powers challenge to the statutory standards of review of a National Security Letter.

4 Dated: January 9, 2015 5
6

Respectfully submitted,
JOYCE R. BRANDA Acting Assistant Attorney General

7

MELINDA HAAG

8

United States Attorney

9

ANTHONY J. COPPOLINO

10

Deputy Branch Director

11

/s/ Steven Y. Bressler

STEVEN Y. BRESSLER

12

JULIA A. BERMAN

13

Attorneys

U.S. Department of Justice

14

Civil Division, Federal Programs Branch

P.O. Box 883

15

Washington, D.C. 20044

16

Steven.Bressler@usdoj.gov

17

Attorneys for Defendants

18

19

20

21

22

23

24

25

26

27

28

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

2

Defendants’ Notice of Motion and Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page3 of 34

1

JOYCE R. BRANDA Acting Assistant Attorney General

2 MELINDA HAAG United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director STEVEN Y. BRESSLER

5 JULIA A. BERMAN

Attorneys 6 United States Department of Justice

7 Civil Division, Federal Programs Branch

8 P.O. Box 883

Washington, D.C. 20044 9 Telephone: (202) 305-0167

10 Facsimile: (202) 616-8470 Email: Steven.Bressler@usdoj.gov

11

Attorneys for Defendants the Attorney General, et al. 12
IN THE UNITED STATES DISTRICT COURT 13
FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 __________________________________________

15 TWITTER, INC.,

)

)

Case No. 14-cv-4480

16

)

Plaintiff,

)

17

)

18

v.

)

)

DEFENDANTS’ PARTIAL

19 ERIC H. HOLDER, United States

)

MOTION TO DISMISS

Attorney General, et al.,

)

20

)

21

Defendants.

)

__________________________________________)

22

23

24

25

26

27

28

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480 Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page4 of 34

1

TABLE OF CONTENTS

2

PAGE

3 TABLE OF AUTHORITIES .......................................................................................................... ii
4 PRELIMINARY STATEMENT .....................................................................................................1 5
BACKGROUND .............................................................................................................................3 6 7 A. Statutory Background ..........................................................................................................3

8

1. FISA .........................................................................................................................4

9

2. National Security Letters .........................................................................................5

10 B. Factual Background .............................................................................................................6
11 STANDARD OF REVIEW .............................................................................................................9
12

13 ARGUMENT.................................................................................................................................10

14 I.
15
16
17
18
19 II.
20
21

The Court Should Dismiss Plaintiff’s Challenge to the DAG Letter for Lack of Subject Matter Jurisdiction .............................................................................10
A. The DAG Letter is Not “Final Agency Action” Subject to Review Under the Administrative Procedure Act .................................................10
B. Plaintiff Has Not Established Article III Standing for its Challenge to the DAG Letter .................................................................................12
FISA Nondisclosure Obligations Arise Through FISC Orders or Directives Issued Under a FISC-Approved Program, and Any Challenge Thereto Should Be Considered by the FISC......................................................................13

22 III. 23

Plaintiff’s Challenge to the National Security Letter Statutory Standard of Review Fails as a Matter of Law ...................................................................................20

24 CONCLUSION..............................................................................................................................24

25

26

27

28

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Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page5 of 34

1

TABLE OF AUTHORITIES

2 CASES

PAGE(S)

3

AT & T Co. v. EEOC, 4 270 F.3d 973 (D.C. Cir. 2001) ................................................................................................... 12

5 Acker v. EPA,
6 290 F.3d 892 (7th Cir. 2002) ..................................................................................................... 12

7 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 8 218 F. Supp. 2d 611 (F.I.S.C. 2002) .......................................................................................... 20

9 Allen v. Wright, 10 468 U.S. 737 (1984)................................................................................................................... 12

11 Am. States Ins. Co. v. Kearns,
15 F.3d 142 (9th Cir. 1994) ....................................................................................................... 15 12

13

Ass’n of Am. Med. Colls. v. United States, 217 F.3d 70, 778 (9th Cir. 2000) ................................................................................................. 9

14 Avila v. Willits Enviro. Remediation Trust,
15 633 F.3d 828 (9th Cir. 2011) ..................................................................................................... 20

16 Ariz. Cattle Growers' Ass'n v. United States Fish & Wildlife,
17 273 F.3d 1229 (9th Cir. 2001) ................................................................................................... 21

18 Balistreri v. Pacifica Police Dep't, 19 901 F.2d 696 (9th Cir. 1990) ....................................................................................................... 9

20 Bd. of Trustees of the State Univ. of NY v. Fox, 492 U.S. 469 (1989)................................................................................................................... 13
21

22 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)..................................................................................................................... 9
23

24

Bennett v. Spear, 520 U.S. 154 (1997)................................................................................................................... 11

25 Center for Nat'l Security Studies v. Dep't of Justice,
26 331 F.3d 918 (D.C. Cir. 2003) ............................................................................................. 21, 22

27 CIA v. Sims, 28 471 U.S. 159 (1985)................................................................................................................... 21

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Motion to Dismiss

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1

City of San Diego v. Whitman, 242 F.3d 1097 (9th Cir. 2001) ................................................................................................... 11

2 Clausell v. Turner,
3 295 F. Supp. 533 (S.D.N.Y. 1969)............................................................................................. 19

4 Ctr. for Auto Safety v. NHTSA, 5 452 F.3d 798 (D.C. Cir. 2006) ................................................................................................... 12

6 Delson Group, Inc. v. GSM Ass'n, 7 570 Fed. Appx. 690 (9th Cir. Apr. 21, 2014)............................................................................. 16

8 Dep't of Navy v. Egan, 484 U.S. 518 (1988)................................................................................................................... 21
9
10 Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ..................................................................................................... 22
11 Doe v. Mukasey,
12 549 F.3d 861 (2d Cir. 2008)................................................................................................... 6, 21
13 Dow Chem. v. EPA,
14 832 F.2d 319 (5th Cir. 1997) ..................................................................................................... 12

15 Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 16 543 F.3d 586 (9th Cir.2008) ...................................................................................................... 11

17 FCC v. Fox Television Stations, Inc., 18 556 U.S. 502 (2009)................................................................................................................... 23

19 FDIC v. Aaronian, 93 F.3d 636 (9th Cir. 1996) ................................................................................................. 15, 16
20

21

General Motors Corp. v. EPA, 363 F.3d 442 (D.C. Cir. 2004) ................................................................................................... 11

22
Get Outdoors II, LLC v. City of San Diego, 23 506 F.3d 886 (9th Cir. 2007) ..................................................................................................... 23

24 Gospel Missions of Am. v. City of L.A., 25 328 F.3d 548 (9th Cir. 2003) ..................................................................................................... 23

26 Gov't Employees Ins. Co. v. Dizol, 27 133 F.3d 1220 (9th Cir. 1998) ............................................................................................. 14, 15

28

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Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page7 of 34

1

Hernandez v. United States, No. CV 14-00146, 2014 U.S. Dist. LEXIS 116921 (C.D. Cal. Aug. 20, 2014)....................................................... 16

2 Ileto v. Glock, Inc.,
3 349 F.3d 1191 (9th Cir. 2003) ..................................................................................................... 9

4 Indep. Equip. Dealers Ass'n v. EPA, 5 372 F.3d 420 (D.C. Cir. 2004) ................................................................................................... 11

6 Johnson v. Lucent Techs., Inc., 7 653 F.3d 1000 (9th Cir. 2011) ..................................................................................................... 9

8 Jones v. United States, 526 U.S. 227 (1999)................................................................................................................... 23
9
10 Katzenbach v. McClung, 379 U.S. 294 (1964)................................................................................................................... 19
11 Lapin v. Shulton, Inc.,
12 333 F.2d 169 (9th Cir. 1964) .............................................................................................. passim
13 McGehee v. Casey,
14 718 F.2d 1137 (D.C. Cir. 1983) ................................................................................................. 21

15 Members of City Council of LA v. Taxpayers for Vincent, 16 466 U.S. 789 (1984)................................................................................................................... 14

17 In re Motion for Release of Court Records, 18 526 F. Supp. 2d 484 (F.I.S.C. 2007) .......................................................................................... 19

19 NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) ............................................................................................... 9, 15
20

21

In re National Security Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013), appeal docketed, No. 13-15957 (9th Cir.) ............ 22, 23

22
Nat'l Ass'n of Home Builders v. Norton, 23 415 F.3d 8 (D.C. Cir. 2005) ................................................................................................. 11, 12

24 Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 25 663 F.3d 470 (D.C .Cir. 2011) ................................................................................................... 12

26 New York v. Ferber, 27 484 U.S, 747 (1982)................................................................................................................... 14

28

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Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page8 of 34

1

ONRC Action v. BLM, 150 F.3d 1132 (9th Cir. 1998) ..................................................................................................... 9

2 Ord v. United States,
3 8 Fed. Appx. 852 (9th Cir. May 8, 2001) .................................................................................. 16

4 Oregon v. Legal Servs. Corp., 5 552 F.3d 965 (9th Cir. 2009) ....................................................................................................... 9

6 Principal Life Ins. Co. v. Robinson, 7 394 F.3d 665 (9th Cir. 2005) ............................................................................................... 10, 15

8 Public Affairs Assocs. v. Rickover, 369 U.S. 111 (1962)................................................................................................................... 15
9
10 In re Sealed Case, 310 F.3d 717 (F.I.S.C.R. 2002).................................................................................................. 20
11 Snepp v. United States,
12 444 U.S. 507 (1980)................................................................................................................... 13
13 St. Clair v. City of Chico,
14 880 F.2d 199 (9th Cir. 1989) ....................................................................................................... 9

15 Stillman v. CIA, 16 319 F.3d 546 (D.C. Cir. 2003) ................................................................................................... 13

17 Torquay Corp. v. Radio Corp. of Am., 18 2 F. Supp. 841 (S.D.N.Y. 1932)................................................................................................. 16

19 Treadaway v. Academy of Motion Picture Arts & Sciences, 783 F.2d 1418 (9th Cir. 1986) ............................................................................................. 15, 16
20

21

Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261 (9th Cir. 1990) ..................................................................................................... 10

22
United States v. Diaz, 23 491 F.3d 1074 (9th Cir. 2007) ................................................................................................. 22

24 United States v. Gorman, 25 314 F.3d 1105 (9th Cir. 2002) ................................................................................................... 22

26 Wash. Envt'l Council v. Bellon, 27 732 F.3d 1131 (9th Cir. 2013) ................................................................................................... 12

28

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Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page9 of 34

1

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)................................................................................................................... 14

2 Wilton v. Seven Falls Co.,
3 515 U.S. 277 (1995)......................................................................................................... 9, 14, 15

4 Zdorek v. V Secret Catalogue Inc., No. CV 01-4113, 5 2001 U.S. Dist. LEXIS 26120 (C.D. Cal. Aug. 1, 2001)........................................................... 16

6 Zucco Partners, LLC v. Digimarc Corp., 7 552 F.3d 981 (9th Cir. 2009) ....................................................................................................... 9

8 STATUTES
9

10

2 U.S.C. § 1407(d) ........................................................................................................................ 21 5 U.S.C. § 704............................................................................................................................... 10

11 5 U.S.C. § 706(2) .......................................................................................................................... 21

7 U.S.C. § 1508(3)(B)(iii)(II) ....................................................................................................... 21 12 12 U.S.C. § 203(b)(1) ................................................................................................................... 21

13

12 U.S.C. § 1817(j)(5) .................................................................................................................. 21 15 U.S.C. § 78l(k)(5) .................................................................................................................... 21

14 18 U.S.C. § 2709................................................................................................................... 5, 6, 23

18 U.S.C. § 3511.................................................................................................................... passim 15 28 U.S.C. § 2201(a) .................................................................................................................. 9, 14

16 28 U.S.C. § 2254........................................................................................................................... 19 28 U.S.C. § 2255........................................................................................................................... 19

17 50 U.S.C. § 1803(h) ...................................................................................................................... 19

50 U.S.C. § 1805................................................................................................................. 4, 16, 17 18 50 U.S.C. § 1824(c)(2).................................................................................................................. 16

19 50 U.S.C. § 1842(d)(2)(B) ........................................................................................................ 5, 17 50 U.S.C. § 1861(c) ............................................................................................................ 5, 18, 19

20 50 U.S.C. § 1881a ......................................................................................................... 4, 17, 18, 19

50 U.S.C. § 1881(g)(1)(B) ............................................................................................................ 17 21

22 EXECUTIVE ORDERS

23 Executive Order 13526 (Dec. 29, 2009) ..................................................................................... 7, 8 24 Executive Order 12333 (Dec. 4, 1981) ........................................................................................... 3
25 LEGISLATIVE MATERIALS

26 Exec. Order No. 12333 ................................................................................................................... 3 27 Executive Order 13526 ............................................................................................................... 7, 8

28

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Motion to Dismiss

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1 FEDERAL RULES OF CIVIL PROCEDURE 2 Fed. R. Civ. P. 12(b)(1)............................................................................................................. 9, 13
Fed. R. Civ. P. 12(b)(6)....................................................................................................... 9, 20, 24 3 4 MISCELLANEOUS 5 James B. Comey, Remarks at International Conference on Cyber Security,
Fordham University (January 7, 2015), ........................................................................................ 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

vii

Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page11 of 34

1

PRELIMINARY STATEMENT

2

Plaintiff Twitter, Inc., an electronic communication service provider, seeks a declaratory

3 judgment that alleged restrictions on its ability to publish information concerning national

4 security legal process it has received from the United States Government are unlawful.

5 Specifically, Twitter alleges that it seeks to publish a “Transparency Report” with certain data

6 about legal process it has received from the Government, including pursuant to the Foreign

7 Intelligence Surveillance Act (“FISA”) and National Security Letters (“NSLs”). Twitter claims

8 that certain alleged restrictions on publication imposed by statutory provisions, judicial orders,

9 Government directives, and nondisclosure agreements violate the First Amendment. It also

10 seeks to challenge under the Administrative Procedure Act (“APA”) guidance provided in a

11 January 2014 letter from the Deputy Attorney General of the United States (“DAG Letter”) to

12 certain electronic communication providers (not including Twitter) that described new and

13 additional ways that providers can publicly disclose properly declassified data concerning

14 requests for customer information without releasing classified information.

15

Contrary to plaintiff’s allegations, the United States Government firmly supports a policy

16 of appropriate transparency with respect to its intelligence activities. Indeed, the letter Twitter

17 purports to challenge is based on a determination by the Director of National Intelligence

18 (“DNI”) to declassify significant information in order to increase transparency by permitting

19 companies like Twitter to report to their users and to the public information about national

20 security legal process in a manner that mitigates harm to national security. But the Government

21 must balance the goal of providing information concerning national security investigations with

22 the need to maintain the secrecy of information that could reveal sensitive investigative

23 techniques and sources and methods of intelligence collection. The additional material that 24 Twitter seeks to publish is information that the Government has judged is properly protected 25 classified national security information, the disclosure of which would risk serious harm to 26 national security. The law is clear that the First Amendment does not permit such publication, 27 and any restrictions imposed by statutory authority or judicial order on the publication of

28

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page12 of 34

1 classified information are lawful under the First Amendment, both on their face and as they may

2 have been applied to Twitter.

3

Before the Court considers the merits of plaintiff’s constitutional claims, however, it

4 should dismiss several aspects of Twitter’s complaint on threshold grounds.

5

First as explained below, the Court should dismiss plaintiff’s claim that the DAG letter

6 violates the APA. The letter is permissive, advisory guidance; as such, it does not constitute

7 “final agency action” reviewable under the APA, nor does it restrict plaintiff’s speech in any

8 way. Rather, any such restrictions stem from other authority, including statutory law such as

9 FISA, applicable orders and directives issued through the Foreign Intelligence Surveillance

10 Court (“FISC”), and from any applicable nondisclosure agreements. Likewise, for those reasons,

11 the DAG Letter does not cause Twitter any injury-in-fact sufficient to confer standing, and any

12 alleged injury would not be redressable through relief directed against the DAG Letter.

13

Second, under settled principles of comity, the Court should dismiss plaintiff’s

14 Declaratory Judgment Act claims related to the FISA and any orders and directives issued

15 through the FISC. Specifically, the Court should dismiss plaintiff’s claims that any FISC orders

16 or FISA-related directives by their terms do not prevent the disclosure of aggregate data, and 17 claims that restrictions on disclosing FISA-related material would violate the First Amendment.1

18 Instead, this Court should defer to the FISC to determine the scope, meaning, and legality of its

19 own orders, as well as of the statute that is given effect through those orders.

20

Third, the Court should dismiss plaintiff’s separation-of-powers challenge to the statutory

21 standards of review of an NSL. Twitter, raising an issue currently under consideration in the

22 Ninth Circuit, alleges that the standard of review is too deferential, but its challenge fails as a

23 matter of law. The statutory standard of review for NSL nondisclosure requirements is 24 substantially the same as those that courts have developed in related contexts to review 25 government restrictions on the disclosure of national security information. Deference to the

26 27 1 Defendant’s discussion of FISA orders or directives that plaintiff could have received, and that
could require plaintiff not to disclose the existence of the orders or directives, is not intended to 28 confirm or deny that plaintiff has, in fact, received any such national security legal process.

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page13 of 34

1 Executive Branch is entirely appropriate in this context. As courts have repeatedly recognized,

2 the Executive Branch is best situated to assess the risks to national security posed by the

3 disclosure of sensitive information. Accordingly, the separation-of-powers doctrine does not

4 prevent Congress from prescribing the appropriate standard of review for assessing risks to

5 national security, even where that standard is deferential. Thus, if the Court does not await a

6 ruling by the Ninth Circuit, it should proceed to dismiss the claim because the NSL statutory

7 standard of review complies with the Constitution.

8

For these reasons, as set forth further below, the Court should dismiss plaintiff’s claims

9 challenging the DAG Letter, FISA itself, nondisclosure requirements issued or supervised by the

10 FISC, and the standard of review under the NSL statute.

11

BACKGROUND

12

A. Statutory Background

13

The President has charged the FBI with primary authority for conducting

14 counterintelligence and counterterrorism investigations in the United States. See Exec. Order

15 No. 12333 §§ 1.14(a), 3.4(a), 46 Fed. Reg. 59941 (Dec. 4, 1981). Today, the FBI is engaged in

16 extensive investigations into threats, conspiracies, and attempts to perpetrate terrorist acts and

17 foreign intelligence operations against the United States. These investigations are typically long-

18 range, forward-looking, and preventive in nature in order to anticipate and disrupt clandestine

19 intelligence activities or terrorist attacks on the United States before they occur.

20

The FBI’s experience with counterintelligence and counterterrorism investigations has

21 shown that electronic communications play a vital role in advancing terrorist and foreign

22 intelligence activities and operations. Accordingly, pursuing and disrupting terrorist plots and

23 foreign intelligence operations often require the FBI to seek information relating to the use of 24 electronic communications, including from electronic communication service providers. E.g., 25 James B. Comey, Remarks at International Conference on Cyber Security, Fordham University 26 (January 7, 2015), available at http://www.fbi.gov/news/speeches/addressing-the-cyber-security27 threat.

28

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page14 of 34

1

Congress has authorized the FBI to collect such information with a variety of legal tools,

2 including through various authorities under the FISA and pursuant to FISC supervision, as well

3 as National Security Letters. Because the targets of national security investigations and others

4 who seek to harm the United States will take countermeasures to avoid detection by the FBI and

5 other members of the U.S. Intelligence Community, secrecy is often essential to effective

6 counterterrorism and counterintelligence investigations. The Government therefore protects the

7 confidentiality of information concerning national security legal process, including pursuant to

8 statutory requirements and judicial orders.

9

1. FISA

10

Pursuant to multiple provisions of FISA, the FISC may issue orders that “direct”

11 recipients to provide certain information “in a manner that will protect the secrecy of the

12 acquisition.” E.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(h)(1)(A). For example, Titles I and VII of

13 FISA provide that FISA orders “shall direct,” and FISA directives issued by the Attorney

14 General and Director of National Intelligence (“DNI”) after FISC approval of an underlying

15 certification “may direct,” recipients to provide the Government with “all information, facilities,

16 or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of

17 the acquisition.” 50 U.S.C. § 1881a(h)(1)(A) (Title VII); see also 50 U.S.C. § 1805(c)(2)(B)

18 (similar language for Title I). Additionally, the orders “shall direct” and the directives “may

19 direct” that recipients “maintain under security procedures approved by the Attorney General and

20 the DNI any records concerning the acquisition or the aid furnished” that such electronic

21 communication service provider maintains. 50 U.S.C. § 1881a(h)(1)(B) (Title VII); see also 50

22 U.S.C. § 1805(c)(2)(C) (similar language for Title I). Consistent with the Executive Branch’s

23 authority to control classified information, these provisions explicitly provide for Executive

24 Branch approval of the companies’ procedures for maintaining all records associated with FISA

25 surveillance.

26

Other FISA titles that provide search or surveillance authorities also provide for secrecy

27 under those authorities. See 50 U.S.C. § 1824(c)(2)(B)-(C) (requiring Title III orders to require

28 the recipient to assist in the physical search “in such a manner as will protect its secrecy” and to

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page15 of 34

1 provide that “any records concerning the search or the aid furnished” that the recipient retains be

2 maintained under appropriate security procedures); 50 U.S.C. § 1842(d)(2)(B) (requiring Title IV

3 orders to direct that recipients “furnish any information, facilities, or technical assistance

4 necessary to accomplish the installation and operation of the pen register or trap and trace device

5 in such a manner as will protect its secrecy,” and to provide that “any records concerning the pen

6 register or trap and trace device or the aid furnished” that the recipient retains shall be

7 maintained under appropriate security procedures); 50 U.S.C. § 1861(d)(1) (providing that “[n]o

8 person shall disclose to any other person that the [FBI] has sought or obtained tangible things

9 pursuant to an order under” Title V of FISA).

10

Accordingly, to the extent that plaintiff has received process pursuant to Titles I and VII

11 of FISA, the Title VII directives would contain the statutorily permitted nondisclosure

12 provisions, while the Title I orders would contain nondisclosure requirements that track the 13 statutory provision.2 Likewise, Title III, IV, or V orders would be accompanied by the statutory 14 requirements described above.3

15

2. National Security Letters

16

In 1986, Congress enacted 18 U.S.C. § 2709 to assist the FBI in obtaining information for

17 national security investigations. Section 2709 empowers the FBI to issue an NSL, a type of

18 administrative subpoena. Subsections (a) and (b) of Section 2709 authorize the FBI to request

19 “subscriber information” and “toll billing records information,” or “electronic communication

20 transactional records,” from wire or electronic communication service providers. In order to

21 issue an NSL, the Director of the FBI, or a senior-level designee, must certify that the

22

23 2 Title I orders typically contain language such as: “This order and warrant is sealed and the

24

specified person and its agents and employees shall not disclose to the targets or to any other person the existence of the order and warrant or this investigation or the fact of any of the

25 activities authorized herein or the means used to accomplish them, except as otherwise may be

required by legal process and then only after prior notification to the Attorney General.” Of 26 course, disclosing the number of Title I orders received would violate such a provision as it

27 would “disclose . . . the existence” of each of the orders.

28 3 Electronic communications service providers that receive legal process under FISA typically receive such process through employees who have executed nondisclosure agreements.

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Defendants’ Partial Motion to Dismiss

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1 information sought is “relevant to an authorized investigation to protect against international

2 terrorism or clandestine intelligence activities.” Id. § 2709(b)(1)-(2).

3

The secrecy necessary to successful national security investigations can be compromised

4 if a wire or electronic communication service provider discloses that it has received or provided

5 information pursuant to an NSL. To avoid that result, Congress has enabled restrictions on

6 disclosures by NSL recipients pursuant to 18 U.S.C. § 2709(c). A nondisclosure requirement

7 must be based on a case-by-case determination of need by the FBI and thus may be issued only if

8 the Director of the FBI or another designated senior FBI official certifies that “otherwise there

9 may result a danger to the national security of the United States, interference with a criminal,

10 counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or

11 danger to the life or physical safety of any person.” Id. § 2709(c)(1). If such a certification is

12 made, the NSL itself notifies the recipient of the nondisclosure obligation. Id. § 2709(c)(2). An

13 NSL recipient may petition a district court “for an order modifying or setting aside a

14 nondisclosure requirement imposed in connection with” the NSL. 18 U.S.C. § 3511(b)(1). If the

15 petition is filed more than a year after the NSL was issued, the FBI or Department of Justice

16 must either re-certify the need for nondisclosure or terminate the nondisclosure requirement. Id.

17 § 3511(b)(3). A district court “may modify or set aside” the nondisclosure requirement if the

18 court finds “no reason to believe” that disclosure may cause any of the statutorily enumerated

19 harms. Id. § 3511(b)(2) & (3). The U.S. Court of Appeals for the Second Circuit has interpreted

20 this provision to mean a court may modify or set aside a nondisclosure requirement where it is

21 not supported by “good reason.” Doe v. Mukasey, 549 F.3d 861, 883 (2d Cir. 2008).

22

B. Factual Background

23

As set forth above, the existence of a FISA order or directive imposing obligations on a

24 particular electronic communication service provider may be subject to nondisclosure or sealing

25 obligations and, moreover, is classified national security information. Likewise, the existence of

26 a request for information by NSL is typically subject to a nondisclosure requirement pursuant to

27 the NSL statute. See 18 U.S.C. § 2709(c).

28

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1

On January 27, 2014, the Director of National Intelligence declassified certain aggregate

2 data concerning national security legal process so that recipients of such process could reveal

3 aggregate data, not with specific numbers but in ranges, about the orders and other process they

4 had received. See “Joint Statement by Director of National Intelligence James Clapper and

5 Attorney General Eric Holder on New Reporting Methods for National Security Orders”

6 (January 27, 2014) (“While this aggregate data was properly classified until today, the Office of

7 the Director of National Intelligence, in consultation with other departments and agencies, has

8 determined that the public interest in disclosing this information now outweighs the national

9 security concerns that required its classification.”), available at 10 http://icontherecord.tumblr.com/post/74761658869/joint-statement-by-director-of-national.4

11

The Deputy Attorney General (“DAG”) described that declassification, and the types of

12 information that an electronic communication service provider can provide pursuant to that

13 declassification, in a January 27, 2014 letter to the general counsels for five other companies.

14 See January 27, 2014 Letter from DAG James M. Cole to General Counsels of Facebook, et al.

15 (“DAG Letter”), Exhibit 1 to Compl. See also Compl. ¶¶ 24-26 (plaintiff’s allegations regarding

16 the DAG Letter). The Government also informed the FISC that

17

[t]he Director of National Intelligence has declassified the aggregate data

18

consistent with the terms of the attached letter from the Deputy Attorney General,

in the exercise of the Director of National Intelligence’s discretion pursuant to

19

Executive Order 13526, § 3.1(c). The Government will therefore treat such

disclosures as no longer prohibited under any legal provision that would

20

otherwise prohibit the disclosure of classified data, including data relating to

21

FISA surveillance.

22 See Notice, Exhibit 2 to Compl. (“FISC Notice”), also available at

23 http://www.justice.gov/iso/opa/resources/422201412716042240387.pdf. See also DAG Letter

24 at 1 (noting the letter was sent “in connection with the Notice we filed with the [FISC] today”);

25

26 4 The DNI has also, for the first time, publicly provided statistical information regarding the use

27

of national security legal authorities including FISA and NSLs, and will continue to do so annually. See “Annual Statistics for Calendar Year 2013 Regarding Use of Certain National

28 Security Legal Authorities,” available at

http://icontherecord.tumblr.com/transparency/odni transparencyreport cy2013.

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1 Exec. Ord. 13526, § 3.1(d) (providing for discretionary declassification by the Executive Branch

2 in extraordinary circumstances in the public interest).

3

The Notice also stated the Government’s view that “the terms outlined in the Deputy

4 Attorney General’s letter define the limits of permissible reporting for the parties and other

5 similarly situated companies.” See FISC Notice. By its terms, however, the DAG Letter is

6 permissive, not restrictive. See DAG Letter. It does not purport to classify any previously

7 unclassified information, but rather provides guidance for reporting aggregate data regarding

8 national security legal process received by a particular company consistent with a

9 declassification decision issued by the DNI the same day under Executive Order 13526. The

10 letter and FISC notice informed the parties that the Government considered reporting the data, as

11 declassified, not to violate FISC orders and nondisclosure provisions. Any affirmative non-

12 disclosure obligations arise not from the letter but from the orders and authorities discussed

13 above.

14

The plaintiff in this case, Twitter, Inc., sought review of a draft “Transparency Report”

15 containing specific details regarding any national security legal process received by plaintiff

16 during, inter alia, the second half of 2013. See Compl. ¶ 39 (characterizing draft Report); ECF

17 No. 21-1 (unclassified, redacted version of draft Report). By letter dated September 9, 2014,

18 following further discussions between defendants and plaintiff, the FBI’s General Counsel

19 informed counsel for plaintiff that the draft Report contains information that is properly

20 classified and, therefore, cannot lawfully be publicly disclosed. See September 9, 2014 Letter

21 from James A. Baker to counsel for plaintiff, Exhibit 3 to Compl. (“FBI Letter”); see also

22 Compl. ¶ 40 (plaintiff’s allegations characterizing the letter).

23

The FBI Letter notes that the law does not permit plaintiff to reveal “specific detail that

24 goes well beyond what is allowed under the January 27th framework [i.e., the declassification

25 described in the DAG Letter] and that discloses properly classified information.” Id. Defendants

26 have informed plaintiff which portions of the draft Report cannot lawfully be published and have

27 provided plaintiff and the Court with a redacted, unclassified copy of the draft Report. See ECF 28 No. 21-1.

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1

In its Complaint, Twitter challenges any applicable nondisclosure requirements that stem

2 from statutes, directives and judicial orders issued pursuant to FISA, and nondisclosure

3 agreements.

4

STANDARD OF REVIEW

5

Federal Rule of Civil Procedure 12(b)(1) requires dismissal when the plaintiff fails to

6 meet its burden of establishing subject-matter jurisdiction. St. Clair v. City of Chico, 880 F.2d

7 199, 201 (9th Cir. 1989). Rule 12(b)(1) dismissal is proper when the plaintiff fails to establish

8 the elements of standing, Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009), and,

9 in a suit purportedly brought under the Administrative Procedure Act, when it fails to identify a

10 “final agency action” under the terms of that Act. ONRC Action v. BLM, 150 F.3d 1132, 1135

11 (9th Cir. 1998). The Court may consider evidence outside the pleadings and resolve factual

12 disputes, if necessary, to determine whether jurisdiction is present. See Ass’n of Am. Med. Colls. 13 v. United States, 217 F.3d 770, 778 (9th Cir. 2000).

14

The Court should grant a motion to dismiss under Fed. R. Civ. P. 12(b)(6) if a plaintiff

15 fails to plead enough facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.

16 v. Twombly, 550 U.S. 544, 570 (2007); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,

17 989 (9th Cir. 2009). “Dismissal can be based on the lack of a cognizable legal theory or the

18 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

19 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A Rule 12(b)(6) motion thus tests the legal sufficiency

20 of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.

21 2003). All allegations of material fact are taken as true and construed in the light most favorable

22 to the plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011).

23

Plaintiff brings its FISA-related claims under the Declaratory Judgment Act, and a

24 district court may dismiss claims pursuant to that Act based on prudential considerations such as

25 comity with other courts. See 28 U.S.C. § 2201(a); accord e.g., Wilton v. Seven Falls Co., 515

26 U.S. 277, 288 (1995) (recognizing discretionary nature of declaratory relief); NRDC v. EPA, 966

27 F.2d 1292, 1299 (9th Cir. 1992) (same). That is because “[i]n the declaratory judgment context,

28 the normal principle that federal courts should adjudicate claims within their jurisdiction yields

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1 to considerations of practicality and wise judicial administration.” Wilton, 515 U.S. at 288. In

2 particular, a court should decline to exercise its jurisdiction based on considerations of comity

3 and orderly judicial administration, where, as here, a plaintiff is seeking review of the orders of

4 another court of competent jurisdiction. See, e.g., Principal Life Ins. Co. v. Robinson, 394 F.3d

5 665, 672 (9th Cir. 2005) (highlighting comity and judicial administration as factors informing a

6 court’s discretion); Lapin v. Shulton, Inc., 333 F.2d 169, 172 (9th Cir. 1964) (holding these

7 considerations should lead the non-rendering court to decline jurisdiction over another court’s

8 orders).

9

ARGUMENT

10

I. The Court Should Dismiss Plaintiff’s Challenge to the DAG Letter for Lack

11

of Subject Matter Jurisdiction.

12

Plaintiff’s APA claim against the DAG Letter fails because the DAG Letter is not subject

13 to APA challenge, and because plaintiff has failed to establish its standing to challenge the letter

14 in any event.

15

A. The DAG Letter is Not “Final Agency Action” Subject to Review Under the Administrative Procedure Act.

16

The APA permits judicial review of “final agency action” for which there is “no other

17 adequate remedy in a court.” 5 U.S.C. § 704. Absent these elements, the Court lacks subject

18 matter jurisdiction over an APA claim. Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 163-64

19 (9th Cir. 1990). If an agency action is subject to review, a court may “set aside agency actions”

20 found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

21 law.” 5 U.S.C. § 706.

22

Plaintiff, in challenging the Deputy Attorney General’s January 27, 2014 letter, alleges

23 that letter is “final agency action not in accordance with law” with respect to plaintiff. Compl.

24 ¶ 44. Plaintiff also argues that the letter’s “imposition . . . on Twitter” thus violates various

25 provisions of law. Id. The DAG Letter is not “final agency action” subject to challenge under

26 the APA, however. Moreover, it has not been “imposed” on Twitter; rather, any obligations of

27 plaintiff are to avoid disclosing information that is properly classified, prohibited from disclosure

28 by a FISA order or directive, and/or subject to lawful nondisclosure requirements. Such

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1 obligations stem from other authority including Orders of the FISC, FISA directives, and

2 statutes. They do not stem from the DAG Letter, and plaintiff cannot establish subject matter

3 jurisdiction over its purported claim against that letter in this Court.

4

To qualify as “final” under the APA, an action must mark the “consummation” of an

5 agency decision-making process, and must be one by which “rights or obligations have been

6 determined” or from which “legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-

7 78 (1997). Agency actions that have no effect on a party’s rights or obligations are not

8 reviewable final actions. Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d

9 586, 593-94 (9th Cir. 2008) (action not cognizable under APA where “rights and obligations

10 remain unchanged.”); Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005)

11 (“[I]f the practical effect of the agency action is not a certain change in the legal obligations of a

12 party, the action is non-final for the purpose of judicial review.”).

13

The DAG Letter is not final agency action as to plaintiff or otherwise. Plaintiff’s “rights

14 or obligations” were not determined, and “legal consequences” do not flow, from the DAG’s

15 letter. Bennett, 520 U.S. 177-78. As noted, those obligations stem from statutes, FISC orders,

16 FISA directives, and nondisclosure agreements. Moreover, the DAG Letter does not purport to

17 restrain plaintiff’s behavior in any way. Rather, as noted, it provides guidelines as to permissible

18 disclosures that will not reveal classified information, consistent with the DNI’s declassification

19 decision. The DAG Letter does not instruct plaintiff to take or refrain from any particular action,

20 and it does not threaten any enforcement proceeding. Therefore, it neither imposes new rights or

21 obligations on plaintiff, nor results in new legal consequences for plaintiff.

22

In circumstances like these, courts have consistently held that advisory statements by an

23 agency interpreting other, underlying sources of authority are not final agency action subject to 24 APA challenge. See City of San Diego v. Whitman, 242 F.3d 1097, 1101-02 (9th Cir. 2001) 25 (letter indicating that a particular statute would apply to a city’s application to renew its permit 26 was not a final action); Independent Equipment Dealers Ass’n v. EPA, 372 F.3d 420, 426-28 27 (D.C. Cir. 2004) (letter providing EPA’s interpretation of emissions regulations is not final 28 action); General Motors Corp. v. EPA, 363 F.3d 442, 449 (D.C. Cir. 2004) (letter stating that

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1 used paint solvents are hazardous waste is not final action); Dow Chem. v. EPA, 832 F.2d 319,

2 323-25 (5th Cir. 1987) (letter attaching EPA’s interpretation of a regulation is not final action).

3

Moreover, there is no final action where a document only “impose[s] upon [a party] the

4 already-existing burden of complying with” applicable law, such as a statute or implementing

5 regulations. Acker v. EPA, 290 F.3d 892, 894 (7th Cir. 2002); see Indep. Equip. Dealers Ass’n v.

6 EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (Roberts, J.) (no final action where “‘an agency merely

7 expresses its view of what the law requires of a party, even if that view is adverse to the party’”)

8 (quoting AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001)). The DAG Letter does not

9 even go that far – as noted, it is a permissive document, clarifying what aggregate data

10 disclosures may be made without revealing classified information. See Ctr. for Auto Safety v.

11 NHTSA, 452 F.3d 798, 806-08 (D.C. Cir. 2006) (holding agency guidance letters not to be final

12 agency action based on factors including the permissive language of the document, the agency’s

13 “own characterization of the action,” and the lack of publication in the Federal Register or Code

14 of Federal Regulations); Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 14, 16 (D.C. Cir.

15 2005) (holding that there was no final agency action where the language of challenged Protocols

16 was permissive and “the scope of a [regulated party’s] liability . . . remains exactly as it was

17 before the Protocols’ publication”).

18

B. Plaintiff Has Not Established Article III Standing for its Challenge to the

19

DAG Letter.

20

Because the DAG Letter is permissive guidance that informs companies what has been

21 declassified without altering the “already-existing burden of complying with” applicable law,

22 Acker, 290 F.3d at 894, Twitter has also failed to sufficiently allege Article III standing for its

23 APA claim against that letter. Plaintiff’s alleged injury is not fairly traceable to the DAG Letter

24 or redressable by any relief against the DAG Letter. Allen v. Wright, 468 U.S. 737, 754 n.19,

25 757 (1984); Wash. Envt’l Council v. Bellon, 732 F.3d 1131, 1146 (9th Cir. 2013); Nat’l Ass’n of

26 Home Builders v. U.S. Army Corps of Eng’rs, 663 F.3d 470, 473-74 (D.C .Cir. 2011). If the

27 DAG Letter were somehow “invalidated” by a court, the result would be only that plaintiff and

28 other companies would lack guidance as to what types of information the Government has

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1 declassified. The scope of the DNI’s declassification decision (set forth in the DAG Letter), and

2 more specifically the extent to which information remains classified, along with relevant

3 statutory provisions, FISA orders and directives, would still prohibit the disclosures.

4

A declaratory judgment directed at the DAG Letter would therefore not redress any

5 injury allegedly suffered by plaintiff because it would not alter the fact that plaintiff cannot

6 lawfully disclose properly classified information. See, e.g., Stillman v. CIA, 319 F.3d 546, 548

7 (D.C. Cir. 2003) (in prepublication review case, holding there is no First Amendment right to

8 publish properly classified information) (citing Snepp v. United States, 444 U.S. 507, 509 n.3

9 (1980)). Accordingly, while a plaintiff may challenge the application of relevant restrictions on

10 the disclosure of classified information, including through FISA and orders of the FISC, the

11 plaintiff here lacks standing to challenge the DAG Letter under the APA. Indeed, plaintiff

12 alleges, upon information and belief, that what it characterizes as the “restrictions of the DAG

13 Letter” are based on those other authorities. See Compl. ¶ 45. The Court should therefore

14 dismiss plaintiff’s APA claim pursuant to Fed. R. Civ. P 12(b)(1).

15

II. FISA Nondisclosure Obligations Arise Through FISC Orders or Directives

16

Issued Under a FISC-Approved Program, and Any Challenge Thereto

Should Be Considered by the FISC.

17 It is a settled principle of comity and orderly judicial administration that a challenge to an

18 order of a coordinate court should be heard by that court – especially where, as here, there is a

19 court of specialized jurisdiction and competence. Here, plaintiff seeks to challenge any

20 applicable orders issued under authority of the FISA, as well as provisions of the FISA itself,

21 both of which should be subject to review under the FISC’s specialized jurisdiction.

22 Specifically, plaintiff asks this Court to determine that “[t]he FISA statute . . . and other

23 nondisclosure authorities do not prohibit providers like Twitter from disclosing aggregate

24 information about the number of FISA orders they receive.” Compl. ¶ 49. Plaintiff further

25 purports to challenge “FISA secrecy provisions” and “requirements in FISA” as unconstitutional

26 both facially and as-applied, see Compl. ¶ 18 & Prayer for Relief A(vi) & A(vii).5 But, as

27

28 5 Consistent with the Supreme Court’s instructions that a court must focus on the application of a statute before considering a facial challenge, see Bd. of Trustees of the State Univ. of NY v.

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1 detailed below, with one exception, FISA’s statutory provisions do not operate directly on the

2 recipients of FISA legal process. Instead, recipients of FISA legal process are subject to

3 nondisclosure obligations because of orders issued by the FISC or through directives issued

4 pursuant to a program approved by the FISC and subject to FISC oversight. Thus, a challenge to

5 “FISA secrecy provisions” amounts to a challenge to FISC orders and to directives issued

6 pursuant to a FISC-approved program. This Court should decline to exercise its jurisdiction over

7 such claims, because they should properly be brought before the FISC.

8

Plaintiff brings its claims under the Declaratory Judgment Act, see Compl. ¶¶ 1, 12, and

9 as discussed above, “[t]he Declaratory Judgment Act embraces both constitutional and prudential

10 concerns.” Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222 (9th Cir. 1998). “If [a] suit

11 passes constitutional and statutory muster, the district court must also be satisfied that

12 entertaining the action is appropriate.” Id. at 1223. The Supreme Court has explained that, “[i]n

13 the declaratory judgment context, the normal principle that federal courts should adjudicate

14 claims within their jurisdiction yields to considerations of practicality and wise judicial

15 administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995).

16

Thus, a district court has discretion to decline to exercise jurisdiction over Declaratory

17 Judgment Act claims based on prudential considerations. See 28 U.S.C. § 2201(a). This

18

19 Fox, 492 U.S. 469, 485 (1989), the application of the challenged provisions should be adjudicated by the FISC before the facial constitutional challenge is considered. Furthermore,

20 even if a court were to reach plaintiff’s facial challenge to provisions of FISA, it would be

21

necessary to examine how the challenged provisions operate in practice under the supervision of the FISC. Plaintiff appears to allege overbreadth – that “the statute seeks to prohibit such a

22 broad range of protected conduct that it is unconstitutionally ‘overbroad.’” Members of City Council of LA v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). To succeed in such a
23 challenge, plaintiff would need to establish that the challenged provisions “will have [a] different

24

impact on any third parties’ interests in free speech than [they have] on” the plaintiff. Id. at 801. Moreover, plaintiff would need to establish that “a ‘substantial number’ of [the FISA secrecy

25 provisions’] applications are unconstitutional, ‘judged in relation to the [provisions’] plainly

legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 n.6 26 (2008) (quoting New York v. Ferber, 484 U.S, 747, 769-71 (1982) (internal citations, quotations

27

omitted)). Thus, even the instant facial challenge to requirements of the FISA should be heard in the FISC because the adjudication of that challenge would turn on an interpretation of the scope

28 of nondisclosure provisions in any FISC orders or directives issued pursuant to a FISC-approved

program that may be at issue.

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1 determination is discretionary because “the Declaratory Judgment Act is deliberately cast in

2 terms of permissive, rather than mandatory, authority.” Dizol, 133 F.3d at 1223 (internal

3 quotation omitted). “The Act ‘gave the federal courts competence to make a declaration of

4 rights; it did not impose a duty to do so.’” Id. (quoting Public Affairs Assocs. v. Rickover, 369

5 U.S. 111, 112 (1962)); accord, e.g., Wilton, 515 U.S. 277 (recognizing discretionary nature of

6 declaratory relief); NRDC v. EPA, 966 F.2d 1292, 1299 (9th Cir. 1992) (same). The Supreme

7 Court explained in Wilton that “a district court is authorized, in the sound exercise of its

8 discretion, to stay or to dismiss an action seeking a declaratory judgment. . . .” 515 U.S. at 288.

9 In doing so, “the district court must balance concerns of judicial administration, comity, and

10 fairness to the litigants.” Principal Life Ins. Co. v. Robinson, 394 F.3d at 672 (quoting Am.

11 States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994)) (internal quotations omitted).

12

Here, the Court should exercise its discretion to decline jurisdiction over plaintiff’s FISA-

13 based claims. While either forum would be equally fair to the litigants, considerations of comity

14 and orderly judicial administration weigh in favor of dismissing those claims and requiring

15 plaintiff to bring its challenge to the constitutionality of any orders or directives that may have

16 been issued through the FISC’s legal process before the FISC itself. Proceeding in this manner

17 would be consistent with that statutory framework established by Congress and would provide

18 the litigants the benefit of the FISC’s expertise as a court of specialized jurisdiction.

19

Actions challenging the orders of another court are “disfavored.” FDIC v. Aaronian, 93

20 F.3d 636, 639 (9th Cir. 1996). Indeed, the Court of Appeals has instructed that “considerations

21 of comity and orderly administration of justice demand that the nonrendering court should

22 decline jurisdiction of such an action and remand the parties for their relief to the rendering

23 court.’” Lapin, 333 F.2d at 172; see also Treadaway v. Academy of Motion Picture Arts & 24 Sciences, 783 F.2d 1418, 1422 (9th Cir. 1986) (“When a court entertains an independent action 25 for relief from the final order of another court, it interferes with and usurps the power of the 26 rendering court just as much as it would if it were reviewing that court’s equitable decree.”). 27 Thus, in Lapin, the Court of Appeals affirmed the California district court’s refusal to hear a 28 challenge to an injunction issued by a district court in Minnesota. See 333 F.2d at 169. The

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1 Court of Appeals concluded that “sound reasons of policy support the proposition that relief

2 should be sought from the issuing court . . . . so long as it is apparent that a remedy is available

3 there,” id. at 172, and emphasized its agreement that “‘it is clear, as a matter of comity and of the

4 orderly administration of justice, that [a] court should refuse to exercise its jurisdiction to

5 interfere with the operation of a decree of another federal court’” id. (quoting Torquay Corp. v. 6 Radio Corp. of Am., 2 F. Supp. 841, 844 (S.D.N.Y. 1932)).6 See also Delson Group, Inc. v. GSM

7 Ass’n, 570 Fed. Appx. 690 (9th Cir. Apr. 21, 2014) (relying on Aaronian, Treadaway, & Lapin;

8 upholding California district court’s dismissal of a challenge to the judgment of a Georgia

9 district court).

10

The same principles would apply here to any challenge to the alleged application of FISA

11 secrecy obligations. As noted above, although the Complaint refers to “FISA secrecy

12 provisions,” and “requirements in FISA,” see Compl. ¶ 18 & Prayer for Relief A(vi) & A(vii), it

13 is most often the FISC itself – or government directives issued through programs approved by

14 the FISC – that impose nondisclosure obligations on recipients of legal process. FISA

15 establishes the contours of such orders and directives, and it is primarily through such orders or

16 directives that plaintiff may be bound to protect the secrecy of surveillance conducted pursuant

17 to FISA authority.

18

For example, the section of FISA that plaintiff highlights in the Complaint, see Compl.

19 ¶ 18 (quoting Section 1805(c)(2)(B)), addresses electronic surveillance orders issued under Title

20 I. That provision, in Section 1805(a), enumerates the findings a FISC judge must make before

21 issuing such an order, while Section 1805(c) lists “specifications and directions” for such an

22

23 6 See also, e.g., Ord v. United States, 8 Fed. Appx. 852, 854 (9th Cir. May 8, 2001) (affirming

24

the California district court’s refusal to hear a challenge to a District of Columbia district court’s order, and its holding that “if Ord wants to take the D.C. court’s order to task, he should seek

25 relief in the D.C. court. He may not upset the principles of judicial comity, fairness and

efficiency that underlie the basic rule against horizontal appeals.”); Hernandez v. United States, 26 No. CV 14-00146, 2014 U.S. Dist. LEXIS 116921, at *5–7 (C.D. Cal. Aug. 20, 2014) (declining

27

jurisdiction, as a matter of comity, over a challenge to a Texas district court’s order); Zdorek v. V Secret Catalogue Inc., No. CV 01-4113, 2001 U.S. Dist. LEXIS 26120, at *17-*18 (C.D. Cal.

28 Aug. 1, 2001) (declining jurisdiction, as a matter of comity, over a challenge to an Ohio court’s

order).

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1 order. As part of that list, Section 1805(c)(2) states that “[a]n order approving an electronic

2 surveillance under this section shall direct”:

3

that, upon the request of the applicant, a specified communication or other

4

common carrier . . . furnish the applicant forthwith all information, facilities, or

technical assistance necessary to accomplish the electronic surveillance in such a

5

manner as will protect its secrecy.

6
50 U.S.C. § 1805(c)(2)(B). Thus, if the nondisclosure obligations described by this section apply 7
to plaintiff, they apply through an order that would have been issued to the plaintiff by the FISC. 8
FISA Title IV also requires orders authorizing pen registers and trap and trace devices – 9
like orders issued under Title I – to incorporate requirements that the recipients of such orders 10
“furnish any information, facilities, or technical assistance necessary to accomplish the 11
installation and operation of the pen register or trap and trace device in such a manner as will 12
protect its secrecy.” 50 U.S.C. § 1842(d)(2)(B)(i). Such orders must also require that recipients 13
“not disclose the existence of the investigation or of the pen register or trap and trace device to 14
any person unless or until ordered by the court.” 50 U.S.C. §1842(d)(2)(B)(ii). As with Title I, 15
these nondisclosure obligations, to the extent they are applicable in this case, would also be 16
imposed by the FISC orders, rather than by the statute directly. 17
FISA Title VII – under which the Government may acquire communications of non-U.S. 18
persons located abroad – likewise does not impose a nondisclosure requirement directly on the 19
telecommunications providers from which such communications are acquired. See 50 U.S.C. § 20
1881a. Under Section 702’s framework, the Attorney General and the DNI may submit to the 21
FISC a certification that the Government’s proposed procedures fulfill certain enumerated 22
statutory requirements. See 50 U.S.C. §1881a(g) & (i). If the FISC approves that certification,7 23
the Attorney General and DNI may authorize jointly, for up to one year, the “targeting of persons 24
reasonably believed to be located outside the United States to acquire foreign intelligence 25
information,” id. at §1881a(a), and “may direct . . . an electronic communication service provider 26

27 7 If the Attorney General and DNI determine that exigent circumstances exist, they may authorize 28 collection prior to the FISC’s certification of approval; that authorization must be submitted to
the FISC for its approval within seven days. See 50 U.S.C. §1881(g)(1)(B).

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

17

Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page28 of 34

1 to” facilitate such acquisition “in a manner that will protect the secrecy of the acquisition.” Id. at

2 §1881a(h)(1). Like the FISC orders discussed above, these directives, rather than the statute

3 itself, impose the nondisclosure obligations on the providers that receive them. The FISC’s

4 review of these directives, if they are challenged or if the government moves to compel

5 compliance, is integral to the statute’s structure; indeed, the same section of FISA that introduces

6 Section 702 directives sets forth the framework for the FISC’s review. See id. at §1881a(h)

7 (“Directives and judicial review of directives”).

8

In Section 501 of FISA Title V (sometimes referred to as “Section 215”), which sets forth

9 the procedures for obtaining “access to certain business records for foreign intelligence and

10 international terrorism investigations,” see 50 U.S.C. §1861, Congress chose to directly impose a

11 nondisclosure obligation. Unlike the other provisions discussed above – where nondisclosure

12 obligations are imposed through the content of the orders or directives – Title V imposes a

13 nondisclosure requirement on the recipients of such orders. See id. at §1861(d). But this

14 provision also implicates the FISC’s expertise, and provides specific procedures for the FISC’s

15 expeditious review of its nondisclosure requirements where such review is requested by the

16 recipient of an order. See id. at §1861(f). Moreover, such nondisclosure obligations do not arise

17 unless and until the FISC issues an order requiring production, and notifying its recipient of,

18 inter alia, the nondisclosure obligations imposed by Section 1861(d). See id. at §1861(c).

19

In sum, “FISA secrecy provisions” largely do not impose nondisclosure obligations

20 through their text as the Complaint suggests. Rather, they operate through FISC orders and

21 directives subject to the FISC’s oversight. Accordingly, plaintiff’s challenge to FISA

22 nondisclosure obligations amounts to a challenge of any FISC orders and directives that plaintiff

23 has received. A recipient of FISA legal process, in other words, is enjoined by the FISC (or 24 barred by the government through a process supervised by the FISC) from disclosing 25 information. And just as a party under an injunction in one court cannot normally challenge that 26 injunction elsewhere, see Lapin, 333 F.2d at 172, this Court should not permit plaintiff to 27 challenge legal obligations incurred in the FISC. Rather, “as a matter of comity and of the

28

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18

Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page29 of 34

1 orderly administration of justice,” id., plaintiff’s challenge to orders issued by the FISC or

2 directives issued under a FISC-approved program should be brought before the FISC.

3

This approach would be consistent with the framework established by Congress, which

4 created the FISC as a court of specialized jurisdiction to administer the provisions of FISA. See

5 50 U.S.C. § 1803. Indeed, for certain provisions, FISA addresses the particular circumstances

6 and proceedings under which such challenges may be brought. A party receiving a production

7 order under Title V’s business records provision, for example, “may challenge the legality of that

8 order by filing a petition with” the FISC. 50 U.S.C. §1861(f)(2)(A)(i). Review of such

9 proceedings must be expeditious, and records must be maintained pursuant to special security

10 measures. 50 U.S.C. §1861(f)(2)(A)(i)-(ii), (f)(4). Likewise, a provider receiving directives

11 from the Government pursuant to section 702 may “file a petition to modify or set aside such

12 directive with the [FISC], which shall have jurisdiction to review such petition.” 50 U.S.C.

13 §1881a(h)(4)(A). A judge on the FISC must conduct an initial review within five days and

14 render a ruling within thirty days. 50 U.S.C. §1881a(h)(4)(D)-(E). Moreover, the FISC, like any

15 other federal court, has “inherent authority . . . to determine or enforce compliance with” its

16 “order[s]” and “rule[s],” and with “procedure[s] approved by [the] court.” 50 U.S.C. § 1803(h).

17 As part of this authority, the FISC can determine the scope of the obligations imposed by its

18 orders or by directives issued pursuant to FISC process, as well as the constitutionality of those

19 orders or directives. See, e.g., In re Motion for Release of Court Records, 526 F. Supp. 2d 484,

20 491–97 (F.I.S.C. 2007) (considering whether there is a First Amendment right of access to FISC 21 records).8

22

Furthermore, requiring plaintiff to bring its FISA-based claims to the FISC would give

23 the parties the benefit of the FISC’s expertise, both as to the interpretation of its own orders, and

24

25 8 Courts in other contexts have noted that the existence of such alternative proceedings renders

deference to an alternative forum with competent jurisdiction particularly appropriate. See 26 Katzenbach v. McClung, 379 U.S. 294, 296 (1964) (Declaratory relief ordinarily “should not be

27

granted where a special statutory proceeding has been provided.”); see also, e.g., Clausell v. Turner, 295 F. Supp. 533, 536-37 (S.D.N.Y. 1969) (a suit for declaratory relief cannot be used to

28 attack a criminal conviction; rather, the habeas procedures delineated in 28 U.S.C. §§ 2254, 2255

are specifically designed for that purpose).

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page30 of 34

1 as to the structure of FISA itself. As a general matter, the issuing court “is the best judge of its

2 own orders.” Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 836 (9th Cir. 2011).

3 Moreover, as the FISC has observed, “FISA is a statute of unique character,” and, “as a statute

4 addressed entirely to specialists, it must . . . be read by judges with the minds of specialists.” In

5 re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611,

6 615 (F.I.S.C. 2002), abrogated on other grounds by In re Sealed Case No. 02-001, 310 F.3d 717

7 (F.I.S.C.R. 2002). The FISC, along with the Foreign Intelligence Surveillance Court of Review,

8 “is the arbiter of FISA’s terms and requirements” and the members of that court develop

9 “specialized knowledge” in the course of their service. Id. The FISC’s expertise in the

10 interpretation of both any orders it may have issued and the statutory scheme it administers

11 presents an additional reason why this Court should decline jurisdiction over plaintiff’s FISA-

12 based claims.

13

III. Plaintiff’s Challenge to the National Security Letter Statutory Standard of

14

Review Fails as a Matter of Law.

15

Plaintiff also challenges the constitutionality of the NSL statute, including the standard of

16 review of an NSL nondisclosure requirement.9 Those questions are now before the Ninth Circuit

17 in cases argued in October 2014. See Appeal Nos. 13-16732, 13-16731, 13-15957 (9th Cir.).

18 Because the outcome of those cases (which are discussed below) is likely to impact, if not

19 control, the outcome of plaintiff’s NSL-related claims in this case, judicial economy would be

20 served by the Court’s considering those claims after the Court of Appeals has ruled.

21 Nonetheless, the Government is obligated to respond to plaintiff’s Complaint and thus now

22 moves to dismiss plaintiff’s challenge to the NSL statutory standard of review pursuant to Fed.

23 R. Civ. P. 12(b)(6).

24

A reviewing court may modify or set aside an NSL nondisclosure requirement “if it finds

25 that there is no reason to believe that disclosure may” lead to an enumerated harm. 18 U.S.C.

26 § 3511(b)(2). Plaintiff, challenging this provision under the separation-of-powers doctrine,

27 9 Plaintiff’s Complaint does not challenge or contain allegations regarding any particular NSL it 28 may have received, but rather challenges restrictions on disclosure of aggregate data concerning
such NSLs.

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page31 of 34

1 claims it “impermissibly requires the reviewing court to apply a level of deference to the

2 government’s nondisclosure decisions that conflicts with the constitutionally mandated level of

3 review, which is strict scrutiny.” Compl. ¶ 48. Plaintiff is mistaken, and the Second Circuit has

4 held that this provision may be applied consistent with the Constitution. See Doe, 549 F.3d at

5 875-76.

6

Congress routinely and properly mandates deferential standards for judicial review of

7 Executive Branch decisions. The most well-known example is the deferential “arbitrary and

8 capricious” standard of review prescribed by the APA. See 5 U.S.C. § 706(2); Ariz. Cattle

9 Growers’ Ass’n v. United States Fish & Wildlife, 273 F.3d 1229, 1235-36 (9th Cir. 2001) (“The

10 arbitrary and capricious test is a narrow scope of review. . . . The court is not empowered to

11 substitute its judgment for that of the agency.”). See also, e.g., 2 U.S.C. § 1407(d); 7 U.S.C.

12 § 1508(3)(B)(iii)(II); 12 U.S.C. §§ 203(b)(1), 1817(j)(5); 15 U.S.C. § 78l(k)(5). As long as the

13 standard of review is not inconsistent with some substantive constitutional limitation, such as the

14 First Amendment, Congress has plenary authority to decide what standard of judicial review

15 should be employed. And the standard here is consistent with the First Amendment: the federal

16 courts have consistently given deference to reasoned judgments by the Executive Branch

17 regarding the potential harms to national security that may result from disclosures of classified

18 (and even non-classified) information about counterintelligence and counterterrorism programs.

19 See, e.g., Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988); CIA v. Sims, 471 U.S. 159, 179

20 (1985); Center for Nat’l Security Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003);

21 McGehee v. Casey, 718 F.2d 1137, 1147-49 (D.C. Cir. 1983).

22

Nor would the application of strict scrutiny (assuming, arguendo, that it applies)

23 preclude judicial deference to executive assessments of national security harms. Indeed, a Court 24 could apply strict scrutiny while complying with the NSL statute. That is what the U.S. Court of 25 Appeals for the Second Circuit did when it applied strict scrutiny to the NSL statute (assuming 26 without deciding that strict scrutiny was the appropriate level of review) and properly avoided 27 any possible constitutional question by interpreting § 3511(b)(2) as requiring the Government “to 28 persuade a district court that there is a good reason to believe that disclosure may risk one of the

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page32 of 34

1 enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find

2 that such a good reason exists.” Doe, 549 F.3d at 875-76. This Court should follow the Second

3 Circuit’s reasonable reading of the statutory language, which gives effect to that language while

4 eliminating constitutional concerns. See, e.g., United States v. Diaz, 491 F.3d 1074, 1077 (9th

5 Cir. 2007) (“reason to believe,” “reasonable belief,” and “reasonable grounds for believing”

6 bear the same meaning); United States v. Gorman, 314 F.3d 1105, 1111 n.4 (9th Cir. 2002)

7 (same). Accord Detroit Free Press v. Ashcroft, 303 F.3d 681, 707 (6th Cir. 2002) (holding

8 national security-related deportation rule was subject to strict scrutiny while deferring to

9 Executive Branch judgments about the potential for public disclosures to harm national security:

10 “we defer to [the government’s] judgment. These agents are certainly in a better position [than

11 the court] to understand the contours of the investigation and the intelligence capabilities of 12 terrorist organizations.”).10

13

In a decision now on appeal, another judge of this Court ruled that the “reason to believe”

14 standard was not the “searching standard of review” required by the First Amendment, but

15 provided no authority for that conclusion. In re NSL, 930 F. Supp. 2d 1064, 1077 (N.D. Cal. 16 2013) (Illston, J.), appeal docketed, No. 13-15957 (9th Cir.).11 The In re NSL Court

17 10 Indeed, it bears noting that adherence to a deferential standard of review like the one Congress
18 prescribed in § 3511(b) does not compel courts to abdicate their institutional responsibilities
19 under Article III:

20

In so deferring, we do not abdicate the role of the judiciary. Rather, in

21

undertaking a deferential review, we simply recognize the different roles underlying the constitutional separation of powers. It is within the role of the

22

executive to acquire and exercise the expertise of protecting national security. It

is not within the role of the court to second-guess executive judgments made in

23

furtherance of that branch’s proper role.

24 Center for Nat’l Security Studies, 331 F.3d at 932. The same reasoning applies here.

25 11 Judge Illston subsequently found the statute to be lawfully applied and issued orders to enforce
26 multiple NSLs issued to multiple electronic communications service providers. See In re Matter

27

of NSLs, Order Denying Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13cv1165-SI (N.D. Cal. August 12, 2013) (enforcing 2 NSLs), appeal docketed, No. 13-16732

28 (9th Cir.); In re Matter of NSLs, Order Denying Petition to Set Aside, Denying Motion to Stay,

and Granting Cross-Petition to Enforce, No. 13mc80089-SI (N.D. Cal. August 12, 2013)

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

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Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page33 of 34

1 acknowledged that the Second Circuit’s construction of the judicial review provision “might be

2 less objectionable,” 930 F. Supp. 2d at 1078, but nonetheless adopted a reading of the provision 3 which, in its view, rendered the statute unconstitutional.12 It did so by assuming that Congress

4 had an unconstitutional intent in enacting the statute, namely “to circumscribe a court’s ability to

5 modify or set aside nondisclosure NSLs unless the essentially insurmountable standard ‘no

6 reason to believe’ that a harm ‘may’ result is satisfied.” Id. at 1077.

7

The Government respectfully submits that the In re NSL Court erred in starting with that

8 premise. The doctrine of constitutional avoidance “assumes that Congress, no less than the

9 Judicial Branch, seeks to act within constitutional bounds, and thereby diminishes the friction

10 between the branches that judicial holdings of unconstitutionality might otherwise generate.”

11 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 565-66 (2009); accord Jones v. United

12 States, 526 U.S. 227, 240 (1999) (courts assume that Congress legislates in light of constitutional

13 limitations). This doctrine is particularly apt here because it would have been unreasonable for

14 (enforcing 2 NSLs), appeal docketed, No. 13-16731 (9th Cir.); In re NSLs, Order Denying
15 Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13mc80063-SI (N.D. Cal. May

16 28, 2013) (Amended Order for Public Release enforcing 17 NSLs); In re NSLs, Order, No. 13mc80063-SI (N.D. Cal. May 23, 2013) (enforcing 2 NSLs).

17

12 The In re NSL Court also faulted § 3511(b)(2) (as did the Second Circuit in Doe) for making 18 certifications by senior officials regarding certain potential harms “conclusive” in judicial

19 proceedings in the absence of bad faith. 930 F. Supp. 2d at 1077. The In re NSL Court mischaracterized the statute, however, as making any FBI certification regarding any of the

20 statutorily enumerated harms conclusive, and therefore assumed that the certifications at issue

21

there were conclusive under the statute. See id. But, in fact, the statute provides that certifications for FBI-issued NSLs are conclusive only if made by “the Attorney General, Deputy

22 Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of

Investigation” and only if they state “that disclosure may endanger the national security of the

23 United States or interfere with diplomatic relations.” 18 U.S.C. § 3511(b)(2). Certifications by

24

other Government officials, and certifications relating to other statutorily enumerated harms (such as “interference with a criminal, counterterrorism, or counterintelligence investigation,” 18

25 U.S.C. § 2709(c)(1)), are not “conclusive” under the statute. There is no allegation that such a

certification is at issue here, or even that there has ever been such a certification. Accordingly, 26 the validity of this statutory provision is irrelevant to this case. Twitter does not appear to have

27

challenged it by its Complaint and, in any event, would lack standing to do so. See, e.g., Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892 (9th Cir. 2007) (overbreadth standing

28 requires that party challenging statute be subject to the specific statutory provision being

challenged); Gospel Missions of Am. v. City of L.A., 328 F.3d 548, 554 (9th Cir. 2003) (same).

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

23

Defendants’ Partial Motion to Dismiss

Case4:14-cv-04480-YGR Document28 Filed01/09/15 Page34 of 34

1 Congress to have proposed enforcing nondisclosure requirements in NSLs based on any reason –

2 including an irrational or wholly unsupportable reason – and therefore the only reasonable

3 reading of the statute is that it requires a “good” reason. See Doe, 549 F.3d at 875-76. The

4 Second Circuit properly interpreted the NSL statute in light of both common sense and the

5 assumption that Congress intends to legislate constitutionally. To the extent it does not await the

6 Ninth Circuit’s ruling on the NSL statute, this Court should follow the Second Circuit’s

7 reasoning and dismiss plaintiff’s challenge to the NSL statutory standard of review pursuant to 8 Fed. R. Civ. P. 12(b)(6).13

9

CONCLUSION

10

For all of the foregoing reasons, the Court should grant this Motion and dismiss

11 plaintiff’s claims under Count I of its Complaint concerning FISA, legal process issued under

12 FISA, the January 27, 2014 letter from the Deputy Attorney General, and 18 U.S.C. § 3511.

13 Dated: January 9, 2015 14
15

Respectfully submitted,
JOYCE R. BRANDA Acting Assistant Attorney General

16

MELINDA HAAG

17

United States Attorney

18

ANTHONY J. COPPOLINO

19

Deputy Branch Director

20

/s/ Steven Y. Bressler

STEVEN Y. BRESSLER

21

JULIA A. BERMAN

22

Attorneys U.S. Department of Justice

23

Civil Division, Federal Programs Branch

24

Attorneys for Defendants

25 13 Plaintiff also challenges the NSL statute and any applicable nondisclosure requirements as
26 applied and on their face. See Compl. ¶¶ 46-47. Those claims do not implicate orders of the

27

FISC, and the Government does not move to dismiss them at this time under Rule 12. Defendants would seek this Court’s leave to move for summary judgment on those claims, as

28 well as any others remaining after the Court adjudicates this Motion to Dismiss, at an appropriate

time.

Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480

24

Defendants’ Partial Motion to Dismiss

 
 Case4:14-cv-04480-YGR Document74 Filed07/17/15 Page1 of 17

1

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

2 MELINDA HAAG United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director STEVEN Y. BRESSLER

5 Senior Trial Counsel JULIA A. BERMAN
6 Trial Attorney

7 United States Department of Justice Civil Division, Federal Programs Branch

8

P.O. Box 883 9 Washington, D.C. 20044

10 Telephone: (202) 305-0167 Facsimile: (202) 616-8470

11 Email: Steven.Bressler@usdoj.gov

12 Attorneys for Defendants the Attorney General, et al.

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15 __________________________________________ )

16 TWITTER, INC.,

)

Case No. 14-cv-4480

17

Plaintiff,

)

)

SUPPLEMENTAL BRIEF

18 v.

19

LORETTA E. LYNCH,1 United States

20

Attorney General, et al.,

)

REGARDING THE

)

USA FREEDOM ACT

)

)

)

21

)

__________________________________________)

22

23

24

25

26

27 1 Loretta E. Lynch, the Attorney General of the United States, is substituted as defendant in this
28 action for her predecessor, Eric H. Holder, pursuant to Fed. R. Civ. P. 25(d).

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480 Defendants’ Supplemental Brief Regarding the USA FREEDOM Act

Case4:14-cv-04480-YGR Document74 Filed07/17/15 Page2 of 17

1

TABLE OF CONTENTS

2

3 PRELIMINARY STATEMENT .................................................................................................... 1 4
STATUTORY BACKGROUND: THE USA FREEDOM ACT ................................................... 2 5

6 A. Section 603 of the Act Provides for Disclosure of Aggregate Data Concerning National Security Legal Process. .........................................................................................................2
7
8 B. Section 502 of the Act Amending National Security Letter Statutes .................................... 4

9

1. The Act’s Amendments To 18 U.S.C. § 3511(b)....................................................... 4

10 2. The Act’s Amendments To 18 U.S.C. § 2709 ........................................................... 6
11

12 ARGUMENT.................................................................................................................................. 6

13 I. Plaintiff’s Administrative Procedure Act Challenge to the January 2014

14

DAG Letter Is Moot. .............................................................................................................7

15 II. Plaintiff’s Facial First Amendment Overbreadth Challenges to FISA and the NSL Statutes Are Moot. ........................................................................................................9
16

17 III. The USA FREEDOM Act Reinforces the Constitutionality of the NSL Statutes.................10

18

A. The Amended Standard of Review is Constitutional............................................... 11

19

B. The Amended Statute Satisfies the Procedural Requirements of Freedman

20

v. Maryland .............................................................................................................12

21 C. NSL Nondisclosure Requirements Satisfy Strict Scrutiny ..................................... 13
22

23 CONCLUSION............................................................................................................................. 15

24

25

26

27

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480 Defendants’ Supplemental Brief Regarding the USA FREEDOM Act

Case4:14-cv-04480-YGR Document74 Filed07/17/15 Page3 of 17

1

PRELIMINARY STATEMENT

2

The USA FREEDOM Act of 2015 enacted changes in law that directly impact plaintiff

3 Twitter, Inc.’s claims in this case. See Pub. L. No. 114-23, 129 Stat. 268 (“the USA FREEDOM

4 Act” or “the Act”). Specifically, the Act amended the Foreign Intelligence Surveillance Act

5 (“FISA”), as well as statutes governing the FBI’s issuance of National Security Letters

6 (“NSLs”), to, first, permit the disclosure by recipients of national security legal process of certain

7 aggregate data concerning such process; and, second, to expressly conform statutory provisions

8 governing the issuance and judicial review of NSLs to procedures that courts have recognized as

9 constitutional. These amendments have a significant impact on the two broad categories of

10 claims raised in this litigation: (i) plaintiff’s challenge to restrictions on the disclosure of data on

11 national security process; and (ii) plaintiff’s challenge to aspects of the statutory authority

12 governing issuance and judicial review of NSLs.

13

First, the legislation moots plaintiff’s purported Administrative Procedure Act (“APA”)

14 challenge to a letter by the Deputy Attorney General. See January 27, 2014 Letter from James

15 M. Cole to General Counsels of Facebook, et al. (“DAG Letter”), Compl., Exh. 1. The DAG

16 Letter described ways in which recipients of national security legal process could report data

17 consistent with a classification determination by the Director of National Intelligence (“DNI”).

18 Plaintiff’s APA challenge to the DAG Letter description of what it could disclose in a

19 “Transparency Report” is moot because the reporting options described in the DAG Letter have

20 been superseded by the statutory framework in the USA FREEDOM Act and a subsequent,

21 corresponding declassification decision by the DNI. Plaintiff has not challenged the relevant

22 provisions of the USA FREEDOM Act. However, the draft “Transparency Report” that plaintiff

23 wishes to publish (previously submitted as an exhibit to the Complaint) does not conform to the 24 new permissible reporting options available under the Act. The report also contains information 25 that remains properly classified. The classified portions of plaintiff’s draft Report therefore 26 cannot be lawfully disclosed under the Act, and their disclosure is prohibited by any applicable 27 orders of the Foreign Intelligence Surveillance Court (“FISC”) or directives supervised by that

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

1

Defendants’ Supplemental Brief Regarding the USA FREEDOM Act

Case4:14-cv-04480-YGR Document74 Filed07/17/15 Page4 of 17

1 Court, 2 statute, or nondisclosure agreements. The DAG Letter is therefore immaterial and

2 plaintiff’s APA challenge should be dismissed as moot.

3

The mootness of plaintiff’s APA challenge further supports the Government’s argument

4 to dismiss the FISA-related claims for comity reasons. As the Government explained in its

5 Motion to Dismiss briefing, to the extent plaintiff continues to challenge the scope or

6 constitutionality of FISA nondisclosure obligations, plaintiff’s challenge puts at issue orders,

7 warrants, and directives issued by the FISC or under its supervision. Under settled principles of

8 comity, the Court should defer to the FISC with respect to these FISA-based claims so that the

9 FISC may determine the meaning of the statute that it is entrusted to administer, and any

10 directives issued pursuant to that statute, and any of the FISC’s own orders.

11

Second, the USA FREEDOM Act materially amended the NSL statutes that plaintiff

12 challenged in its Complaint. Plaintiff’s facial challenge to prior statutory provisions is therefore

13 moot. Moreover, those amendments reinforce the constitutionality of the now-amended

14 provisions.

15

For all of these reasons, set forth further below, the USA FREEDOM Act moots several

16 of plaintiff’s claims and strengthens the Government’s pending Motion to Dismiss.

17

STATUTORY BACKGROUND: THE USA FREEDOM ACT

18 A. Section 603 of the Act Provides for Disclosure of Aggregate Data Concerning

19

National Security Legal Process.

20

Section 603(a) of the USA FREEDOM Act establishes a statutory mechanism for

21 recipients of national security legal process, including orders of the FISC, directives supervised

22 by that court pursuant to the FISA, and NSLs, to make public disclosures of aggregated data

23 about such process. See USA FREEDOM Act § 603(a). This section is modeled on the

24 reporting options that were described in the January 27, 2014 DAG Letter and DNI

25

26
27 2 Defendant’s discussion of FISA orders or directives that plaintiff could have received, and that could require plaintiff not to disclose the existence of the orders or directives, is not intended to
28 confirm or deny that plaintiff has, in fact, received any such national security legal process.

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

2

Defendants’ Supplemental Brief Regarding the USA FREEDOM Act

Case4:14-cv-04480-YGR Document74 Filed07/17/15 Page5 of 17

1 declassification decision but provides additional and more detailed reporting options.3 Compare

2 DAG Letter, Compl., Exh. 1, with USA FREEDOM Act § 603(a); see also H.R. Rep. No. 114-

3 109, at 26-27 (2015) (noting that this provision was modeled on the DAG Letter framework).

4

First, the Act provides that a person who has received national security legal process such

5 as an NSL or FISA order may publicly release a semiannual report that aggregates in separate

6 bands of 1000, starting with 0-999: the number of NSLs the person was required to comply

7 with; the number of customer selectors (e.g., user accounts) targeted by NSLs; the combined

8 number of FISA orders or directives received requiring the person to provide communication

9 contents; the number of customer selectors targeted by orders or directives for contents; the

10 number of FISA orders received for non-content information; and the number of customer

11 selectors targeted under FISA orders for certain types of non-content information. USA

12 FREEDOM Act § 603(a)(1), codified at 50 U.S.C. § 1874(a)(1). This reporting option was

13 modeled on the first option in the previously described DAG Letter, but alters that option to

14 expressly permit slightly more detailed reporting with respect to non-content requests, and alters

15 the timing of reporting. See id; DAG Letter at 2-3. Thus, whereas the declassification

16 framework described in the DAG Letter required providers to wait for 180 days before reporting

17 and to wait 24 months before reporting on any FISA orders or directives received with respect to

18 a new platform, product, or service, the Act shortened the period applicable to new platforms,

19 products, or services to 18 months. 50 U.S.C. § 1874(a)(1).

20

Second, the Act provides the option to report data consistent with the provisions

21 described above but in bands of 500, starting with 0-499, so long as non-content FISA data is not

22 broken out by authority. USA FREEDOM Act § 603(a)(2), codified at 50 U.S.C. § 1874(a)(2).

23 As with the option available under § 603(a)(1) and discussed supra, this provision is modeled on 24 option 1 in the DAG Letter, but it provides for narrower bands and shortens the delay period with 25 respect to new platforms, products, or services to 18 months from 24 months.

26

27 3 Pursuant to Executive Order 13,526, 75 Fed. Reg. 1013 (Dec. 29, 2009), the DNI subsequently
28 declassified such aggregate data when reported consistent with the USA FREEDOM Act.

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1

Third, the Act provides that a recipient of national security legal process may publicly

2 release a semiannual report that aggregates in bands of 250, starting with 0-249, the total number

3 of all national security legal process received (including NSLs and FISA orders and directives),

4 and the total number of customer selectors targeted by such national security legal process. USA

5 FREEDOM Act § 603(a)(3), codified at § 1874(a)(3). This option is the same as option 2 in the

6 DAG Letter but makes clear that the delayed reporting provisions for new platforms, products, or

7 services do not apply. Id.; DAG Letter at 3.

8

Fourth, the Act provides an option for more detailed reporting not previously described in

9 the DAG Letter: a recipient of national security legal process may publicly release an annual

10 report of the total number of all national security process received and the number of customer

11 selectors targeted under all such legal process received in bands of 100, starting with 0-99. USA

12 FREEDOM Act § 603(a)(4), codified at 50 U.S.C. § 1874(a)(4).

13

While Section 603 of the USA FREEDOM Act amended FISA to provide recipients of

14 national security legal process with these reporting options, the Act’s terms are permissive; and it

15 does not, itself, prohibit other forms of reporting. See USA FREEDOM Act § 603(c), codified at

16 50 U.S.C. § 1874(c) (“Nothing in this section prohibits the Government and any person from

17 jointly agreeing to the publication of information referred to in this subsection in a time, form, or

18 manner other than as described in this section.”).

19

B. Section 502 of the Act Amending National Security Letter Statutes

20

The USA FREEDOM Act amended the statutes that govern the FBI’s issuance of NSLs,

21 including nondisclosure requirements pursuant to a certification of need, as well as judicial

22 review of NSLs, including those that plaintiff challenges in its Complaint, 18 U.S.C. §§ 2709 and

23 3511.

24

1. The Act’s Amendments To 18 U.S.C. § 3511(b)

25

Section 502(g) of the USA FREEDOM Act revises the terms of 18 U.S.C. § 3511(b) –

26 the prior version of which plaintiff challenged in its Complaint (¶ 46) – to codify the reciprocal

27 notice procedure for NSL nondisclosure requirements that the Second Circuit found

28 constitutional in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and that the

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1 Government has been following since 2009. As amended by the Act, 18 U.S.C. § 3511(b)(1)(A)

2 provides an NSL recipient with two alternative means to obtain judicial review of a

3 nondisclosure requirement: by filing a petition for judicial review or by notifying the

4 Government. 18 U.S.C. § 3511(b)(1)(A). If the recipient notifies the Government that it wishes

5 to have a court review a nondisclosure requirement, the Government must apply for a

6 nondisclosure order within thirty days thereafter. Id. § 3511(b)(1)(B). The Act calls on the

7 district court to “rule expeditiously,” and if the court determines that the requirements for

8 nondisclosure are met, it shall “issue a nondisclosure order that includes conditions appropriate

9 to the circumstances.” Id. § 3511(b)(1)(C).

10

The House Committee Report states that Section 502 of the Act “corrects the

11 constitutional defects in the issuance of NSL nondisclosure orders found by the Second Circuit

12 Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d. Cir. 2008), and adopts the concepts

13 suggested by that court for a constitutionally sound process.” H.R. Rep. No. 114-109, at 24. The

14 option for the recipient to notify the Government “is intended to ease the burden on the recipient

15 in challenging the nondisclosure order.” Id.

16

Under the amended terms of § 3511(b), the Government’s application for a nondisclosure

17 order must include a certification from a specified Government official that contains “a statement

18 of specific facts indicating that the absence of a prohibition [on] disclosure” may result in

19 enumerated harms. 18 U.S.C. § 3511(b)(2). Consistent with the statutory interpretation adopted

20 by the Second Circuit at the Government’s suggestion in Doe, 549 F.3d at 875-76, the Act

21 expressly places the burden of persuasion on the Government, stating that the district court shall

22 issue a nondisclosure order if it determines “that there is reason to believe” that the absence of a

23 nondisclosure order may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(3).

24

In further accordance with Doe, 549 F.3d at 884, the Act modifies § 3511(b) by repealing

25 the provision (formerly in § 3511(b)(2)-(3)) that gave conclusive effect to good-faith

26 certifications by specified officials of certain harms. See H.R. Rep. No. 114-109, at 24 (“This

27 section repeals a provision stating that a conclusive presumption in favor of the Government

28 shall apply where a high-level official certifies that disclosure of the NSL would endanger

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1 national security or interfere with diplomatic relations.”). The Act also repeals the provision

2 (formerly in § 3511(b)(3)) under which an NSL recipient who unsuccessfully challenged a

3 nondisclosure requirement a year or more after the issuance of the NSL was obligated to wait

4 one year before again seeking judicial relief.

5

2. The Act’s Amendments To 18 U.S.C. § 2709

6

The USA FREEDOM Act also amends 18 U.S.C. § 2709(b) and (c) – the prior versions

7 of which, again, plaintiff challenged on their face – and adds new subsection (d).

8

Section 502(a) of the Act replaces the former provisions of 18 U.S.C. § 2709(c). As

9 revised by the Act, § 2709(c) now expressly requires the Government to provide the NSL

10 recipient with notice of the right to judicial review in order for the prohibition on disclosure to 11 apply, thus further codifying Doe’s reciprocal notice procedure. 18 U.S.C. § 2709(c)(1)(A).4

12

The Act also adds § 2709(d), which provides that an NSL or a nondisclosure requirement

13 accompanying an NSL shall be subject to judicial review under § 3511 and that an NSL shall

14 include notice of the availability of judicial review. 18 U.S.C. § 2709(d)(1), (2); see H.R. Rep.

15 No.14-109, at 25.

16

ARGUMENT

17

The USA FREEDOM Act’s amendments moot plaintiff’s Administrative Procedure Act

18 challenge to alleged disclosure restrictions on data concerning national security process

19 described in the January 2014 DAG Letter. And, for the reasons described in the Government’s

20 partial Motion to Dismiss, any remaining challenges to nondisclosure obligations stemming from

21 FISA process should be dismissed in favor of resolution in the FISC. The USA FREEDOM

22 Act’s amendments also moot any First Amendment facial overbreadth challenges to FISA and

23 the NSL statutes, and moreover strengthen the amended NSL nondisclosure and judicial review

24

25 4 Section 501(a) of the Act also amends 18 U.S.C. § 2709(b)(1) to authorize NSLs only when a

26

specified FBI official “us[es] a term that specifically identifies a person, entity, telephone number, or account as the basis for [the NSL].” As the House Report explains, this section

27 prohibits the use of NSL authorities “without the use of a specific selection term as the basis for

the NSL request,” and “specifies that for each NSL authority, the government must specifically

28 identify the target or account.” H.R. Rep. No. 114-109, at 24.

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1 provisions in 18 U.S.C. §§ 2709 and 3511 against any facial challenge. These issues are

2 discussed in turn below.

3

I. Plaintiff’s Administrative Procedure Act Challenge to the January 2014 DAG

4

Letter Is Moot.

5

Plaintiff purports to challenge the DAG Letter under the APA. See Compl. ¶ 44; see also

6 Hr’g Tr. at 16:15-16, ECF No. 64 (plaintiff’s counsel: “We are questioning the validity of the

7 DAG Letter.”). But even if the DAG Letter were properly subject to APA challenge (which

8 defendants have explained it is not), the letter has now been superseded by provisions of the

9 USA FREEDOM Act that set forth bands of aggregate data that may lawfully be disclosed by

10 recipients of national security legal process. The DAG Letter therefore has no further relevance

11 to Twitter, and certainly cannot be said to cause Twitter any continuing injury (assuming, that it

12 caused injury, which it did not; see Defendants Mem. of Law in Support of its Motion to

13 Dismiss, ECF No. 28, 10-13; Reply, ECF No. 57, 4-7). Plaintiff’s APA claim therefore does not

14 present a live case or controversy at this time. See Diffenderfer v. Cent. Baptist Church of

15 Miami, Fla., 404 U.S. 412, 414 (1972) (court must consider the “law as it now stands, not as it

16 stood” previously).

17

The DAG Letter described two options for public reporting by recipients of national

18 security legal process. The USA FREEDOM Act includes four reporting options, which are

19 modeled on the DAG Letter but provide additional options for more detailed reporting by

20 recipients of FISA orders, NSLs, and other such process, and contain different provisions

21 relating to the timing of reporting certain data. These statutory options displace any legal effect

22 plaintiff (incorrectly) attributed to the DAG Letter; plaintiff’s challenge to that letter is therefore

23 moot. Cf. Bullfrog Films v. Wick, 959 F.2d 778, 780-91 (9th Cir. 1992) (“Because the legislation

24 has supplanted [the challenged] parts of the regulations, we dismiss the appeal on these issues as

25 moot.”); Stratman v. Leisnoi, 545 F.3d 1161, 1172 (9th Cir. 2008) (in public lands case, holding

26 “the subsequent action of Congress makes the propriety of the underlying decision irrelevant,

27 even if the underlying decision might have transgressed the intent of Congress.”); NRDC v. U.S.

28 Nuclear Regulatory Comm’n, 680 F.2d 810, 813-14 & n.8 (D.C. Cir. 1982) (challenge to interim

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1 rule for failure to abide by notice and comment requirements mooted by issuance of final rule

2 with notice and comment).

3

In short, even if one assumes that the DAG Letter ever set forth any affirmative

4 constraints on disclosures – which it did not – the DAG Letter has plainly been superseded by

5 the statutory provisions of the Act. Any action by this Court to invalidate, rescind, or amend the

6 DAG Letter would afford no relief to plaintiff.

7

As noted above, the draft Report that plaintiff wishes to publish (previously submitted as

8 an exhibit to the Complaint) does not conform to the new reporting options as described under

9 the Act (and subsequently declassified by the DNI). The proposed Report still contains

10 information that remains properly classified SECRET pursuant to Executive Order 13,526,

11 because disclosure of portions of the Report reasonably could be expected to cause serious

12 damage to national security. See Executive Order 13,526; September 9, 2014 Letter from James 13 A. Baker to counsel for plaintiff, Compl., Exh. 5.5 Because the draft Report not consistent with

14 the options set out in the Act and contains still-classified information, that classified information

15 cannot be lawfully disclosed pursuant to the USA FREEDOM Act, and its disclosure is further

16 prohibited by any applicable orders of the FISC or directives supervised by that Court, any other

17 applicable statute, or any applicable nondisclosure agreements.

18

The mootness of the DAG Letter further supports the Government’s argument that this

19 Court should dismiss plaintiff’s claims related to any orders of the FISC and FISA. For the

20 reasons described in the Government’s partial Motion to Dismiss memoranda (Defs.’ Mem.,

21 ECF No. 28, at 13-20; Defs.’ Reply, ECF No. 57, at 9-14), to the extent plaintiff challenges any

22 nondisclosure requirements that may have accompanied orders issued by the FISC or directives

23 issued in accordance with FISA and under the FISC’s supervision, plaintiff’s challenge puts at 24 issue the scope, meaning, and legality of matters that a coordinate court of Article III judges is

25

26

5 On November 17, 2014, the Government provided plaintiff with an unclassified version of the draft Report, with all classified information redacted. See Unclassified Draft Report, ECF No.

27 21-1. Disclosure of some of the redacted information may be prohibited by any applicable

orders of the FISC, any directives issued pursuant to the FISA, by statute, and/or by applicable

28 nondisclosure agreements.

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1 entrusted to administer. The Government thus explained in its Motion to Dismiss briefs why this

2 Court should decline to exercise jurisdiction over plaintiff’s Declaratory Judgment Act claim

3 related to such FISC orders, FISA directives, or the FISA itself, and should instead defer to the

4 FISC to consider those questions in the first instance. This basis for dismissal in the

5 Government’s pending motion has not changed.

6

II. Plaintiff’s Facial First Amendment Overbreadth Challenges to FISA and the

7

NSL Statutes Are Moot.

8

Plaintiff’s apparent claims that restrictions on its disclosures drawn from FISA6 or the

9 NSL statutes are facially unconstitutional as overbroad (Compl. ¶¶ 46, 49) are now also moot

10 because, as discussed above, the USA FREEDOM Act amended both of those statutes in relevant

11 part.

12

“The First Amendment doctrine of substantial overbreadth is an exception to the general

13 rule that a person to whom a statute may be constitutionally applied cannot challenge the statute

14 on the ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491

15 U.S. 576, 581 (1989). However, the rule is limited, and “overbreadth analysis is inappropriate if

16 the statute being challenged has been amended or repealed.” Id. at 582.

17

The versions of FISA and the NSL statutes that the plaintiff challenged are no longer in

18 effect, and so they will not chill anyone’s future First Amendment rights. For example, the

19 “FISA secrecy provision[]” plaintiff identified in its Complaint (Compl. ¶ 45), 50 U.S.C.

20 § 1805(c)(2)(B), and any others it chose not to identify, must now be construed in light of the

21 new aggregate data disclosure provisions of FISA, id. § 1874(a). There is therefore no reason to

22 permit an overbreadth challenge to the prior provisions of FISA that, for example, authorized or

23 instructed the FISC to require secrecy concerning its orders under certain circumstances. See

24 Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1031-32 (9th Cir. 2006)

25 (amendments to city ordinances had rendered facial challenges to those ordinances moot); Reyes

26 v. City of Lynchburg, 300 F.3d 449, 452-53 (4th Cir. 2002) (district court properly dismissed as

27 6 To the extent plaintiff challenges FISA as applied, as discussed supra and in defendants’ prior briefing, the Court should decline to exercise jurisdiction over such claims so that they may be
28 considered by the FISC in the first instance.

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1 moot overbreadth challenge to ordinance since ordinance had been repealed); Stephenson v.

2 Davenport Comty. Sch. Dist., 110 F.3d 1303, 1312 (8th Cir. 1997) (facial overbreadth challenge

3 to school district’s regulation prohibiting gang symbols moot where district amended regulation).

4

III. The USA FREEDOM Act Reinforces the Constitutionality of the NSL Statutes.

5

The USA FREEDOM Act’s amendments not only moot plaintiff’s challenges to the prior

6 statutory provisions challenged in the Complaint, but even if those challenges were to proceed,

7 the Act removes any doubt about the facial constitutionality of the NSL nondisclosure provisions

8 and standards of judicial review in 18 U.S.C. §§ 2709 and 3511, as they now stand. The new law

9 makes clear that the NSL provisions incorporate a constitutionally adequate standard of judicial

10 review, and the amended NSL nondisclosure requirements satisfy even strict scrutiny.

11

In In re NSL, 930 F. Supp. 2d 1064, 1077-78 (N.D. Cal. 2013) (Illston, J.), appeal

12 docketed, No. 13-15957 (9th Cir.), the district court faulted the NSL statutes because they did not

13 include the procedures prescribed by the Second Circuit in Doe (and the court did not believe it

14 could impose those procedures, id. at 1080-81). The Government respectfully disagrees with and

15 has appealed that ruling.7 Regardless, Congress has now corrected any constitutional deficiency

16 by codifying the Doe procedures. Indeed, the same judge of this Court who held the statute

17 unconstitutional found the Doe procedures to be constitutional as applied in subsequent cases.8

18 The Doe procedures satisfy even the stringent procedural safeguards in Freedman v. Maryland,

19 7 Like this Court, the Ninth Circuit directed the parties in the pending NSL-related appeals to
20 brief the impact of the USA FREEDOM Act. The Government’s brief is available on the Court
21 of Appeals’ website. See “Supplemental Briefing by government in 13-15957 & 13-16731 and 13-16732 (made public by 07/15/15 order),” available at
22 http://cdn.ca9.uscourts.gov/datastore/general/2015/07/15/13-
23 15957%20dkt%2097%20Supp%20Brief.pdf (last visited July 17, 2015).

24 8 See In re Matter of NSLs, Order Denying Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13cv1165-SI (N.D. Cal. August 12, 2013) (enforcing 2 NSLs), appeal docketed,

25 No. 13-16732 (9th Cir.); In re Matter of NSLs, Order Denying Petition to Set Aside, Denying

26

Motion to Stay, and Granting Cross-Petition to Enforce, No. 13mc80089-SI (N.D. Cal. August 12, 2013) (enforcing 2 NSLs), appeal docketed, No. 13-16731 (9th Cir.); In re NSLs, Order

27 Denying Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13mc80063-SI (N.D.

Cal. May 28, 2013) (Amended Order for Public Release enforcing 17 NSLs); In re NSLs, Order,

28 No. 13mc80063-SI (N.D. Cal. May 23, 2013) (enforcing 2 NSLs).

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1 380 U.S. 51 (1965), and they have now been codified by the USA FREEDOM Act. As

2 discussed below, the statutory amendments also clarify the standard of judicial review, which

3 likewise conforms to constitutional requirements.

4

A. The Amended Standard of Review is Constitutional

5

The USA FREEDOM Act amended the NSL statute’s standard of judicial review,

6 rendering even more clear that this challenged provision is constitutional. As the Government

7 explained in its initial briefing, the Second Circuit in Doe properly interpreted the standard of

8 review in the prior § 3511(b) as requiring the Government “to persuade a district court that there

9 is a good reason to believe that disclosure may risk one of the enumerated harms, and that a

10 district court, in order to maintain a nondisclosure order, must find that such a good reason

11 exists.” Doe, 549 F.3d at 875-76 (emphasis added).

12

Congress left Doe’s interpretation of the “standard of proof” (Microsoft Corp. v. i4i Ltd.

13 Partnership, 131 S. Ct. 2238, 2245 (2011)) undisturbed when it revised § 3511(b), changing the

14 statutory language only by bringing it into closer alignment with Doe’s holding regarding the

15 burden of persuasion. “Congress is presumed to be aware of an administrative or judicial

16 interpretation of a statute and to adopt that interpretation when it re-enacts a statute without

17 change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). For example, in United States v. Lincoln,

18 the Ninth Circuit observed that it had previously interpreted a statutory definition of “victim” as

19 including the United States, so when Congress amended that definition and did not exclude the

20 United States, the Court of Appeals “inferred that Congress adopted the judiciary’s

21 interpretation.” 277 F.3d 1112, 1114 (9th Cir. 2002). So too here. By not changing the standard

22 of proof, Congress implicitly ratified Doe’s interpretation of it. Further underscoring the

23 evidentiary showing the Government must make, 18 U.S.C. § 3511(b)(2) now explicitly requires

24 the Government’s application for a nondisclosure order to include a certification from a specified

25 Government official that contains “a statement of specific facts” showing that the absence of a

26 prohibition on disclosure may result in an enumerated harm.

27

With the USA FREEDOM Act, Congress also eliminated a provision of the NSL statute

28 that allowed certain certifications by certain senior officials to be “conclusive” in judicial

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1 proceedings in the absence of bad faith. See 18 U.S.C. § 3511(b)(2)-(3) (2012). The amended

2 statute eliminates this provision, see 18 U.S.C. § 3511(b)(3); H.R. Rep. No. 114-109, at 24, and

3 thereby eliminates any related constitutional concern.

4

Thus, if plaintiff’s facial challenge to the pre-USA FREEDOM Act standard of judicial

5 review of NSLs at 18 U.S.C. § 3511 is not dismissed as moot, the recent amendments reinforce

6 the constitutionality of the challenged provision.

7

B. The Amended Statute Satisfies the Procedural Requirements of Freedman v.

8

Maryland

9

As amended by the USA FREEDOM Act, 18 U.S.C. §§ 2709(c) and 3511(b) satisfy each

10 of the three procedural requirements outlined in Freedman: (1) any administrative restraint that

11 precedes judicial review must be brief; (2) expeditious judicial review must be available; and (3)

12 the Government must bear the burden of initiating judicial review and the burden of proof in

13 court. 380 U.S. at 58-60; see Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002).

14

First, the administrative restraint that precedes judicial review is brief. The Government

15 must notify the NSL recipient of the availability of judicial review when it issues the NSL. See

16 18 U.S.C. § 2709(d)(2). The NSL recipient may initiate judicial review immediately upon

17 receipt of the NSL by filing a petition for review. Id. § 3511(b)(1)(A). Alternatively, the

18 recipient may immediately notify the FBI that it wishes to challenge the nondisclosure

19 requirement, in which case the Government must initiate judicial review within thirty days. Id.

20 § 3511(b)(1)(A)-(B).

21

Second, the amended terms of § 3511(b) make expeditious judicial review available.

22 Amended § 3511(b) specifies that the district court must “rule expeditiously” on a petition by an

23 NSL recipient or an application by the Government. Id. § 3511(b)(1)(C).

24

Third, amended § 3511(b) assigns the Government the burden of initiating judicial

25 review as well as the burden of persuasion in court. As just noted, the Government must initiate

26 judicial review upon the NSL recipient’s request. 18 U.S.C. § 3511(b)(1)(A)-(B). The amended

27 statute also places the burden of persuasion in court on the Government. Even before the recent

28 amendments, the burden of persuasion rested with the Government, as the Second Circuit held in

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1 Doe. See 549 F.3d at 875. But the USA FREEDOM Act amends the relevant statutory language

2 to further clarify the allocation of the burden. Previously, the statute provided that a court could

3 set aside or modify a nondisclosure requirement when the court found that “there is no reason to

4 believe” that disclosure may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(2)-(3)

5 (2012). As amended, the statute provides that a court shall issue a nondisclosure order or

6 extension thereof if the court finds that “there is reason to believe” that disclosure may result in

7 one of the enumerated harms. 18 U.S.C. § 3511(b)(3) (emphasis added). This new language

8 places the onus on the Government to make the requisite showing. And as the Government

9 explained in its earlier briefing, the “reason to believe” is properly read, as the Second Circuit

10 read it, as a good reason to believe. See Def. Mem. in Support of Mot. to Dismiss (ECF No. 28)

11 at 21-24.

12

Accordingly, and again assuming that plaintiff’s facial challenge to the pre-USA

13 FREEDOM Act provisions of 18 U.S.C. §§ 2709 & 3511 authorizing issuance and judicial

14 review of NSLs is not dismissed as moot, the recent amendments reinforce the constitutionality

15 of those provisions as they read today.

16

C. NSL Nondisclosure Requirements Satisfy Strict Scrutiny

17

Finally, the recent amendments in the USA FREEDOM Act to the NSL nondisclosure

18 requirements under 18 U.S.C. § 2709 underscore that these provisions are narrowly tailored to

19 serve a compelling government interest. Thus, even if strict scrutiny applies to the nondisclosure 20 requirement, it passes muster.9

21

First, plaintiff complains that an NSL nondisclosure requirement applies “not only to the

22 content of the request but to the fact of receiving an NSL.” Compl. ¶ 46. Similarly, the In re

23 NSL district court stated that in some instances a recipient may be able to disclose the fact that it

24 9 The Government has not yet moved for summary judgment on or dismissal of plaintiff’s

25 challenge to NSL nondisclosure requirements under 18 U.S.C. § 2709, and so the parties have

26

not briefed the appropriate standard of review. However, because the Court directed the parties to address the effect of the USA FREEDOM Act “both as to the pending partial motion to

27 dismiss and as to the ultimate claims for relief in Plaintiff’s Complaint,” Order at 2, ECF No. 69,

the Government discusses the Act’s effect on plaintiff’s claim for relief against § 2709 though

28 that provision was not discussed in defendants’ pending Motion to Dismiss..

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1 had received an NSL without risking any of the statutory harms. 930 F. Supp. 2d at 1076. The

2 statutory amendments alleviate this concern by codifying and expanding the procedure by which

3 NSL recipients may publicly disclose aggregated band data about the number of NSLs and other

4 national security process they have received. See USA FREEDOM Act § 603(a); 50 U.S.C.

5 § 1874(a). Furthermore, the amendments allow the Government to agree to other disclosures in

6 certain circumstances. See 50 U.S.C. § 1874(c); 18 U.S.C. § 2709(c)(2)(A)(iii).

7

Second, plaintiff alleges that an NSL nondisclosure requirement is “unlimited in

8 duration.” Compl. ¶ 46. See also In re NSL, 930 F. Supp. 2d at 1076-77 (stating that in some

9 instances the prior statute could result in NSL nondisclosure requirements that continue in force

10 “longer than necessary to serve the national security interests at stake.”). The Second Circuit

11 noted in Doe that the judicial review provisions in § 3511(b) already enabled courts to modify or

12 set aside a nondisclosure requirement that is no longer necessary. 549 F.3d at 884 n.16.

13 Congress has now gone further by directing the Attorney General to adopt procedures for

14 periodically reviewing nondisclosure requirements issued pursuant to amended § 2709 to assess

15 whether the facts supporting nondisclosure continue to exist. See USA FREEDOM Act

16 § 502(f)(1). Moreover, Congress has removed the provision that precluded certain NSL

17 recipients from challenging a nondisclosure requirement more than once per year. See id. These

18 changes minimize the possibility that NSL nondisclosure requirements will remain in effect after

19 the need for them has lapsed.

20

Here again, the USA FREEDOM Act enacted changes that reinforce the lawfulness of the

21 NSL requirements in the face of plaintiff’s challenge in this case, to the extent it is not dismissed

22 as moot.

23

24

25

26

27

28

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1

CONCLUSION

2

For all of the foregoing reasons, the USA FREEDOM Act moots plaintiff’s challenge to

3 alleged restrictions on the disclosure of data concerning national security process as described in
4

5 the DAG Letter of January 2014, likewise moots plaintiff’s facial challenges to the FISA and the

6 NSL statutes, and, moreover, reinforces their lawfulness.

7 Dated: July 17, 2015 8 9

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

10

MELINDA HAAG

11

United States Attorney

12

ANTHONY J. COPPOLINO

Deputy Branch Director 13

14

/s/ Steven Y. Bressler

STEVEN Y. BRESSLER

15

Senior Trial Counsel

JULIA A. BERMAN

16

Trial Attorney

17

U.S. Department of Justice

Civil Division, Federal Programs Branch

18

P.O. Box 883

19

Washington, D.C. 20044 Telephone: (202) 305-0167

20

Facsimile: (202) 616-8470

Email: Steven.Bressler@usdoj.gov

21

22

Attorneys for Defendants

23

24

25

26

27

28

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Defendants’ Supplemental Brief Regarding the USA FREEDOM Act

 
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1

2
3 Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com
4 Michael A. Sussmann, D.C. Bar No. 433100 (pro hac vice)
5 MSussmann@perkinscoie.com James G. Snell, Bar No. 173070
6 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549
7 (pro hac vice) HBerlin@perkinscoie.com
8 Amanda L. Andrade, D.C. Bar No. 1010948 (pro hac vice)
9 AAndrade@perkinscoie.com PERKINS COIE LLP
10 3150 Porter Drive Palo Alto, CA 94304-1212
11 Tel: 650-838-4300 Fax: 650-838-4350
12 Attorneys for Plaintiff
13 Twitter, Inc.

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 OAKLAND DIVISION
17

18 TWITTER, INC.,
19 Plaintiff,
20 v.
21 LORETTA E. LYNCH, Attorney General
22 of the United States, et al.,

23

Defendants.

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25

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1

2

Page

3

Contents

4 I. II.
5 III.

INTRODUCTION .............................................................................................................. 1 SUMMARY OF RELEVANT CHANGES IN USA FREEDOM ACT............................. 1 ARGUMENT ...................................................................................................................... 2

6

A. Effect of the USA FREEDOM Act on the Pending Partial Motion to

Dismiss.................................................................................................................... 3

7

1. The USA FREEDOM Act Does Not Affect Defendants’

8

Pending Partial Motion to Dismiss With Regard to Twitter’s APA Challenge to the DAG Letter ............................................................. 3

9

2. The USA FREEDOM Act Does Not Affect Defendants’

Pending Partial Motion to Dismiss With Regard to Defendants’

10

Request to Have Twitter’s FISA-related Claims Transferred to

the FISC ...................................................................................................... 4

11

3. The USA FREEDOM Act Does Not Affect Defendants’

12

Pending Partial Motion to Dismiss With Regard to Defendants’ Request for the Court to Defer Consideration of Certain NSL-

13

related Issues ............................................................................................... 6

B. Effect of the USA FREEDOM Act on the Ultimate Claims for Relief

14

in Twitter’s Complaint ............................................................................................ 6

15

1. The USA FREEDOM Act Should Not Impact Twitter’s Challenge to the DAG Letter Under the APA ............................................ 6

16

2. The USA FREEDOM Act Does Not Impact Twitter’s

Challenge to FISA Reporting Under the First Amendment........................ 7

17

3. The USA FREEDOM Act Changes, But Does Not

18

Significantly Impact or Moot, Twitter’s Challenge to Section 2709 Under the First Amendment and the Principle of

19

Separation of Powers................................................................................... 7

IV. CONCLUSION ................................................................................................................. 11

20

21

22

23

24

25

26

27

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1

I. INTRODUCTION

2

In this action, Twitter seeks declaratory and injunctive relief from Defendants’

3 unconstitutional restrictions on Twitter’s speech. (Dkt. No. 1.) Defendants have filed a

4 Partial Motion to Dismiss, and on May 5, 2015, this Court heard arguments on that motion.

5 On June 2, 2015, President Obama signed into law the Uniting and Strengthening America

6 by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (“USA

7 FREEDOM Act” or “USAFA”), Pub. L. No. 114-23, 129 Stat. 268 (2015). Defendants and

8 Twitter separately filed Notices Regarding Enactment of the USA Freedom Act. (Dkt. Nos.

9 67, 68.) On June 11, 2015, this Court directed the parties to “file supplemental briefing on

10 the effect of this legislation, both as to the pending partial motion to dismiss and as to the

11 ultimate claims for relief in Plaintiff’s Complaint.” (Dkt. No. 69.) As explained below, the

12 USA Freedom Act has no effect on the appropriate disposition of Defendants’ Partial Motion

13 to Dismiss, and, while it is relevant to the merits of Twitter’s constitutional claims, it does

14 not alter the ultimate conclusion that the Defendants’ conduct and the challenged statutory

15 provisions violate the First Amendment.

16

II. SUMMARY OF RELEVANT CHANGES IN USA FREEDOM ACT

17

The USAFA contains two provisions that are relevant to this case. First, Section 603

18 of the USAFA amends Title VI of the Foreign Intelligence Surveillance Act of 1978

19 (“FISA”) (50 U.S.C. §§ 1871 et seq.), by adding at the end the following new section: “Sec.

20 604. Public Reporting by Persons Subject to Orders.” This section provides four additional

21 options that a “person subject to a nondisclosure requirement accompanying [a FISA] order

22 or directive . . . or a national security letter may, with respect to such order, directive, or

23 national security letter, publicly report.” USAFA § 604(a). Exhibit A contains a table that

24 summarizes these four new options and compares them with the four preexisting options

25 announced by the Defendants as available to a “person” subject to a national security legal

26 process-related nondisclosure requirement. See Letter from James M. Cole, Deputy Att’y

27 Gen., U.S. Dep’t of Justice, to General Counsels for Facebook, Inc., Google, Inc., LinkedIn

28

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1 Corp., Microsoft Corp., and Yahoo! Inc. (Jan. 27, 2014), available at

2 http://www.justice.gov/iso/opa/resources/366201412716018407143.pdf (“DAG Letter”).

3

Second, Section 502(g) of the USAFA amends the judicial review procedures at 18

4 U.S.C. § 3511(b) by allowing for judicial review of an NSL nondisclosure requirement if a

5 recipient who wishes to have a court review the requirement notifies the government of that 6 wish.1 18 U.S.C. § 3511(b)(1)(A). If a recipient chooses to follow this new procedure and

7 notify the government, the government must then apply for an order prohibiting disclosure in

8 federal court. Id. § 3511(b)(1)(B). Regardless of how the case is commenced, the

9 government must file a certification from one of various officials presenting specific facts

10 showing that in the absence of a prohibition, the disclosure would result in a danger to

11 national security, a criminal investigation, diplomatic relations, or safety. Id. § 3511(b)(2).

12 As amended, Section 3511 differs from prior law in that it does not require that a good-faith

13 certification be given conclusive effect. As was the case before passage of the USAFA, the

14 recipient of a national security letter remains bound by the nondisclosure requirement for the

15 pendency of that challenge. Id. § 3511(b)(1)(B). In addition, Section 3511 now directs

16 district courts to rule “expeditiously” and “issue a nondisclosure order that includes

17 conditions appropriate to the circumstances” if it determines “there is reason to believe that

18 disclosure of the information subject to the nondisclosure requirement during the applicable

19 time period may result” in any of the conditions in the government’s certification. Id.

20 § 3511(b)(1)(C), (3).

21

III. ARGUMENT

22

This Court directed supplemental briefing with regard to two related issues: “the

23 effect of [the USAFA], both as to [1] the pending partial motion to dismiss and [2] as to the

24 ultimate claims for relief in Plaintiff’s Complaint.” (Dkt. No. 69.) Twitter addresses these

25 two issues in turn.

26 1 Under the pre-USAFA judicial review procedures, a recipient did not have the option to
27 commence a challenge by notifying the government, and was instead obligated to petition for relief directly with a federal district court. See former 18 U.S.C. § 3511(a) (describing procedures for
28 challenging NSL nondisclosure obligation) (amended 2015).

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1 A. Effect of the USA FREEDOM Act on the Pending Partial Motion to Dismiss

2

The USAFA has no impact on the issues before the Court in Defendants’ pending

3 motion to dismiss “pertaining to the Administrative Procedure Act, 5 U.S.C. § 551 et seq.

4 [(“APA”)], transfer of FISA-related claims to the Foreign Intelligence Surveillance Court,

5 and deferring consideration of certain issues pertaining to national security letters.” (Dkt.

6 No. 68.)

7

1. The USA FREEDOM Act Does Not Affect Defendants’ Pending Partial

Motion to Dismiss With Regard to Twitter’s APA Challenge to the DAG

8

Letter

9

Twitter’s APA challenge to the DAG Letter is based on Defendants’ failure to follow

10 the procedural requirements for promulgating substantive rules in issuing the DAG Letter. In

11 their Partial Motion to Dismiss, Defendants argue that the DAG Letter does not represent

12 final agency action because it does not impose any legal obligations. As explained in

13 Twitter’s prior briefing, that is incorrect. The government has informed the FISC that the

14 DAG Letter “define[s] the limits of permissible reporting,” Twitter Compl. Ex. 2, and the

15 government relied exclusively on the DAG Letter in its September 9, 2014 letter to Twitter

16 denying Twitter’s request to publish in full its transparency report. Twitter Compl. Ex. 5

17 (“Baker-Sussmann Letter”) (noting Defendants’ position that Twitter’s draft transparency

18 report is “inconsistent with the January 27th framework [DAG Letter]”) (Dkt. No. 1-1, at 15).

19

With passage of the USAFA, there currently are eight different lawful options for

20 communications providers such as Twitter to publicly report information about national

21 security legal process they have received (if any). In the summer of 2013, the government

22 declassified and thereby, of its own accord, made permissible two options for approved

23 speech (“Summer 2013 Options”). See DAG Letter, at 1-2. In January 2014, as part of its

24 settlement of litigation with Facebook, Google, LinkedIn, Microsoft and Yahoo!, the

25 government declassified and made permissible two more options (i.e., Options One and Two 26 of the DAG Letter). See id., at 2-3.2 The USAFA in no way purports to re-classify or

27 2 Each of the four options created under the USAFA are distinct from the Summer 2013
28 Options and the options in the DAG Letter. See Ex. A.

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1 otherwise prohibit the speech approved by the government in 2013 and 2014. The

2 government thus has no basis now to say, in essence: “That speech you were allowed to

3 speak the day before passage of the USAFA you can no longer lawfully speak after passage 4 of the USAFA.”3

5

Since the DAG Letter was not superseded by the USAFA, passage of the USAFA

6 likewise did not moot Twitter’s challenge to the DAG Letter. If, as Twitter argues, the DAG

7 Letter was a substantive rule before the enactment of the USAFA, it is no less of a rule now.

8 To the extent that the USAFA allows reporting options that the DAG Letter does not, that is

9 not a basis for concluding that the DAG Letter is not a rule under the APA. Therefore,

10 Twitter’s allegation in the complaint that the DAG Letter violates the APA is not impacted

11 by passage of the USAFA, nor is Defendants’ argument for dismissing that allegation. The

12 parties’ dispute about the DAG Letter should continue to receive this Court’s attention.

13

2. The USA FREEDOM Act Does Not Affect Defendants’ Pending Partial

Motion to Dismiss With Regard to Defendants’ Request to Have Twitter’s

14

FISA-related Claims Transferred to the FISC

15

In their Partial Motion to Dismiss, Defendants argue that the FISC is a better forum to

16 address Twitter’s claims regarding nondisclosure provisions in FISA, arguing that “settled

17 principle[s] of comity and orderly judicial administration” require the FISC to determine the

18 scope and legality of its orders. (Dkt. No. 28, at 23-29.) Twitter responded that the United

19 States District Court for the Northern District of California is the correct and preferred venue

20 because judicial economy would not favor splitting this case, the FISC offers a severe

21 asymmetry in practice and access to information in its proceedings, and the American legal

22 system strongly disfavors closed courtrooms without compelling justification and abhors

23 unequal treatment of parties by a decision-maker. (Dkt. No. 34, at 15-19; May 5, 2015

24 Hearing Tr., at 36-37.) As Twitter noted in its Opposition to Defendants’ Partial Motion to

25 Dismiss, the FISC is “a nonpublic court, with certain recent exceptions for public filing of

26 3 Put another way, today a communications provider can avail itself of one of the Summer
27 2013 Options, one of the options in the DAG Letter, or one of the USAFA options, and the government has no basis to say that it is no longer lawful to use one of the Summer 2013 Options or
28 DAG Letter options.

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1 pleadings and other documents, that offers no ability for the public or any nonparty to view

2 FISC proceedings. The FISC offers far greater opportunity than a district court for ex parte

3 and classified hearings that are closed to any party but the government.” (Dkt. No. 34, at 17.)

4 Defendants cited no provision of the USAFA allegedly affecting these claims in their Notice

5 Regarding Enactment of the USA FREEDOM Act, and there is no reason why passage of the 6 USAFA should impact this Court’s decision on this issue.4

7

Furthermore, the FISC recently rejected an opportunity to assert itself as the preferred

8 forum for the interpretation of FISA, considering a U.S. District Court to be a suitable and

9 appropriate venue for adjudicating constitutional questions implicated by FISA. In an

10 opinion released subsequent to argument on Defendants’ Partial Motion to Dismiss (and

11 subsequent to passage of the USAFA), the FISC sua sponte dismissed a motion to intervene

12 from parties seeking to bring a “challenge on Fourth Amendment grounds [to] the lawfulness

13 of the bulk production of telephone metadata under Section 501 of FISA” because “[t]he

14 parties and issues involved . . . extensively overlap with a suit previously commenced in the

15 United States District Court for the District of Columbia.” In re Application of Fed. Bureau

16 of Investigation for Order Requiring Prod. of Tangible Things, No. BR 15-75, In re Motion

17 in Opp. to Gov’t’s Request to Resume Bulk Data Collection Under Patriot Act Section 215,

18 No. Misc. 15-01, combined slip. op., at 4-5 (filed FISA Ct. June 29, 2015). The FISC

19 dismissed the motion based on comity, “in order to conserve judicial resources and avoid

20 inconsistent judgments,” and in accordance with the “first-to-file” rule, and it did not raise in

21 its decision any of the factors relied upon by Defendants in their Partial Motion to Dismiss to

22 argue that Twitter’s FISA-related claims are best considered by the FISC. Id. at 5-6.

23

24

25

26

4 Twitter notes that Section 401 of the USAFA provides for participation of amicus in FISC

proceedings under certain circumstances. 50 U.S.C. § 1803(i). However, that change in FISC 27 practice does not affect Defendants’ Partial Motion to Dismiss because the possibility of an amicus

participant will not lessen the burdens and restrictions on a communications provider that is litigating 28 in the FISC.

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1

3. The USA FREEDOM Act Does Not Affect Defendants’ Pending Partial

Motion to Dismiss With Regard to Defendants’ Request for the Court to

2

Defer Consideration of Certain NSL-related Issues

3

In their Partial Motion to Dismiss, Defendants argue that this Court should defer any

4 decision on Twitter’s challenge to the statutory standard of review applicable to an NSL

5 nondisclosure order until the Ninth Circuit Court of Appeals rules on this issue, (Dkt. No. 28,

6 at 30), thereby effectively bifurcating this case. Twitter responded that the balance of

7 interests do not favor deferral when Twitter’s First Amendment rights are being suppressed

8 and it is by no means certain that the Ninth Circuit will resolve its cases in a way that is

9 dispositive of this controversy. Defendants cited no provision of the USAFA in their Notice

10 Regarding Enactment of the USA FREEDOM Act that affects their request for deferral of

11 decision-making, and there is no reason why passage of the USAFA should impact this

12 Court’s decision on this issue.

13 B. 14 15

Effect of the USA FREEDOM Act on the Ultimate Claims for Relief in Twitter’s Complaint
1. The USA FREEDOM Act Should Not Impact Twitter’s Challenge to the DAG Letter Under the APA

16

As discussed in Section III.A.1, infra, the DAG Letter remains operative after passage

17 of the USAFA, inasmuch as it continues to set forth available options for provider reporting

18 regarding receipt of national security legal process and it remains Defendants’ only stated 19 basis for denying Twitter’s request to publish its transparency report.5 Moreover, passage of

20 the USAFA has not diminished the need for a judicial determination regarding the

21 circumstances under which Defendants can lawfully announce restrictions regarding

22 acceptable speech on national security-related issues.

23

24

25

5 See Baker-Sussmann Letter, at 1 (“As you know, on January 27, 2014, the Department of

Justice provided multiple frameworks for certain providers and others similarly situated to report 26 aggregated data . . . . Twitter’s proposed transparency report seeks to publish data . . . that go beyond

what the government has permitted other companies to report. . . . This is inconsistent with the 27 January 27th framework . . . .”). Upon information and belief, Defendants consider the USAFA to be

permissive, not to be or represent a prohibition on Twitter’s publication of its transparency report, and 28 therefore not an additional basis for prohibiting Twitter’s speech.

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1

2. The USA FREEDOM Act Does Not Impact Twitter’s Challenge to FISA

Reporting Under the First Amendment

2 While the USA FREEDOM Act establishes four additional reporting options, it does

3 not amend any of the speech-related restrictions in FISA from which Twitter is seeking relief

4 in this proceeding. In its complaint, Twitter alleged that:

5

1) The FISA statute and Espionage Act, along with other nondisclosure authorities,

6

do not prohibit providers like Twitter from disclosing aggregate reporting

statistics;

7

2) To the extent that Defendants read provisions of the FISA statute as prohibiting

8

Twitter from publishing aggregate reporting statistics, those provisions are

unconstitutional because:

9

a) They constitute a prior restraint and content-based restriction on speech in

10

violation of Twitter’s right to speak truthfully about matters of public concern;

and

11

b) The restriction is not narrowly tailored to serve a compelling governmental

12

interest, and no such interest exists; and

13

3) The FISA secrecy provisions are unconstitutional as applied to Twitter because:

14

a) Defendants have imposed an unconstitutional prior restraint, content-based

restriction, and viewpoint discrimination in violation of Twitter’s right to

15

speak truthfully about matters of public concern; and

16

b) This prohibition imposed by Defendants on Twitter’s speech is not narrowly

tailored to serve a compelling governmental interest.

17

18 (Dkt. No. 1, ¶¶ 49-50.) While the USAFA provides four additional reporting options, see Ex.

19 A, those additional options do not alter Twitter’s First Amendment claims. Indeed, the

20 USAFA amendments allow only for the publication of wide bands of aggregate data, and

21 provide no assurance to Twitter that it can publish its draft transparency report. (Dkt. No. 1-

22 1, Ex. 4.) The USAFA thus leaves Twitter in the same position it was in prior to the

23 legislation, and it is therefore insufficient to remedy Twitter’s constitutional grievances.

24

3. The USA FREEDOM Act Changes, But Does Not Significantly Impact or

Moot, Twitter’s Challenge to Section 2709 Under the First Amendment

25

and the Principle of Separation of Powers

26

In its complaint, Twitter alleged that the NSL nondisclosure provisions of 18 U.S.C.

27 § 2709 are unconstitutional for a number of reasons, including (but not limited to) the fact

28

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1 that the judicial review procedures for NSL nondisclosure orders, codified at 18 U.S.C.

2 § 3511:

3

1) do not meet the procedural safeguards required by the First

4

Amendment because they:

5

a) place the burden of seeking to modify or set aside a

nondisclosure order on the recipient of an NSL;

6 b) do not guarantee that nondisclosure orders imposed prior to

7

judicial review are limited to a specified brief period;

8

c) do not guarantee expeditious review of a request to modify or

9

set aside a nondisclosure order;

10

d) require the reviewing court to apply a level of deference that conflicts with strict scrutiny; and

11 2) restrict a court’s power to review the necessity of a nondisclosure

12

provision in violation of separation of powers principles.

13 (Dkt. No. 1, ¶¶ 46, 48). Unfortunately, many of these failings remain unchanged following

14 amendment, and the revised version of Section 3511 still falls short of what the First

15 Amendment and separation of powers principles require.

16

Although the USAFA may make it easier for an NSL recipient to challenge a

17 nondisclosure order, the recipient still bears the obligation of initiating proceedings by

18 lodging an objection with the government,6 which means that Section 3511 maintains the

19 (unconstitutional) status quo of allowing nondisclosure orders to be of uncertain and,

20 potentially, unlimited duration. Id.7

21

22

6 See 18 U.S.C. § 3511(b)(1).

23

7 One aspect of Twitter’s NSL-related claims that is affected by the USAFA’s revisions to

Section 3511 is Twitter’s assertion in the complaint that the NSL nondisclosure judicial review 24 procedures “do not guarantee expeditious review of a request to modify or set aside a nondisclosure

order.” (Dkt. No. 1, ¶ 46.) As explained in Section II, infra, Section 3511 now requires a court that is 25 considering such a challenge to rule “expeditiously.” However, Section 3511 does not contain any

elaboration as to how “expeditiously” should be interpreted. Moreover, in Freedman v. Maryland, 26 380 U.S. 51 (1965), the Supreme Court held that “[a]ny restraint [on speech] imposed in advance of a

final judicial determination on the merits must similarly be . . . for the shortest fixed period 27 compatible with sound judicial resolution,” 380 U.S. at 59 (emphasis added), and Twitter does not

concede at this juncture that “expeditiously” in the context of a post-USAFA Section 3511 review is 28 sufficient to meet the Freedman standard.

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1

Moreover, Twitter’s complaint alleged that Section 3511 requires the reviewing court

2 to apply a level of deference that does not comport with, and is much more lenient than, strict

3 scrutiny. As Twitter noted in its Opposition to Defendants’ Partial Motion to Dismiss:

4

[A] party who receives such an NSL containing a

nondisclosure requirement and who wishes to speak about an

5

NSL must litigate the validity of the nondisclosure requirement

before speaking. 18 U.S.C. § 3511(b)(1). In other words,

6

while the prior-restraint doctrine recognizes that “a free society

prefers to punish the few who abuse rights of speech after they

7

break the law than to throttle them and all others beforehand,”

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975),

8

Section 2709(c) does the exact opposite.

9 (Dkt. No. 34, at 22.) This remains fundamentally true under the USAFA-revised scheme. As

10 explained above, the most meaningful change to the judicial review procedure is that a court

11 is no longer required to give conclusive effect to the government’s good-faith certification.

12 See Section II, infra. However, Twitter did not explicitly or exclusively rely on that

13 provision when it asserted that the overall scheme was unconstitutional. Moreover, a court is

14 still required to uphold a nondisclosure order if it finds “reason to believe” that disclosure

15 “may result in” a danger to national security, interference with a criminal, counterterrorism,

16 or counterintelligence investigation, interference with diplomatic relations, or danger to the

17 life or physical safety of any person. 18 U.S.C. § 3511(b)(3). In other words, a court is still

18 required to uphold the government’s nondisclosure order if it believes the government’s

19 certification.

20

This revised scheme is similar to what the Second Circuit envisioned in Doe, Inc. v.

21 Mukasey, 549 F.3d 861 (2d Cir. 2008). As Twitter argued in its Opposition to Defendants’

22 Partial Motion to Dismiss, even that process is insufficient to satisfy strict scrutiny:

23

[E]ven assuming that the broad statutory language [of Section

3511] could be read in such a limited way, the Second Circuit’s

24

standard, which appears to be akin to the reasonable-suspicion

standard of the Fourth Amendment, is not sufficient when strict

25

scrutiny is applicable. To be sure, a prohibition on speech

might satisfy strict scrutiny if there were “a good reason . . .

26

reasonably to apprehend a risk” of a very serious harm from

the speech. But even as rewritten by the Second Circuit, the

27

statute does not require that the harm be serious—or even more

than de minimis—only that it be somehow related to a

28

terrorism investigation. That is, it permits speech to be

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1

suppressed upon a determination that there is a risk that it

might lead to some kind of “interference with [an]

2

investigation” that is in some way related to terrorism, no

matter how minimal the interference may be. The statute is not

3

narrowly tailored to promote the interest of national security.

4 (Dkt. No. 34, at 25-26.) The USAFA fails for similar reasons, as it directs courts to uphold

5 nondisclosure requirements when they find “reason to believe” that disclosure will have

6 some impact on national security, public safety, criminal investigations, or diplomatic

7 relations.

8

Because the USAFA did not address key bases in the complaint for Twitter’s

9 challenge to 18 U.S.C. § 2709, and the USAFA continues to prescribe a standard of review

10 for orders under Section 2709 that is not meaningfully different from the one challenged in

11 Twitter’s complaint, Twitter’s NSL-related claims remain valid. Indeed, it remains the case

12 that: (1) the judicial review procedure in Section 3511 violates the First Amendment because

13 it “require[s] the reviewing court to apply a level of deference that conflicts with strict

14 scrutiny,” (Dkt. No. 1, ¶ 46); and (2) the judicial review procedure violates principles of

15 separation of powers because it “impermissibly requires the reviewing court to apply a level

16 of deference to the government’s nondisclosure decisions that conflicts with the

17 constitutionally mandated level of review, which is strict scrutiny.” (Dkt. No. 1, ¶ 48.) These

18 essential constitutional violations are unchanged by the USAFA, and thus Twitter’s claim,

19 although perhaps impacted by the USAFA, is not moot.

20

Twitter also alleged in its complaint numerous challenges to Section 2709 for reasons

21 unrelated to Section 3511’s review procedures,8 and these challenges are not affected by

22

8 See Dkt. No. 1, ¶¶ 46-47 (“The nondisclosure and judicial review provisions of 18 U.S.C.

§ 2709(c) are facially unconstitutional under the First Amendment, including for at least the following 23 reasons: the nondisclosure orders authorized by § 2709(c) constitute a prior restraint and content-

based restriction on speech in violation of Twitter’s First Amendment right to speak about truthful 24 matters of public concern (e.g., the existence of and numbers of NSLs received); the nondisclosure

orders authorized by § 2709(c) are not narrowly tailored to serve a compelling governmental interest, 25 including because they apply not only to the content of the request but to the fact of receiving an NSL

and additionally are unlimited in duration . . . . The nondisclosure provisions of 18 U.S.C. § 2709(c) 26 are also unconstitutional as applied to Twitter, including because Defendants’ interpretation of the

nondisclosure provision of 18 U.S.C. § 2709(c), and their application of the same to Twitter via the 27 DAG Letter, is an unconstitutional prior restraint, content-based restriction, and viewpoint

discrimination in violation of Twitter’s right to speak about truthful matters of public concern. This 28 prohibition on Twitter’s speech is not narrowly tailored to serve a compelling governmental interest,

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1 passage of the USAFA. Therefore, there is no reason why passage of the USAFA should

2 impact this Court’s decision on the larger set of claims challenging Section 2709.

3

IV. CONCLUSION

4

The USA FREEDOM Act does not affect the claims in Defendants’ Partial Motion to

5 Dismiss currently pending before this Court, and does not significantly alter the claims raised

6 by Twitter in the complaint.

7 DATED: July 17, 2015 8 9 10 11 12 13 14 15

Respectfully Submitted,
By: /s/ Michael A. Sussmann Michael A. Sussmann MSussmann@perkinscoie.com Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com James G. Snell, Bar No. 173070 JSnell@perkinscoie.com Hayley L. Berlin HBerlin@perkinscoie.com Amanda L. Andrade AAndrade@perkinscoie.com
Attorneys for Plaintiff Twitter, Inc.

16

17

18

19

20

21

22

23

24

25

26

27 and no such interest exists that justifies prohibiting Twitter from disclosing its receipt (or non-receipt)
28 of an NSL or the unlimited duration or scope of the prohibition.”).

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EXHIBIT A
12

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Exhibit A Comparison of Eight (8) Options for Authorized Provider Transparency Reporting (as of July 2015)

Date Authorized

Summer 20131 Summer 2013

Jan. 27, 20142

Jan. 27, 2014

Option

2013 Agreement 2013 Agreement

Option One

Option Two

DAG Letter Option One

DAG Letter Option Two

Reporting Frequency Unspecified

Unspecified

Semi-Annual

Unspecified

Criminal process, NSLs, FISA orders + accounts targeted

Bands of 1000

Criminal process

Precise number No restrictions

No restrictions

“All national security
process” + selectors targeted4

Bands of 250 starting with 0-249

FISA orders, directives, NSLs + selectors targeted

NSLs + selectors targeted

Bands of 1000 Bands of 1000 starting with 0-999

FISA content orders + selectors targeted

None

Bands of 1000 starting with 0-999 (orders only)

FISA non-content orders + selectors
targeted

None

Bands of 1000 starting with 0-999

June 2, 20153
USAFA Option One
Semi-Annual

June 2, 2015
USAFA Option Two
Semi-Annual

Bands of 1000 starting Bands of 500 starting

with 0-999

with 0-499

Bands of 1000 starting Bands of 500 starting

with 0-999 (orders or with 0-499 (orders or

directives)

directives)

Bands of 1000 starting Bands of 500 starting

with 0-9995

with 0-499

June 2, 2015 June 2, 2015

USAFA

USAFA

Option Three Option Four

Semi-Annual Annual

Bands of 250 Bands of 100

starting with starting with

0-249

0-99

1 Source: DAG Letter, at 1-2. 2 Source: DAG Letter, at 2-3. 3 Source: USA FREEDOM Act § 603(a). 4 DAG Letter Option Two does not appear to include directives. 5 Under USAFA Option One, “customer selectors” pertain to FISA orders issued “pursuant to—[FISA] (i) title IV; (ii) title V with respect to applications described in section 501(b)(2)(B); and (iii) title V with
respect to applications described in section 501(b)(2)(C).” USA FREEDOM Act § 604(a)(1)(F).
13

 
 Case4:14-cv-04480-YGR Document76 Filed08/07/15 Page1 of 12

1 Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com
2 Michael A. Sussmann, D.C. Bar No. 433100 (pro hac vice)
3 MSussmann@perkinscoie.com James G. Snell, Bar No. 173070
4 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549
5 (pro hac vice) HBerlin@perkinscoie.com
6 Amanda L. Andrade, D.C. Bar No. 1010948 (pro hac vice)
7 AAndrade@perkinscoie.com PERKINS COIE LLP
8 3150 Porter Drive Palo Alto, CA 94304-1212
9 Tel: 650-838-4300 Fax: 650-838-4350
10 Attorneys for Plaintiff
11 Twitter, Inc.

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

OAKLAND DIVISION

15

16 TWITTER, INC.,

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17

18

v.

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19 LORETTA E. LYNCH, Attorney General of the United States, et al.,
20 Defendants.
21

No hearing scheduled.

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2

3

Page

4 INTRODUCTION .......................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 1

6

A. The USA FREEDOM Act Does Not and Cannot “Supersede” the DAG

Letter ....................................................................................................................... 1 7

B. Twitter’s FISA Claims Are Unaffected by the USA FREEDOM Act.................... 4 8

1. Defendants Have Not Raised any New Arguments in Support of

9

Their Position that this Court Should Defer to the FISC ............................ 4

10

2. Defendants’ Attack on Twitter’s Overbreadth Argument Lacks

Merit ............................................................................................................ 4 11

C. Twitter’s NSL Claims Remain Valid After the USA FREEDOM Act................... 6 12

1. Twitter's Claims Under Section 2709 Are Not Affected by the

13

USAFA........................................................................................................ 6

14

2. Twitter’s Claim that the NSL Framework Is Unconstitutional

Because of the Judicial Review Process Is Affected by the USAFA,

15

but Remains Valid....................................................................................... 7

16

D. Defendants Fail to Distinguish Between Issues Addressed in Their Pending

Partial Motion to Dismiss and Issues Not Yet Briefed for Consideration

17

and Before the Court ............................................................................................... 8

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

In this action, Twitter seeks declaratory and injunctive relief from Defendants’

3 unconstitutional restrictions on Twitter’s speech. (Dkt. No. 1.) Defendants have filed a Partial

4 Motion to Dismiss, and on May 5, 2015, this Court heard arguments on that motion. On June

5 2, 2015, President Obama signed into law the Uniting and Strengthening America by Fulfilling

6 Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (“USA FREEDOM

7 Act” or “USAFA”), Pub. L. No. 114-23, 129 Stat. 268 (2015). On June 11, 2015, this Court

8 directed the parties to “file supplemental briefing on the effect of this legislation, both as to the

9 pending partial motion to dismiss and as to the ultimate claims for relief in Plaintiff’s

10 Complaint.” (Dkt. No. 69.) On July 17, 2015, the parties simultaneously filed supplemental

11 briefings. (Dkt. Nos. 74, 75.)

12

ARGUMENT

13 A. The USA FREEDOM Act Does Not and Cannot “Supersede” the DAG Letter.

14

Defendants claim that the letter from Deputy Attorney General James Cole to the

15 General Counsels for Facebook, Inc., et al., dated Jan. 27, 2014 (Dkt. No. 1, Ex. 1) (“DAG

16 Letter”) “has now been superseded by provisions of the USA FREEDOM Act” and that “[t]he

17 DAG Letter therefore has no further relevance to Twitter.” (Dkt. No. 74, at 9.) That assertion

18 is baseless. While some of the reporting options in the USAFA are similar to those in the DAG

19 Letter, none are identical. Indeed, as explained in Twitter’s Opening Supplemental Brief (Dkt.

20 No 75, at 5-6, Ex. A), and as Defendants appear to recognize, the DAG Letter provides some

21 options that are not even contained in the USAFA. See Dkt. No. 74, at 5-6 (First USAFA

22 option “modeled on the first option [in the DAG Letter] but alters that option to expressly

23 permit slightly more detailed reporting with respect to non-content requests, and alters the

24 timing of reporting”; second USAFA option “modeled on option 1 in the DAG Letter, but it

25 provides for narrower bands and shortens the delay period”; third USAFA option “is the same

26 as option 2 in the DAG Letter but . . . the delayed reporting provisions for new platforms,

27

28

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1 products, or services do not apply”; fourth USAFA option “provides an option for more 2 detailed reporting not previously described in the DAG Letter”).1

3

The options in the DAG Letter were declassified and available for government-

4 approved speech before the USAFA was signed into law. It would require far more than

5 statutory provisions offering additional reporting options or an unsupported statement in a court

6 filing to prohibit all communications providers from using the options in the DAG Letter

7 immediately after the USAFA became law. (Indeed, the speech permitted under the DAG

8 Letter would need to be reclassified or lawfully brought under some new nondisclosure

9 provision for it now to be considered prohibited speech.) Significantly, in their Supplemental

10 Brief, Defendants themselves admit that the USAFA “provide[s] additional options for more

11 detailed reporting” (Dkt. No. 74, at 9 (emphasis added)), which suggests that they understand,

12 as Twitter contends, that the DAG Letter and its reporting options were not superseded by the 13 USAFA.2

14

As explained in Twitter’s earlier filings, the DAG Letter does not just permit reporting

15 pursuant to the options that it set forth; it also effectively prohibits providers from speaking in

16 ways that do not conform to those options. Perhaps Defendants’ statement that “the letter has

17 now been superseded” means that Defendants now intend to withdraw those prohibitions. If so,

18 that unstated intent would not moot Twitter’s challenge pursuant to the Administrative

19 Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), for two reasons.

20

First, the APA requires that legislative rules be adopted—and withdrawn—through

21 notice-and-comment rulemaking, not through statements in briefs. See 5 U.S.C. § 551(5)

22 (defining “rule making” as “agency process for formulating, amending, or repealing a rule)

23 (emphasis added). Defendants’ Supplemental Brief would not meet this standard even if it

24

25

1 Twitter notes a further difference between the third USAFA option and option 2 in the DAG

Letter: that the third USAFA option imposes a semi-annual reporting period that does not pertain to 26 option 2 in the DAG Letter.

2 We note that on July 1, 2015—one month after passage of the USAFA—a communications 27 provider published its first transparency report and, in doing so, followed formatting pursuant to the

DAG Letter options, and not the USAFA options. See T-Mobile Transparency Report for 2013 and 28 2014, available at http://newsroom.t-mobile.com/content/1020/files/NewTransparencyReport.pdf.

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1 unambiguously stated an intent to withdraw the DAG Letter. Second, even if Defendants had

2 effectively withdrawn the prohibitions of the DAG Letter, “[t]he voluntary cessation of

3 challenged conduct does not ordinarily render a case moot.” Knox v. Serv. Employees Int’l

4 Union, Local 1000, 132 S. Ct. 2277, 2287 (2012).

5

Indeed, Defendants’ new position on the options set forth in the DAG Letter is simply

6 another example of the pattern of conduct for which Twitter seeks this Court’s intervention. In

7 its Notice filed with the FISC on January 27, 2014 (Dkt. No. 1, Ex. 2), the Department of

8 Justice unceremoniously announced new speech-related restrictions: “It is the Government’s

9 position that the terms outlined in the Deputy Attorney General’s letter [i.e., the DAG Letter]

10 define the limits of permissible reporting for the parties and other similarly situated

11 companies.” (Emphasis added). Likewise, in its letter to Twitter dated September 9, 2014, the

12 FBI purported to restrict Twitter’s proposed speech for being “inconsistent” with the DAG

13 Letter and “go[ing] well beyond what is allowed under the [DAG Letter].” (Dkt. No. 1, Ex. 5.)

14 Defendants’ new position that the previously available options for speech under the DAG

15 Letter are somehow superseded by the USAFA (and therefore there is no redress for

16 Defendants’ prior conduct) reflects cavalier treatment of the requirements of the Administrative

17 Procedure Act and constitutes further unlawful executive branch regulation of speech that is

18 unsupervised by a court.

19

Should Twitter’s APA challenge be dismissed, it is reasonable to expect that

20 Defendants will continue to engage in the regulation of providers’ speech through executive

21 branch action that does not conform to the procedural requirements of the APA. Therefore, the

22 voluntary-cessation exception to the mootness doctrine would apply here. See City of Mesquite

23 v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (defendant city had a history of responding

24 to litigation by repealing legislation and later reinstating it).

25

To conclude, it is difficult for Twitter (and the communications provider community) to

26 know what is allowed and what is prohibited when Defendants act inconsistently, without

27 notice and legal bases, and outside the designated processes for achieving their objectives.

28

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1 B. Twitter's FISA Claims Are Unaffected by the USA FREEDOM Act.

2

1. Defendants Have Not Raised any New Arguments in Support of Their

Position that this Court Should Defer to the FISC. 3

In their Supplemental Brief, Defendants repeat the argument made in their Partial

4

Motion to Dismiss that this Court should defer to the Foreign Intelligence Surveillance Court

5

(“FISC”) on any FISA-related issues in the interests of “comity” and because of the FISC’s

6

supposedly superior ability to deal with such issues. (Dkt. No. 74, at 4.) Defendants’

7

arguments fail for the reasons stated in Twitter’s Opposition to Defendants’ Partial Motion to

8

Dismiss (Dkt. No. 34, at 15-19) and at oral argument (Hearing Tr. May 5, 2015, at 27-37).

9

Defendants do not explain how anything in the USAFA affects their previously made

10

arguments on this point or Twitter’s responses to them.

11

2. Defendants’ Attack on Twitter’s Overbreadth Argument Lacks Merit.

12

Defendants also claim that Twitter’s facial challenges to FISA and the NSL statute are

13

now moot because the USAFA “amended both of those statutes in relevant part” and

14

“overbreadth analysis is inappropriate if the statute being challenged has been amended or

15

repealed.” (Dkt. No. 74, at 11 (citation and quotation marks omitted).) That is incorrect.

16

First, FISA was not amended “in relevant part.” The relevant parts of FISA, including

17

the key provision of FISA that Twitter identified in its Complaint as violating the First

18

Amendment, 50 U.S.C. § 1805(c)(2)(B), were not amended by the USAFA. Defendants latch

19

onto the additional transparency reporting options added to FISA by Section 604 of the USAFA

20

to insist that Twitter’s claims “must now be construed in light of the new aggregate data

21

disclosure provisions of FISA.” (Dkt. No. 74, at 11 (citation omitted).) But the reporting

22

structures in Section 604 of the USAFA in no way resolve Twitter’s First Amendment

23

grievances, either with regard to past or future conduct. Twitter’s FISA-related claims are not

24

only not moot; they are unaffected by the USAFA amendments.

25

Second, Defendants misread Massachusetts v. Oakes, 491 U.S. 576 (1989), in making

26

the blanket assertion that “overbreadth analysis is inappropriate if the statute being challenged

27

28 has been amended or repealed.” (Dkt. No. 74, at 11 (citation and quotation marks omitted).)

28

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1 Instead, the case holds that a statutory amendment moots a challenge to the statute only when

2 the amendment effectively eliminates the constitutional objection, which is not the case here.

3

In Oakes, the defendant was convicted under a Massachusetts statute prohibiting nude

4 photography of children. 491 U.S. at 580. The Massachusetts Supreme Judicial Court

5 invalidated the statute on overbreadth grounds because the statute’s expansive definition of

6 “nudity” failed to take account of context. Id. at 580-81. After the legislature substantially

7 narrowed the statutory definition, the U.S. Supreme Court declined to rule on whether the prior

8 statute, which was no longer relevant to anyone, was overbroad. Id. at 583-84. Instead, the

9 Court instructed the Massachusetts courts to decide Oakes’s First Amendment defense on the

10 facts of his particular case. Id. at 585.

11

Neither the procedural posture nor the facts of Oakes bear any resemblance to this case.

12 Twitter, along with similarly situated communications providers, will continue to have its

13 expression restricted by the current legal regime in fundamentally the same way it was

14 restricted under the pre-USAFA regime. Twitter’s facial challenges to FISA and NSL

15 nondisclosure provisions are therefore not remotely moot. Indeed, the Oakes Court noted that

16 overbreadth challenges can proceed where a ruling “might be salutary,” id. at 582, or provide a

17 benefit going forward, id. at 584. The FISA and NSL nondisclosure provisions continue to

18 burden all recipients of process under these statutes. A ruling on Twitter’s overbreadth claims

19 would undoubtedly be “salutary” and provide a benefit going forward—specifically, it would

20 bring judicial intervention and oversight to executive branch actions concerning speech—and

21 therefore those claims should proceed.

22

The other cases on which Defendants rely actually establish that a case is “moot” only

23 when a judicial determination will no longer matter. In Santa Monica Food Not Bombs v. City

24 of Santa Monica, 450 F.3d 1022, 1032 (9th Cir. 2006) (Dkt. No. 74, at 11), for example, the

25 court dismissed a case on the basis of mootness where a statutory change “allow[ed] appellants

26 to do precisely what they sought to do.” In Reyes v. City of Lynchburg, 300 F.3d 449, 453 (4th

27 Cir. 2002) (Dkt. No. 74, at 11), the court dismissed a case as moot where “the City had

28 repealed [the ordinance] and promised not to reenact a similar one.” And in Outdoor Media

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1 Grp., Inc. v. City of Beaumont, 506 F.3d 895, 901 (9th Cir. 2007), the Ninth Circuit held a case

2 moot because the “new ordinance cure[d] the constitutional deficiencies,” and was therefore

3 not “‘sufficiently similar to the repealed ordinance that it is permissible to say that the

4 challenged conduct continues.’” Id. at 902 (quoting Ne. Fla. Chapter of Associated Gen.

5 Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 n.3 (1993)).

6

In a case such as this one, however, where a defendant’s new program “is substantially

7 similar to the prior program,” the mere fact (not established by Defendants here) that the

8 original program has been amended or repealed does not moot a challenge to it. Associated

9 Gen. Contractors of Am., San Diego Chapter, Inc. v. California Dep’t of Transp., 713 F.3d

10 1187, 1194 (9th Cir. 2013). Defendants cannot seek to avoid this conclusion by reference to a

11 minor change in the legal regime. Indeed, the Supreme Court explicitly rejected such an

12 attempt in Northeastern Florida, where the defendant city repealed the challenged statute and

13 replaced it with a similar one. 508 U.S. 656. The Court declined to dismiss the case for

14 mootness, noting that the “new ordinance may disadvantage [the plaintiffs] to a lesser degree

15 than the old one, but . . . it disadvantages them in the same fundamental way.” Id. at 662. In a

16 case like this one, where the new legal framework continues to cause the same injury, dismissal

17 for mootness is not appropriate.

18 C. Twitter’s NSL Claims Remain Valid After the USA FREEDOM Act.

19

1. Twitter’s Claims Under Section 2709 Are Not Affected by the USAFA.

20

In its Complaint, Twitter alleged that Section 2709 of Title 18, both facially and as

21 applied, is a prior restraint and content-based restriction, which is not narrowly tailored to serve

22 a compelling governmental interest. (Dkt. No. 1, ¶¶ 46-47.) Defendants do not (and cannot)

23 point to any material change from the USAFA that affects these claims. Instead, Defendants

24 rely on Section 604’s reporting structures to argue that the statute “alleviate[s]” Twitter’s

25 concerns. (Dkt. No. 74, at 16.) That is not true. The reporting structures in the USAFA do not

26 remotely redress Twitter’s First Amendment grievances. It is undisputed, for example, that the

27 NSL nondisclosure provisions continue to apply “not only to the content of the request but to

28

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1 the fact of receiving an NSL,” and that they continue to be “unlimited in duration.” (Dkt. No.

2 1, ¶ 46.)

3

Defendants seem to believe they can cure these constitutional defects with assurances

4 that the Government may take remedial steps in the future. For example, Defendants argue that

5 “the amendments allow the Government to agree to other disclosures in certain circumstances.”

6 (Dkt. No. 74, at 16.) But there is no evidence that Defendants intend to do anything with their

7 newly granted authority, and in any event, “the First Amendment protects against the

8 Government; it does not leave us at the mercy of noblesse oblige.” United States v. Stevens,

9 559 U.S. 460, 480 (2010). Defendants also point to USAFA Section 502(f), which directs the

10 Attorney General to adopt unspecified procedures to review “at appropriate intervals” to

11 determine whether nondisclosure orders are still supported. But Section 502(f) does not require

12 the Government to employ the least speech-restrictive means or ensure that nondisclosure

13 orders last for the shortest duration possible, nor does it direct the Government to apply the

14 procedures to NSLs issued before passage of the USAFA, such as any that may be referred to

15 in Twitter’s draft Transparency Report. (Dkt. No. 1, Ex. 4) At this point, the possibility of 16 relief from those procedures is purely speculative.3

17

2. Twitter’s Claim that the NSL Framework Is Unconstitutional Because of

the Judicial Review Process Is Affected by the USAFA, but Remains Valid. 18

Defendants also claim that the USAFA’s changes to judicial review procedures for NSL

19

nondisclosure orders, codified at 18 U.S.C. § 3511, “reinforce” the constitutionality of the NSL

20

statutes because they align with what the Second Circuit envisioned in John Doe, Inc. v.

21

Mukasey, 549 F.3d 861 (2d Cir. 2008). (Dkt. No. 74, at 12.) However, this view contradicts

22

the view of Congress, as expressed in the legislative history for the USAFA. Congress

23

apparently recognized the serious constitutional inadequacies of the prior judicial review

24

procedures, noting that its revisions were intended to “correct[] the constitutional defects in the

25

26 3 Compare Nat’l Fed’n of Fed. Employees v. United States, 695 F. Supp. 1196, 1199 n.5
27 (D.D.C. 1988) (The Government’s “proposed changes accommodate many of plaintiffs’ concerns [but], the changes may not be considered by the Court in evaluating the lawfulness of the form. The changes
28 have not been implemented, and any remedial effect of the changes . . . is purely speculative.”).

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1 issuance of NSL nondisclosure orders found by the Second Circuit [in Doe].” H. R. Rep. No.

2 114-109 (2015) (emphasis added).

3

Further, Defendants’ premise that the USAFA revisions fully comply with all

4 procedural safeguards in Doe is flawed. As Defendants tacitly concede, the statute fails to

5 incorporate the most significant of Doe’s procedural safeguards: the standard of proof the

6 Government must meet. (Dkt. No. 74, at 13.) Furthermore, in drafting the USAFA, Congress

7 chose not to include a specified time frame for the review of NSLs, noting only that a court

8 should “rule expeditiously”—in clear disregard of the Doe court’s suggestion of “a prescribed

9 time, perhaps 60 days.” 549 F.3d at 879.

10

Even if the revised Section 3511 could be read to incorporate the entire Doe framework,

11 the revision would have no effect on the pending Partial Motion to Dismiss. Twitter briefed its

12 challenge to the NSL judicial review procedures assuming, in part, that the Doe framework

13 could be read into Section 3511. (Dkt. No. 34, at 25-26.) As Twitter previously argued in

14 opposition to Defendants’ Partial Motion to Dismiss, the Doe standard is constitutionally

15 insufficient because it does not require the harm alleged by the Government to be serious, and

16 therefore it is not narrowly tailored. Id. That deficiency was not addressed by the USAFA, and

17 Twitter’s position was already before this Court well before the statute’s passage. Defendants

18 cannot, therefore, credibly claim that the amendments to Section 3511 significantly alter

19 Twitter’s challenge, and their arguments for dismissal are merely an attempt to re-argue their

20 Partial Motion to Dismiss.

21 D. 22 23

Defendants Fail to Distinguish Between Issues Addressed in Their Pending Partial Motion to Dismiss and Issues Not Yet Briefed for Consideration and Before the Court.
In its Order calling for supplemental briefing, this Court directed the parties to address

24 “the effect of this legislation, both as to the pending partial motion to dismiss and as to the

25 ultimate claims for relief in Plaintiff’s Complaint.” (Dkt. No. 69.) Defendants have conflated

26 those two distinct sets of issues, devoting much of their brief to merits-based issues that are not

278 yet before the Court in the context of the Partial Motion to Dismiss and that instead would be

28

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1 appropriate for consideration in the context of a motion for summary judgment or other phase

2 of this case.

3

Defendants concede that certain issues are not currently before this Court, but then

4 disregard that reality and argue the merits regardless: “The Government has not yet moved for

5 summary judgment on or dismissal of plaintiff’s challenge to NSL nondisclosure requirements

6 under 18 U.S.C. § 2709, and so the parties have not briefed the appropriate standard of review.”

7 (Dkt. No. 74, at 15, n.9.) However, despite this concession, Defendants proceed to argue the

8 merits of why the NSL statute is permissible under the First Amendment. See Dkt. No. 74, at

9 15-16.

10

The ultimate question of whether the NSL provisions are constitutional is not presently

11 before this Court. Instead, the issue being briefed is the effect of the USAFA on Defendants’

12 Partial Motion to Dismiss and on Twitter’s claims. With respect to the former, only three

13 issues are presently before this Court: (1) Defendants’ claims that this Court lacks jurisdiction

14 to hear Twitter’s challenge under the Administrative Procedure Act; (2) that certain claims are

15 more appropriately heard in the FISC; and (3) that Twitter’s challenge to the review procedures

16 for NSLs should be stayed pending resolution of a Ninth Circuit challenge, Appeal Nos. 13-

17 16732, 13-16731, 13-15957 (9th Cir.). (Dkt. No. 28.) And with respect to the latter, the

18 USAFA does not affect the merits of Twitter’s APA claim or Defendants’ argument regarding

19 deference to the FISC, but the USAFA did revise the NSL judicial review procedures to bring 20 them closer in line to what the Second Circuit envisioned in Doe.4 These changes may (or may

21 not) ultimately affect this Court’s First Amendment analysis of Sections 2709 and 3511.

22 However, Twitter contends that the NSL-related changes are not constitutionally sufficient, and

23 it will brief the issue fully at the appropriate time.

24

25

4 These USAFA revisions include adding a reciprocal notice provision that could force the

Government to initiate court action, 18 U.S.C. §§ 2709(d)(2), 3511(b)(1)(A)-(B); requiring a 26 certification from the Government and repealing the conclusive effect of “good-faith” certifications, 18

U.S.C. § 3511(b)(2); repealing the provision requiring an unsuccessful NSL challenger to wait a year 27 before re-initiating the process (former 18 U.S.C. § 3511(b)(3), USAFA Section 502(g)); and amending

the judicial standard from “no reason to believe [harm will not occur]” to “reason to believe [harm will 28 occur],” 18 U.S.C. § 3511(b)(3).

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1

At this time, this Court need not consider any issues beyond those raised in Defendants’

2 Partial Motion to Dismiss and regarding the effect of the USAFA. Likewise, in its

3 supplemental briefing, Twitter does not address any issues beyond those presently before this

4 Court.

5

6 DATED: August 7, 2015 7 8 9 10 11 12 13 14

Respectfully Submitted,
By: /s/ Michael A. Sussmann Michael A. Sussmann, D.C. Bar No. 433100 MSussmann@perkinscoie.com Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com James G. Snell, Bar No. 173070 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549 HBerlin@perkinscoie.com Amanda L. Andrade, D.C. Bar No. 1010948 AAndrade@perkinscoie.com
Attorneys for Plaintiff Twitter, Inc.

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1

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

2 MELINDA HAAG United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director STEVEN Y. BRESSLER

5 Senior Trial Counsel JULIA A. BERMAN
6 Trial Attorney

7 United States Department of Justice Civil Division, Federal Programs Branch

8

P.O. Box 883 9 Washington, D.C. 20044

10 Telephone: (202) 616-8480 Facsimile: (202) 616-8470

11 Email: julia.berman@usdoj.gov

12 Attorneys for Defendants the Attorney General, et al.

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15 __________________________________________ )

16 TWITTER, INC.,

)

Case No. 14-cv-4480

17

Plaintiff,

)

)

DEFENDANTS’ REPLY

18 v.
19

)

ADDRESSING PLAINTIFF’S

)

SUPPLEMENTAL BRIEF

)

REGARDING THE

LORETTA E. LYNCH, United States

20

Attorney General, et al.,

)

USA FREEDOM ACT

)

21

)

__________________________________________)

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Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Reply Addressing Plaintiff’s Supplemental Brief Regarding the USA FREEDOM Act

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1

INTRODUCTION

2

The Government explained in its Supplemental Brief Regarding the USA FREEDOM

3 Act, ECF No. 74 (“Suppl. Br.”), that the Act1 establishes a permissive regime that allows

4 recipients of national security legal process to disclose more information than ever before

5 regarding their receipt of such process. Rather than accept the new reporting options, however—

6 or challenge any perceived deficiencies in the new regime—plaintiff insists that this Court and

7 the parties should continue to devote resources to the adjudication of its claims that the January

8 27, 2014 Letter from then-Deputy Attorney General James M. Cole to the General Counsels of

9 Facebook, et al. (“DAG Letter”), Compl. Exh. 1 at 3, impermissibly restricts its speech. See

10 Opening Supplemental Brief on Effect of Recent Legislation, ECF No. 75 (“Plaintiff’s

11 Supplemental Brief” or “Pl’s Br.”). As defendants have explained, the DAG Letter never

12 restricted plaintiff’s speech. But even assuming arguendo it had, plaintiff fails to explain how

13 the DAG Letter could be said to restrict its speech now, when the USA FREEDOM Act

14 unmistakably permits the plaintiff to disclose more detailed information than the options

15 described by the DAG Letter. The new, statutory disclosure regime moots the plaintiff’s claims

16 directed at the DAG Letter. And, as previously explained, see Suppl. Br. 8-9, any remaining

17 challenges to restrictions relating to orders or directives received pursuant the Foreign

18 Intelligence Surveillance Act should be dismissed and adjudicated in the Foreign Intelligence

19 Surveillance Court.

20

The USA FREEDOM Act also has a significant impact on the balance of plaintiff’s

21 claims, as defendants explained in their Supplemental Brief. See Suppl. Br. at 10–14. Plaintiff’s

22 argument to the contrary (e.g. Pl. Br. at 7–11) ignores the USA FREEDOM Act’s substantial

23 new procedural protections and amendments to statutes that plaintiff purported to challenge on 24 their face.

25

26

27 1 The USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (“the USA
28 FREEDOM Act” or “the Act”)

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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1

I.

Any Claims Challenging the DAG Letter Must Be Dismissed for Lack of

Jurisdiction Because the DAG Letter Causes Plaintiff No Ongoing Injury.

2

The Government explained in its Supplemental Brief that the plaintiff’s claims

3 challenging the DAG Letter do not present a live case or controversy at this time. See Suppl. Br.

4 at 7 (citing Diffenderfer v. Cent. Baptist Church of Miami, Fla., 404 U.S. 412, 414 (1972) (court

5 must consider the “law as it now stands, not as it stood” previously)). Whatever the prior effect

6 of the DAG Letter,2 it has no further relevance to plaintiff—and certainly cannot be said to cause

7 plaintiff any continuing injury—now that statutory law offers reporting options more permissive

8 and detailed than those previously declassified by the Director of National Intelligence and

9 described in the DAG Letter. See Suppl. Br. at 2–4, 7 (detailing the reporting options provided

10 by the Act and explaining that those options “are modeled on the DAG Letter but provide

11 additional options for more detailed reporting”).

12

Plaintiff does not address its lack of any present or prospective injury from the DAG

13 Letter. See generally Pl’s Br. Instead, plaintiff presents two ways in which it contends that the

14 DAG Letter currently has legal effect: (1) plaintiff asserts that the DAG Letter “remains” the

15 “only stated basis” on which the Government denied the plaintiff’s request to publish its draft

16 transparency report, see Pl’s Br. at 6; and (2) plaintiff insists that providers may choose to

17 disclose data consistent with the options described in the DAG Letter notwithstanding the new

18 legislation. The former is factually incorrect, and the latter is simply inapposite. Neither gives

19 plaintiff standing to continue to litigate these now-mooted claims.

20

Finally, as discussed below, plaintiff’s apparent claim that its challenge is not moot solely

21 because the USA FREEDOM Act introduced a more permissive (rather than a more restrictive)

22 disclosure regime has no basis in law or logic. Precisely because the USA FREEDOM Act

23 expressly permits more detailed reporting than the options described in the DAG Letter, it is

24

25

26

2 As the Government has repeatedly explained, the DAG Letter itself did not prescribe any restrictions on disclosures by the recipients of that letter or by anyone else, including

27 plaintiff. Rather, it was a permissive document that explained how recipients of national security

legal process could describe any such process they had received without running afoul of entirely

28 separate legal restrictions on disclosure.

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1 (even more) clear that the DAG Letter does not restrict or injure the plaintiff in any way, and

2 plaintiff cannot establish Article III standing to challenge it.

3

1. Plaintiff baldly states that “the DAG Letter . . . remains Defendants’ only stated

4 basis for denying Twitter’s request to publish its transparency report.” Pl’s Br. at 6 (emphasis in

5 original), adding, in a particularly revealing averment, that it does not challenge the USA

6 FREEDOM Act because “[u]pon information and belief, Defendants consider the USAFA to be

7 permissive, not to be or represent a prohibition on Twitter’s publication of its transparency

8 report, and therefore not an additional basis for prohibiting Twitter’s speech.” Pl’s. Br. at 6 n.5.

9 Of course, that precisely describes the DAG Letter, as the Government has been telling plaintiff

10 for months: the letter was permissive, and does not itself restrict plaintiff or anyone in any way.

11 See, e.g., Defs’ Partial Mot. to Dismiss, ECF No. 28, at 8 (“By its terms . . . the DAG Letter is

12 permissive, not restrictive. . . It does not purport to classify any previously unclassified

13 information, but rather provides guidance for reporting aggregate data . . . consistent with a 14 declassification decision issued by the DNI the same day.”).3

15

Indeed, plaintiff’s discussion of Section 603 of the USA FREEDOM Act highlights why

16 plaintiff’s now-moot challenge to the DAG Letter was never viable. Plaintiff states that the new

17 legislation does not affect its challenge to FISA reporting under the First Amendment because

18 “[w]hile the USA FREEDOM Act establishes four additional reporting options, it does not

19 amend any of the speech-related restrictions in FISA from which Twitter is seeking relief in this

20 proceeding.” Pl’s Br. at 7. But, again as defendants have repeatedly explained, the same is true

21 of the DAG Letter. The restrictions on plaintiff’s disclosure of this classified information

22 stem—and have always stemmed—not from the DAG Letter, but from any applicable orders of

23 the Foreign Intelligence Surveillance Court (“FISC”), Foreign Intelligence Surveillance Act

24 (“FISA”) directives supervised by that coordinate court, nondisclosure agreements, and/or

25

3 Nor, as this Court has noted, see Tr. 14:17–18, did the FBI refer to the DAG Letter as

26

the reason why plaintiff could not lawfully publish its draft “Transparency Report”; rather, the FBI’s letter stated that the FBI had “carefully reviewed Twitter’s proposed transparency report

27 and [had] concluded that information contained in the report is classified and cannot be publicly

released.” See September 9, 2014 Letter from James A. Baker to counsel for plaintiff, Compl.

28 Exh. 3 (“FBI Letter”) at 1.

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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1 statutes. Plaintiff’s puzzling, contrary claim that “Defendants’ only stated basis for denying

2 Twitter’s request to publish its transparency report” is the DAG Letter (Pl’s Br. at 6) is thus

3 plainly wrong. See, e.g., Reply Mem. in Support of Defs’ Partial Motion to Dismiss, ECF No.

4 57 at 5 (explaining that DAG letter had no more legal effect on plaintiff’s rights and obligations

5 “than a legal brief that summarizes applicable law”); Partial Mot. to Dismiss at 8, 10–13; Tr.

6 10:3–12:7. The DAG Letter is not now—and never was—a basis for denying plaintiff’s request.

7

2. Moreover, and in any event, Congress has now enacted a statutory framework

8 that is more permissive than, and thus plainly would supersede, any purported “restrictions”

9 plaintiff attributes to the DAG Letter. Section 603 of the USA FREEDOM Act delineates four

10 reporting options through which a recipient of national security legal process may disclose

11 aggregate data concerning such process. See Suppl. Br. at 7–9 (describing the new reporting

12 regime). As defendants have explained, those provisions expand on and add to the two options

13 that had been described in the DAG Letter. See id. Thus, while Plaintiff could choose to

14 follow the 2014 framework described in the DAG Letter—notwithstanding that the law now

15 permits plaintiff to disclose more—no possible injury could result from it. The prior reporting

16 options that Plaintiff claims a provider might use (described in a table listing the options

17 available in 2013, those described in the DAG letter, and those set forth in the Act), see Pl’s 18 Br., Ex. A, are entirely subsumed in the new, statutory options.4 Each of these reporting

19 regimes addressed the same universe of information, and allowed progressively more

20 disclosure than the last. Thus, Plaintiff’s contention that, following the enactment of the USA

21 FREEDOM Act, “a communications provider can avail itself of one of the Summer 2013

22 Options, one of the options in the DAG Letter, or one of the [USA FREEDOM Act] options[,]”

23 Pl’s Br. at 4 n.3, is true but irrelevant: the prior reporting regimes do not impose restrictions 24 on Plaintiff in the face of the new, more permissive statutory framework. In any conceivably 25 relevant respect, Section 603 replaced previously-described reporting options.5

26

4 Defendants submit their own chart, attached hereto as Exhibit 1, which illustrates how

27 each set of options expanded on those that preceded it. 5 Nor, even had the DAG Letter injured plaintiff in the first place, would the voluntary

28 cessation exception to the mootness doctrine apply here. E.g., Clarke v. United States, 915 F.2d

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1

3. Plaintiff presents no credible argument as to how it could suffer any continuing

2 injury from the superseded options discussed in the DAG Letter. Rather, plaintiff seems to claim

3 that its challenge to the DAG Letter is not moot because the USA FREEDOM Act is more

4 permissive (and not more restrictive) than the framework described in the DAG Letter. Plaintiff

5 asserts that:

6

The [USA FREEDOM Act] in no way purports to re-classify or otherwise

prohibit the speech approved by the government in 2013 and 2014. The

7

government thus has no basis to say now, in essence: “That speech you were

8

allowed to speak the day before passage of the [USA FREEDOM Act] you can no

longer lawfully speak after passage of the [USA FREEDOM Act].

9 Pl Br. at 3–4. Immediately thereafter, plaintiff concludes: “Since the DAG Letter was not

10 superseded by the [USA FREEDOM Act], passage of the [USA FREEDOM Act] likewise did

11 not moot Twitter’s challenge to the DAG Letter.” Id. at 4.

12

This argument is a non-sequitur and simply wrong. The USA FREEDOM Act clearly

13 establishes new law on the permissible disclosure of aggregate data concerning national

14 security process. And there is no support in the law for plaintiff’s apparent assumption that

15 Congress could only act more restrictively or that a more permissive regime cannot

16 supersede—and thereby moot a challenge to—a prior regime. See, e.g., Princeton Univ. v.

17 Schmidt, 455 U.S. 100, 101, 103 (1982) (per curiam) (challenge to prior set of university

18 regulations governing on-campus speech by members of the public mooted when the university

19 substantially amended those regulations to create a more permissive scheme). In fact, that is

20 precisely the circumstance now before the Court, and plaintiff does not dispute that it can

21 disclose information consistent with the more-detailed options of the Act, regardless of what

22 the DAG Letter said. Moreover, the Government itself has made clear that the USA

23 FREEDOM Act reporting options set forth the new benchmark on what information may be

24 permissibly disclosed.

25

26 699, 705 (D.C. Cir. 1990) (en banc) (refusing to apply voluntary cessation doctrine against the
27 government; stating “it would seem inappropriate for the courts either to impute such manipulative conduct to a coordinate branch of government or to apply against that branch a
28 doctrine that appears to rest on the likelihood of a manipulative purpose.”)

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1

Perhaps most tellingly, plaintiff is still unable to point to any conceivable way in which it

2 would be better off if the DAG Letter were somehow rendered null and void. Plaintiff at one

3 point describes the nature of its challenge as “based on [the Government’s] failure to follow the

4 procedural requirements for promulgating substantive rules.” Pl.’s Br. at 3. But—again

5 assuming arguendo that the DAG Letter was ever a final agency action—Federal Courts do not

6 sit as advisory boards to render judgments on actions that have no legal effect on the party

7 bringing the challenge.

8

*******

9

For all of these reasons, plaintiff’s claims addressing the DAG Letter are moot and the

10 Court should dismiss them for lack of subject matter jurisdiction.

11

II. Plaintiff’s Argument Concerning the USA FREEDOM Act Underscores

12

Why its FISA-Based Claims Should be Dismissed and Heard by the FISC in

the First Instance.

13 Plaintiff’s assessment of the USA FREEDOM Act effectively concedes a key point

14 defendants raised in their partial motion to dismiss: to the extent plaintiff is subject to any

15 nondisclosure obligations related to FISA process, those obligations would arise by operation of

16 a FISC order or a directive issued under a FISC-supervised program and should therefore be

17 addressed by the FISC in the first instance.6 See, e.g., Partial Mot. to Dismiss at 16–19. As

18 noted, plaintiff acknowledges that the reporting options in the USA FREEDOM Act are

19 “permissive” and “[do] not amend any of the speech-related restrictions in FISA from which

20 Twitter is seeking relief in this proceeding.” Pl’s Br. at 6 n.5, 7. But that has been precisely

21 defendants’ point: any restrictions plaintiff wishes to challenge result not from the DAG Letter

22 but from any underlying FISA orders, directives or statutory requirements to which plaintiff may

23 be subject, and challenges to any such restrictions should properly be heard in the FISC.

24 Plaintiff’s argument to the contrary emphasizes the FISC’s recent decision in In re

25 Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No.

26

27

6 As before, this discussion of potential nondisclosure obligations stemming from FISC

orders or directives is not meant to confirm or deny whether plaintiff has in fact received any

28 such national security legal process.

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1 BR15-75, Op. and Order (F.I.S.C. June 29, 2015) (“June 29, 2015 FISC Opinion” or “June 29,

2 2015 Opinion”). In that decision, the FISC denied a motion to intervene in its proceedings,

3 citing to another case that the putative interveners had filed in the district court for District of

4 Columbia. Id. at 4–5. Plaintiff thus argues that the FISC “rejected an opportunity to assert itself

5 as the preferred forum for the interpretation of FISA.” Pl’s Br. at 5.

6

But in that opinion, the request under review did not come—as in this case—from a party

7 (potentially) subject to the FISC’s orders or FISA directives under a program it supervises.

8 Rather, in that decision, the FISC addressed the Government’s application to continue its bulk

9 telephony metadata program for the duration of the transition period provided by USA

10 FREEDOM Act Section 109(a), see June 29, 2015 FISC Opinion at 1, and the movants seeking

11 to intervene were non-parties who asked the FISC, inter alia, to deny the Government’s

12 application and declare that program illegal. Id. at 4. Moreover, while the FISC denied a motion

13 to intervene in that case, it most certainly did not “decline[] to assert itself as the preferred forum

14 for the interpretation of FISA,” as plaintiff contends. Pl’s Brief at 5. In fact, the decision to

15 which plaintiff cites constitutes the FISC’s reauthorization of the bulk telephony metadata

16 program for the duration of the transition period provided by USA FREEDOM Act Section

17 109(a). The court moved expeditiously in the matter as required by statute, see FISA § 103(c),

18 and issued a public decision less than one month after the movants’ June 5, 2015 motion to

19 intervene was filed.

20

Moreover, rather than denying the movants the ability to participate in the proceedings

21 altogether, the FISC granted their alternative request to participate as amici curiae. Id. In doing

22 so, the FISC emphasized that “Congress, through the USA FREEDOM Act, has expressed a

23 clear preference for greater amicus curiae involvement in certain types of FISC proceedings.”

24 Id. at 7. Thus, far from demonstrating the FISC is a “nonpublic court . . . that offers no ability

25 for the public or any nonparty to view FISC proceedings,” Pl’s Br. at 4–5, this decision shows

26 the FISC accommodating participation by a non-party, and, just three days after its decision was

27

28

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1 rendered, posting its opinion, without redaction, on its public website.7 See U.S. Foreign

2 Intelligence Surveillance Court Website, http://www.fisc.uscourts.gov/public-

3 filings?field_case_reference_nid=476&=Apply (reflecting that the June 29, 2015 FISC Opinion

4 was posted on that court’s public website on July 2, 2015). In short, the situation before the

5 FISC in that case did not raise the same considerations raised here as to whether the FISC should

6 review any restrictions that may be imposed on plaintiff, and in any event underscore that the

7 FISC is the appropriate forum to address matters within its purview.

8

III. Plaintiff’s First Amendment Analysis Largely Overlooks the Impact of the

9

USA FREEDOM Act.

10

Plaintiff contends that its facial and as-applied First Amendment claims are essentially

11 unaffected by amendments that changed the very portions of the statutes at the heart of its

12 complaint. See Pl’s Br. at 7. But plaintiff simply overlooks the importance of these amendments

13 under established First Amendment doctrine, as well as the extent to which these changes

14 reinforce the constitutionality of the statutes.

15

To begin with, insofar as plaintiff asserts facial challenges to the statutes based on

16 overbreadth, Compl. ¶¶ 46, 49, plaintiff ignores the “limited” nature of the overbreadth doctrine,

17 which renders overbreadth analysis “strong medicine,” to be employed “only as a last resort.”

18 New York v. Ferber, 458 U.S. 747, 769 (1982). As defendants explained in their supplemental

19 brief, plaintiff cannot maintain a facial overbreadth challenge to the now-superseded versions of

20 FISA and the NSL statutes; the overbreadth doctrine is unavailable where, as here, “the statute

21 being challenged has been amended.” See Massachusetts v. Oakes, 491 U.S. 576, 581 (1989);

22 Suppl. Br. at 9–10 (discussing case law).

23

Furthermore, plaintiff’s claim that “many” of the alleged “failings” that it identified in 18

24 U.S.C. § 3511 “remain unchanged following the amendment,” Pl’s Br. at 8, ignores that the USA

25 FREEDOM Act amended the statute with respect to every one of the five alleged constitutional

26 problems that plaintiff identified in its complaint, see id. (quoting Compl. ¶¶ 46, 48). For

27

7 Citing the requirement that it proceed “expeditiously as possible,” however, and the

“substantial briefing” already submitting by the movants, the FISC denied the movants’ request

28 for additional briefing and oral argument. Id.

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1 example, with respect to the first issue plaintiff names—that the statute “places the burden of

2 seeking to modify or set aside a nondisclosure order on the recipient of an NSL,” id.—plaintiff

3 acknowledges that the new legislation “may make it easier for an NSL recipient” but complains

4 that the legislation allows the nondisclosure orders “to be of uncertain and, potentially, unlimited

5 duration” and requires the recipient to “bear[] the obligation of notifying the government.” Id.

6

In reality, multiple provisions in the legislation ensure that the nondisclosure orders will

7 not be of uncertain or unlimited duration. To begin with, once an NSL recipient notifies the

8 Government of its objection, the Government must initiate judicial review within thirty days, 18

9 U.S.C. § 3511(b)(1)(A)–(B). The district court must then “rule expeditiously” on that challenge.

10 Id. at § 3511(b)(1)(C). Furthermore, the USA FREEDOM Act now requires the Attorney

11 General to adopt procedures for periodically reviewing nondisclosure requirements issued under

12 the amended NSL statute to assess whether the facts supporting nondisclosure continue to exist.

13 USA FREEDOM Act § 502(f)(1). Finally, in the same provision, the new legislation removed

14 the prior language that had prevented certain NSL recipients from challenging nondisclosure

15 requirements more than once per year. Id. These four new safeguards all help to ensure that

16 NSL nondisclosure requirements will not be of “uncertain . . . [or] potentially, unlimited

17 duration,” Pl’s Br. at 8, and the obligation associated with “notifying” the Government of an

18 objection—so that the Government may the bear the burden of initiating judicial review—is

19 minimal at most.

20

So, too, with the second issue identified by the plaintiff—namely, that the legislation fails

21 to ensure that “nondisclosure orders imposed prior to judicial review [are] limited to a specified

22 brief period.” Id. The provisions described above, requiring the Government to initiate judicial

23 review within thirty days of being notified of an objection, 18 U.S.C. § 3511(b)(1)(A)–(B), and 24 the district court to then “rule expeditiously” on that challenge, id. § 3511(b)(1)(C), specifically 25 address that concern and, at the least, must be taken into account in any assessment of plaintiff’s 26 claim. Indeed, although plaintiff acknowledges that this new language “affect[s]” “one aspect of 27 Twitter’s NSL-related claims,” plaintiff’s insistence that this provision may fail to pass 28 constitutional muster because it is not yet clear how the provision will be interpreted, Pl’s Br. at

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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1 8, n.7, is difficult to square with plaintiff’s Complaint, which alleged that the statute’s previous 2 failure to provide for expeditious review rendered it “facially unconstitutional,” Compl. ¶ 46.8

3

In short, for each of the alleged constitutional defects that plaintiff identified, the USA

4 FREEDOM Act amended the NSL statutes and reinforced the constitutionality of the provision

5 in question. See Suppl. Brief at 10–14 (describing how the changes to the legislation remove any

6 doubt that these provisions comport with the requirements of the First Amendment). The

7 statutes plaintiff challenged on their face no longer apply or exist, so those facial challenges must

8 fail.

9

CONCLUSION

10

For the foregoing reasons, and the reasons set forth in defendants’ Supplemental Brief,

11 the USA FREEDOM Act moots plaintiff’s challenge to the DAG Letter; moots plaintiff’s facial

12 challenges to the FISA and the NSL statutes; and, moreover, reinforces their lawfulness.

13 Dated: August 7, 2015 14
15

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

16

MELINDA HAAG

17

United States Attorney

18

ANTHONY J. COPPOLINO

19

Deputy Branch Director

20

/s/ Steven Y. Bressler

STEVEN Y. BRESSLER

21

Senior Trial Counsel

22

/s/ Julia A. Berman JULIA A. BERMAN

23

Trial Attorney

U.S. Department of Justice

24

Civil Division, Federal Programs Branch

25

Attorneys for Defendants

26

8 To maintain that challenge, plaintiff would need to establish that this provision “is

27 unconstitutional in all of its applications” or that it will suppress a substantial amount of

protected speech, “in relation to the statute’s plainly legitimate sweep.” See, e.g., Wash. State

28 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008).

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

10

Defendants’ Reply Addressing Plaintiff’s Supplemental Brief Regarding the USA FREEDOM Act

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

9
TWITTER, INC., 10
Plaintiff, 11
v. 12
LORETTA E. LYNCH, et al., 13
Defendants. 14

Case No. 14-cv-04480-YGR
ORDER DENYING MOTION TO DISMISS AS MOOT AND, ON THE COURT’S OWN MOTION, ORDERING FILING OF AMENDED COMPLAINT IN LIGHT OF RECENT LEGISLATION

United States District Court Northern District of California

15

On June 3, 2015, Defendants Loretta Lynch, et al., (“the Government”) filed a “Notice

16 Regarding Enactment of USA FREEDOM Act of 2015.” (Dkt. No. 67.) On June 9, 2015,

17 Plaintiff Twitter, Inc. (“Twitter”) filed its own Notice regarding the new legislation. (Dkt. No.

18 68.) The Court thereafter ordered the parties to file supplemental briefing on the effect of the

19 legislation on both the Government’s pending partial motion to dismiss and on the complaint

20 generally, and the parties did so. (See Dkt. Nos. 69, 74, 75, 76, 77.)

21

On August 28, 2015, the Government filed a Notice of Recent Authority (Dkt. No. 78),

22 attaching a decision of the Ninth Circuit which vacated judgments in several cases pending before

23 it (In re: National Security Letter cases, Ninth Circuit Court of Appeal Nos. 13-15957, 13-16731,

24 13-16732), and remanded to the district court for further consideration “in light of the significant

25 changes to” 18 U.S.C. sections 2709 and 3511 effected by the Uniting and Strengthening America

26 by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No.

27 114-23, 129 Stat. 268 (2015) (“the USA FREEDOM Act” or “the USAFA”).

28

The Court again solicited additional supplemental briefing specifically addressed to

1 whether the USAFA changed the FISA and NSL-related provisions challenged by Twitter in its

2 complaint (i.e., 18 U.S.C. §§ 2709 and 3511) such that the entire action would be moot. The

3 parties filed those additional supplemental briefing on September 29, 2015.

4

The Court heard the parties’ oral arguments on October 13, 2015.

5

The Court, having carefully considered the parties briefing, their oral arguments, the

6 relevant provisions of the new legislation, and the pleadings in this matter, and for the reasons set

7 forth herein, ORDERS that: (1) the Government’s pending motion to dismiss is DENIED AS MOOT;

8 and (2) on the Court’s own motion, Twitter shall file an amended complaint no later than

9 November 13, 2015, in light of the mootness of its constitutional challenges to 18 U.S.C. sections

10 2709 and 3511 based upon the amendments to those sections worked by the USAFA, or the instant

11 action will be dismissed without further notice as moot.

United States District Court Northern District of California

12

A federal court may only decide such matters as arise in the context of a genuine case or

13 controversy under Article III of the United States Constitution. Here, Twitter brought: (1) First

14 Amendment challenges to 18 U.S.C. sections 2709(c) and 3511; and (2) a challenge under the

15 Administrative Procedure Act (“APA”) to an action by the Deputy Attorney General (“the DAG

16 Letter”) that Twitter contends was a “final agency action” to regulate the ways in which

17 communications providers could report data on government requests for its customers’

18 information. Subsequently, Congress enacted the USAFA, which amended sections 2709(c) and

19 3511, and established new statutory mechanisms for public disclosure of requests received by

20 communications providers. Those new statutory mechanisms included disclosure of aggregate

21 data in bands similar to, but narrower and more specific than, those set forth in the DAG Letter.

22 The Court concludes that the changes wrought by the USAFA abrogate all challenges raised in

23 Twitter’s complaint, and preclude the Court from providing any effective relief thereon. In the

24 absence of amendments to the complaint to address these changes, dismissal is appropriate.

25 I.

BACKGROUND

26

Twitter’s action herein alleges claims for declaratory relief from prohibitions on its speech

27 in violation of the First Amendment. The Complaint alleges, among other things, that Twitter

28 seeks to publish a “Transparency Report” with certain data about legal process it has received 2

1 from the Government, including requests pursuant to the Foreign Intelligence Surveillance Act

2 (“FISA”) and National Security Letters (“NSLs”).

3

A. Underlying Facts

4

On January 27, 2014, in connection with pending complaints filed with the Foreign

5 Intelligence Surveillance Court (“FISC”) by Facebook, Google, Yahoo, Microsoft, and LinkedIn,

6 the Government filed a Notice attaching and referencing the DAG Letter. The Notice to the FISC

7 stated:

United States District Court Northern District of California

8

The Director of National Intelligence has declassified the aggregate data

9

consistent with the terms of the attached [DAG Letter], in the exercise of the

Director of National Intelligence’s discretion pursuant to Executive Order 13526,

10

§ 3.1(c). The Government will therefore treat such disclosures as no longer

prohibited under any legal provision that would otherwise prohibit the disclosure

11

of classified data, including data relating to FISA surveillance. It is the

12

Government's position that the terms outlined in the Deputy Attorney General's letter define the limits of permissible reporting for the parties and other similarly

13

situated companies.

14 See Complaint, Exh. 2 (“FISC Notice”); see also Complaint, Exh. 1 (the DAG Letter). The DAG

15 Letter “memorialize[d] the new and additional ways in which the government will permit

16 [providers] to report data concerning requests for customer information.” (Id.) The letter stated:

17

In the summer of 2013, the government agreed that providers could report in

aggregate the total number of all requests received for customer data, including all

18

criminal process, NSLs, and FISA orders, and the total number of accounts

19

targeted by those requests in bands of 1000. In the alternative, the provider could separately report precise numbers of criminal process received and number of

20

accounts affected thereby, as well as the number of NSLs received and the

number of accounts affected thereby in bands of 1000. Under this latter option,

21

however, a provider could not include in its reporting any data about FISA

process received. [¶] The government is now providing two alternative ways in

22

which companies may inform their customers about requests for data. Consistent

23

with the President's direction in his speech on January 17, 2014, these new reporting methods enable communications providers to make public more

24

information than ever before about the orders that they have received to provide

data to the government.

25 (Complaint, Exh. 1.) The DAG Letter went on to set forth, in detail, two different reporting

26 options that a provider could use in disclosing information about the numbers of requests for

27 information they have received, along with limitations on the timing of publication of such

28

3

1 numbers. (Id.)

2

That same date the Government issued a “Joint Statement by Director of National

3 Intelligence James Clapper and Attorney General Eric Holder on New Reporting Methods for 4 National Security Orders.”1 The Joint Statement said,

United States District Court Northern District of California

5

As indicated in the Justice Department’s filing with the Foreign Intelligence

6

Surveillance Court, the administration is acting to allow more detailed disclosures

about the number of national security orders and requests issued to

7

communications providers, the number of customer accounts targeted under those

orders and requests, and the underlying legal authorities. Through these new

8

reporting methods, communications providers will be permitted to disclose more

9

information than ever before to their customers. [¶] This action was directed by the President earlier this month in his speech on intelligence reforms. While this

10

aggregate data was properly classified until today, the Office of the Director of

National Intelligence, in consultation with other departments and agencies, has

11

determined that the public interest in disclosing this information now outweighs

the national security concerns that required its classification…. [¶] The

12

declassification reflects the Executive Branch’s continuing commitment to

13

making information about the government’s intelligence activities publicly available where appropriate and is consistent with ensuring the protection of the

14

national security of the United States.

15 Executive Order 13526 section 3.1(d) permits an agency of the executive branch to declassify

16 previously classified information.
On April 1, 2014, Twitter submitted to the government a draft transparency report 17
containing information and discussion about the aggregate numbers of NSLs and FISA orders it 18
received in the second half of 2013. Twitter requested “a determination as to exactly which, if 19
any, parts of its Transparency Report are classified or, in the [government’s] view, may not 20
lawfully be published online.” (Complaint, Exh. 3.) Five months later, on September 9, 2014, the
21 Government, in a letter from James A. Baker, General Counsel of the Federal Bureau of

22 Investigation, notified Twitter that “information contained in the report is classified and cannot be

23

24

25

1 This statement, dated January 27, 2014, was made on the Internet at a webpage entitled

“IC On The Record.” (available at http://icontherecord.tumblr.com/post/74761658869/joint-

26 statement-by-director-of-national). The webpage states in its sidebar descriptor “IC ON THE

RECORD: Direct access to factual information related to the lawful foreign surveillance activities 27 of the U.S. Intelligence Community. Created at the direction of the President of the United States

28

and maintained by the Office of the Director of National Intelligence.” The webpage also includes a clickable button labeled “Follow @IContheRecord” linking to the Twitter website.

4

1 publicly released” because it does not comply with the government’s approved framework for

2 reporting data about FISA orders and NSLs. (Complaint, Exh. 5.) The Government’s September

3 9, 2014 response did not identify what specific language in the draft transparency report could or

4 could not be disclosed. (Id.)2

5

B. Procedural History of this Case

6

Twitter filed its Complaint herein on October 7, 2014. On January 9, 2015, defendants

moved to dismiss portions of the complaint filed October 7, 2014, pursuant to Federal Rules of 7

Civil Procedure 12(b)(1) and 12(b)(6), and for prudential reasons. After full briefing and 8
extensions of time by the parties, the Court heard oral argument on the motion May 5, 2015, and 9
took the matter under submission.
10 On June 3, 2015, the Government filed its notice regarding the enactment of the USAFA

11 (Dkt. No. 67), which was quickly followed by Twitter’s notice of the same legislation, albeit

12 stating a different position as to its effect.

13

As stated above, at the direction of the Court, the parties filed supplemental briefing on the

14 effect of the new legislation on the pending motion and the complaint, as well as responses to

15 those briefs.

16

C. Enactment of the USAFA

17

The USAFA made a number of additions and changes to the FISA. As pertinent here:

United States District Court Northern District of California

18

1. The USAFA, section 603(a), added new provisions permitting providers who have

19 received national security legal process, such as an NSL or FISA order, to release publicly:

20

a. semiannual report that aggregates in separate bands of 1000, starting with 0-999:

21

the number of NSLs the person was required to comply with; the number of customer

22

selectors (e.g., user accounts) targeted by NSLs; the combined number of FISA orders or

23

directives received requiring the person to provide communication contents; the number of

24

customer selectors targeted by orders or directives for contents; the number of FISA orders

received for non-content information; and the number of customer selectors targeted under 25

26

27

2 Six weeks after Twitter filed this lawsuit, on November 17, 2014, the Government prepared a redacted version of the draft transparency report that it agreed could be released

28 publicly by Twitter. (Dkt. No. 21.)

5

1

FISA orders for certain types of non-content information, and decreased from 24 to 18

2

months the requirement to wait on reporting applicable to new platforms, products, or

3

services. 50 U.S.C. § 1874(a)(1).

4

b. a report consistent with the above but reporting in bands of 500, starting with 0-

5

499, so long as non-content FISA data is not broken out by authority, and with a decrease

6

in the delay period with respect to new platforms, products, or services from 24 to 18

months. 50 U.S.C. § 1874(a)(2). 7

c. a report consistent with the above but reporting in bands of 250, starting with 08
249, the total number of all national security legal process received (including NSLs and 9
FISA orders and directives) and the total number of customer selectors targeted by such
10 national security legal process, and the delayed reporting provisions do not apply. 50

11 U.S.C. § 1874(a)(3).

12

d. an annual report of the total number of all national security process received and

13

the number of customer selectors targeted under all such legal process received in bands of

14

100, starting with 0-99. 50 U.S.C. § 1874(a)(4).

15

2. The USAFA amended the terms of 18 U.S.C. section 3511(b) to provide an NSL

16 recipient with two alternative means to obtain judicial review of a nondisclosure requirement: (a)

United States District Court Northern District of California

17 by filing a petition for judicial review; or (b) by notifying the Government that it desires a court

18 review, shifting the burden to the Government to justify a nondisclosure requirement. 18 U.S.C. §

19 3511(b)(1)(A). If the recipient requests the Government seek a court review, the Government

20 must apply for a nondisclosure order within thirty days thereafter. Id. § 3511(b)(1)(B). The

21 Government must present a certification including the Government’s “statement of specific facts”
22 explaining why the absence of a prohibition on disclosure may result in enumerated harms. Id. §
23 3511(b)(2). The district court is required to “rule expeditiously,” and, to “issue a nondisclosure
24 order that includes conditions appropriate to the circumstances,” if it determines that the requirements for nondisclosure are met. Id. § 3511(b)(1)(C).
25 3. The USAFA repealed the provision (formerly in § 3511(b)(2)-(3)) that gave
26 conclusive effect to a good-faith certification by specified officials of certain harms, as well as the
27 provision (formerly in § 3511(b)(3)) that required an NSL recipient in certain circumstances to
28

6

1 wait one year after an unsuccessful challenge before again seeking judicial relief.

2

4. The USAFA, section 502, amends 18 U.S.C. § 2709(b) and (c), and adds new

3 subsection (d). As revised by the Act, § 2709(c) now expressly requires the Government to

United States District Court Northern District of California

4 provide the NSL recipient with notice of the right to judicial review in order for the prohibition on

5 disclosure to apply. 18 U.S.C. § 2709(c)(1)(A). New section 2709(d) adds that an NSL or a

6 nondisclosure requirement accompanying an NSL shall be subject to judicial review under § 3511

and that an NSL shall include notice of the availability of judicial review. 18 U.S.C. § 2709(d)(1), 7

(2). 8

II. 9

APPLICABLE AUTHORITY ON JUSTICIABILITY AND MOOTNESS

The Constitution limits the federal judicial power to designated “cases” and 10

“controversies.” U.S. Const., Art. III, § 2. Federal courts do not have power to decide questions 11

of law except as they arise in the context of a genuine “case” or “controversy” within the meaning 12

of Article III. SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972). “(A)n 13

actual controversy must be extant at all stages of review, not merely at the time the complaint is 14

filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotations 15

omitted); see also Alvarez v. Smith, 558 U.S. 87, 92-94 (2009); Diffenderfer v. Cent. Baptist 16

Church of Miami, Fla., Inc., 404 U.S. 412, 414 (1972) (per curiam) (“We must review the 17

judgment of the District Court in light of Florida law as it now stands, not as it stood when the 18

judgment below was entered.”). Unless a party can obtain effective relief by its complaint, any 19

opinion as to the legality of a challenged action would be merely advisory. City of Erie v. Pap’s 20

A.M., 529 U.S. 277, 287 (2000). 21

The voluntary cessation of challenged conduct does not ordinarily render a case moot, 22

since the conduct could be resumed. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 23

(1982). However, a statutory change is usually enough to render a case moot, even if the 24

legislature has the power to modify the statute again after the lawsuit is dismissed. See 25

Maldonado v. Morales, 556 F.3d 1037, 1042 (9th Cir. 2009); see also Diffenderfer, 404 U.S. at 26

414-15 (where the only relief sought was to declare a statute unconstitutional, repeal of statute 27

mooted the action); Matter of Bunker Ltd. P'ship, 820 F.2d 308, 313 (9th Cir. 1987) (“Offering an 28

7

1 advisory opinion construing a statute that is not before us in order to grasp at a finding of a live

2 controversy embodies obvious and fundamental inconsistencies, and is contrary to the case or

3 controversy requirement.”). “[T]he Supreme Court and [the Ninth Circuit] have repeatedly held

4 that a case is moot when the challenged statute is repealed, expires, or is amended to remove the

5 challenged language.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir.

6 2011) (“Don’t Ask, Don’t Tell” statute repealed during pendency of appeal of Constitutional

7 challenge); see also Princeton Univ. v. Schmidt, 455 U.S. 100, 101, 103 (1982) (per curiam) (First

8 Amendment challenge to prior set of university regulations governing on-campus speech by

9 members of the public was mooted when the university substantially amended those regulations to

10 create a more permissive scheme). Similarly, when subsequent legislation or rulemaking

11 supersedes challenged regulations or rules, the challenge is moot. NRDC v. U.S. Nuclear

United States District Court Northern District of California

12 Regulatory Comm’n, 680 F.2d 810, 813-14 & n.8 (D.C. Cir. 1982) (challenge to interim rule for

13 failure to abide by notice and comment requirements mooted by issuance of final rule with notice

14 and comment); Bullfrog Films, Inc. v. Wick, 959 F.2d 778, 780 (9th Cir. 1992) (appeal moot where

15 interim regulations found unconstitutional by the district court have been supplanted by the new

16 legislation).

17

In Maldonado, a district court issued an injunction to remedy the constitutional violation:

18 impermissibly favoring commercial over non-commercial speech by allowing exceptions for

19 certain commercial advertising but not non-commercial messages. Maldonado, 556 F.3d at 1042.

20 The California Legislature thereafter enacted a statute that specifically excepted non-commercial

21 speech from such regulation. Finding that the statute addressed exactly the constitutional problem

22 raised in the complaint, the Ninth Circuit dismissed the appeal as moot. Id.

23 III. DISCUSSION

24

Twitter’s Complaint alleges a violation of the APA with respect to the DAG letter, as well

25 as facial and as-applied challenges to sections 2709(c) and 3511. The Government argued for

26 partial dismissal of the claims on several grounds: (1) that Twitter had no standing to seek judicial

27 review of the DAG letter because it was not “final agency action” for purposes of the APA; (2)

28 that the Court should decline jurisdiction and defer decision on FISA-based claims to the FISC 8

1 based upon comity and prudential considerations; (3) that the Court should dismiss the challenge

2 to section 3511 based upon the reasoning expressed in John Doe, Inc. v. Mukasey, 549 F.3d 861

3 (2d Cir. 2008), rather than following the analysis of the district court in the In re Nat'l Sec. Letter,

4 930 F. Supp. 2d 1064, 1073 (N.D. Cal. 2013) (“In re NSL”).

5

Each of the argued grounds for dismissal is eliminated by the provisions of the new

6 USAFA. First, the Government concedes what seems apparent from the legislation: whatever

7 effect the DAG Letter had, it is now superseded by section 603 of the USAFA. Section 603

8 permits disclosure of aggregate data in bands, some of which track those set forth in the DAG

9 Letter, and some that differ. Twitter argues that the USAFA does not supersede the DAG Letter

10 because it offers more options for reporting by communications providers than the DAG Letter

11 did. Twitter further argues that the Government cannot simply withdraw the DAG Letter because

United States District Court Northern District of California

12 a legislative rule (that Twitter complains was not adopted in accord with the APA to begin with)

13 cannot be withdrawn except through a notice-and-comment process consistent with the

14 requirements of the APA, 5 U.S.C. section 551(5). Both of Twitter’s arguments are untenable.

15 Whether the DAG Letter is a non-binding statement of agency guidance (as the Government

16 would have it) or an improperly adopted regulation (as Twitter would have it), Congress surely

17 can enact legislation that supplants the disclosure options set forth in the DAG Letter with a set of

18 more detailed and unqualified disclosure options. See Mohasco Corp. v. Silver, 447 U.S. 807, 825

19 (1980) (agency’s “‘interpretation’ of the statute cannot supersede the language chosen by

20 Congress”); Pac. Gas & Elec. Co. v. United States, 664 F.2d 1133, 1136 (9th Cir. 1981) (“a

21 regulation which operates to create a rule out of harmony with the statute, is a mere nullity”).

22 Twitter offers no authority to the contrary. Moreover, the notion that an APA process would have

23 to be followed in order to withdraw a rule that Twitter claims was not properly adopted through

24 the APA in the first place defies logic and is similarly unsupported by any authority cited by

25 Twitter.

26

Because the USAFA results in the DAG Letter having no legal effect, the issue of whether

27 it was a “final agency action” or not, raised in the Government’s motion, is now purely an

28 academic question. The Court’s jurisdiction does not include the dispensing of advisory opinions 9

1 on agency actions that have been rendered legal nullities by subsequent legislation. See

2 Diffenderfer, 404 U.S. at 414-15; Maldonado, 556 F.3d at 1042. To the extent that Twitter seeks

3 to challenge the constitutionality of any of the USAFA limitations, its challenge would need to be 4 addressed to the new legislation.3

5

Second, and similarly, the challenge to section 3511, and the Government’s argument that

6 it should be dismissed as a matter of law, is no longer properly before the Court given the 7 amendments to the FISA provisions at issue.4 Twitter argues that the USAFA did not provide a

8 standard of review that is meaningfully different the one challenged in its complaint, and that the

9 USAFA still gives an unconstitutional level of deference to government nondisclosure decisions.

10 However, Twitter’s argument ignores the significant changes and safeguards to the judicial review

11 process that were added to sections 3511(b)(1) and (2) by the USAFA. The House Report in

United States District Court Northern District of California

12 connection with the legislation says that these sections were enacted to “correct[] the

13 constitutional defects in the issuance of NSL nondisclosure orders found by the Second Circuit

14 Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d. Cir. 2008), and adopt[] the concepts

15 suggested by that court for a constitutionally sound process.” H.R. Rep. No. 114-109, at 24. The

16 defects identified in Mukasey are the same defects identified by the district court in the In re NSL

17

18

3 Twitter seems to argue that the speech permitted by the DAG Letter is somehow greater

than what would be permitted under the USAFA and that “the speech permitted under the DAG 19 Letter would need to be reclassified or lawfully brought under some new nondisclosure provision

20

for it now to be considered prohibited speech.” (Twitter Reply Supp. Brief, Dkt. 76, at 2:7-9.) The Court reads the disclosures allowed under the USAFA to be more permissive than the DAG Letter

21 allowed, such that anything permitted under the DAG Letter would also be permitted under the USAFA. Moreover, the USAFA provides: “Nothing in this section prohibits the Government and

22 any person from jointly agreeing to the publication of information referred to in this subsection in

a time, form, or manner other than as described in this section.”). USAFA § 603(c), codified at 50 23 U.S.C. § 1874(c).

24

The Court further notes that, according to the Government’s brief, the DNI declassified aggregate data reported consistent with the USAFA, pursuant to Pursuant to Executive Order

25 13,526. See 75 Fed. Reg. 1013 (Dec. 29, 2009).

26

4 In addition, the Government’s argument that the Court should delay decision on the

motion with respect to section 3511 until the Ninth Circuit has ruled on the In re NSL appeal is 27 mooted for the separate reason that the Ninth Circuit has vacated the judgment in that case and

28 remanded it for further consideration in light of the passage of the USAFA. (See Dkt. No. 78.)

10

1 case on which Twitter relies. In re NSL, 930 F. Supp. 2d at 1073. Indeed, Twitter argued that the

2 Second Circuit’s decision in Mukasey “correctly identified the constitutional problems posed by

3 Section 2709(c)’s broad language,” even if it reached the wrong conclusion about the mitigating

4 effect of Department of Justice policies and regulations on that potential constitutional violation.

5 (Twitter Oppo., Dkt. No. 34, 19:9-19.) Thus, the USAFA was directly addressed to correcting the

6 defects identified by Twitter, in the manner indicated by both Mukasey and In re NSL.

7 Consequently, Twitter’s contention that the USAFA does not moot its challenge to section 3511,

8 as currently alleged, is without merit.

9

Along those same lines, the USAFA’s changes to section 2709 make Twitter’s facial and

10 as-applied challenges to the prior versions of these nondisclosure provisions no longer germane.

11 Twitter alleged that section 2709 was a prior restraint and content-based restriction on speech that

United States District Court Northern District of California

12 was not narrowly tailored and lacked procedural safeguards consistent with strict scrutiny.

13 (Complaint ¶¶ 46, 47, 48.) The revisions to section 2709, as well as section 3511, in the USAFA

14 provide for additional safeguards on review of nondisclosure restrictions. Twitter’s challenges are

15 directed to provisions which no longer exist in the same form as when the action here was 16 brought.5 Moreover, Twitter framed its allegations as a claim that section 2709(c) was

17 unconstitutional as applied to Twitter “via the DAG Letter.” (Complaint ¶ 47, emphasis supplied).

18 The DAG Letter, to the extent it was an agency action, has now been superceded.

19

Finally, the Court has no need to decide the question of whether it should defer to the

20 jurisdiction of the FISC on the FISA-based claims here, since neither this Court nor the FISC

21 would have jurisdiction over a moot action.

22

In sum, the issues raised in the motion to dismiss are all mooted by the amendments to the

23 FISA statute by the USAFA. The motion to dismiss, on the grounds as stated, is DENIED.

24

25 5 Section 2709 incorporates revisions to the nondisclosure review process, as set forth in
26 the amended Section 3511. As the Court reads those provisions, a recipient who seeks court review shifts the burden to the Government to justify nondisclosure with a statement of specific
27 facts, which permits the court to order nondisclosure subject to conditions as appropriate to the 28 circumstances. See 18 U.S.C. § 3511(b)(1)(A), (B), (C).
11

1 However, in light of the amendments to the two key legal provisions challenged herein, and the

2 apparent mootness of Twitter’s claims, the Court ORDERS on its own motion that Twitter file an

3 amended complaint no later than November 13, 2015. The Court SETS a compliance hearing on

4 Friday, November 20, 2015, at 9:01 a.m. If Twitter has filed its amended complaint timely, no

5 appearance will be required and the Court will vacate the hearing. If no amended complaint has

6 been filed, this action will be dismissed as moot.

7

IT IS SO ORDERED.

8 Dated: October 14, 2015 9 10

______________________________________
YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

11

United States District Court Northern District of California

12

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28 12

 
 Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 1 of 20

1 Eric D. Miller, Bar No. 218416
EMiller@perkinscoie.com 2 Michael A. Sussmann, D.C. Bar No. 433100 (pro hac vice)
3 MSussmann@perkinscoie.com James G. Snell, Bar No. 173070
4 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549 (pro hac vice)
5 HBerlin@perkinscoie.com
Amanda L. Andrade, D.C. Bar No. 1010948 (pro hac vice) 6 AAndrade@perkinscoie.com
7 PERKINS COIE LLP 3150 Porter Drive
8 Palo Alto, CA 94304-1212 Tel: 650-838-4300
9 Fax: 650-838-4350
10 Attorneys for Plaintiff Twitter, Inc.

11 UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14

15 TWITTER, INC.,

16

Plaintiff,

17

v.

18 LORETTA LYNCH, Attorney General of 19 the United States,

20

THE UNITED STATES DEPARTMENT OF JUSTICE,

21 JAMES COMEY, Director of the Federal 22 Bureau of Investigation, and

23

THE FEDERAL BUREAU OF INVESTIGATION,

24

Defendants.

25

Case No. 14-cv-4480-YGR
AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202

26

27

AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

28

Case No. 14-cv-04480-YGR

Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 2 of 20

1

I. NATURE OF THE ACTION

2

1. Twitter brings this action for a declaratory judgment and permanent injunction

3 pursuant to 28 U.S.C. §§ 2201 and 2202, requesting relief from prohibitions on its speech in

4 violation of the First Amendment.

5

2. The U.S. government engages in extensive but incomplete speech about the scope

6 of its national security surveillance activities as they pertain to U.S. communications providers,

7 such as Twitter. At the same time, potential recipients of various national security-related

8 requests are strictly prohibited from providing their own informed perspective as potential

9 recipients of various national security-related requests.

10

3. Twitter is firmly committed to providing meaningful transparency to its users and

11 the public. Since 2012, Twitter has published a biannual transparency report that sets forth

12 numbers of requests it receives for user information from governments across the globe, including

13 the U.S. government.

14

4. Twitter seeks to publish information contained in a draft Transparency Report that

15 describes the amount of national security legal process that it received, if any, for the period July

16 1 to December 31, 2013, from the Foreign Intelligence Surveillance Court (“FISC”). In this

17 Transparency Report, Twitter does not seek to disclose information or details concerning any

18 specific order from the FISC that it may have received. Twitter’s Transparency Report instead

19 reveals the actual aggregate number of FISA orders received (if any), the volume of FISA orders

20 received by comparison to government-approved reporting structures, and similar information.

21 Twitter also seeks to disclose that it received “zero” FISA orders, or “zero” of a specific kind of

22 FISA order, for that period, if either of those circumstances is true.

23

5. Twitter submitted its draft Transparency Report to Defendants for review on April

24 1, 2015. Five months later, Defendants informed Twitter that “information contained in the

25 [transparency] report is classified and cannot be publicly released” because it does not comply

26

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1 with the government’s pre-approved framework for reporting data about government requests in

2 national security investigations.

3

6. The Defendants’ response means that Twitter cannot speak about its receipt of

4 national security legal process except in ways that have been preapproved by government

5 officials. Defendants initially took the position that service providers like Twitter are prohibited

6 from saying that they have received zero national security requests, or zero of a particular kind of

7 national security request, although Defendants later conceded that providers who received zero

8 national security requests for a 6-month period can say so. (In addition, a number of providers

9 who, presumably, have received some orders from the FISC have disclosed publicly that they

10 received zero of a particular kind of FISA order, and Twitter is unaware of any comment or action

11 by Defendants to indicate such disclosures are unlawful.) Twitter’s ability to respond to

12 government statements about national security surveillance activities and to discuss the actual

13 surveillance of Twitter users is being unconstitutionally restricted by Defendants’ interpretation

14 of statutes as prohibiting and even criminalizing a service provider’s mere disclosure of the

15 number of FISA orders that it has received, if any.

16

7. Twitter either has received a FISA order in the past or has a reasonable fear of

17 receiving one in the future. Twitter recognizes that genuine national security concerns require

18 that certain information about such orders be kept secret. But the interest in secrecy does not last

19 forever, and at some point, release of information about those orders will no longer harm national

20 security. Twitter seeks to disclose details about specific FISA orders it has received or will

21 receive as soon as doing so will no longer harm national security, but Twitter does not know

22 when, if ever, the Government will allow it to do so.

23

8. Certain provisions in FISA require court orders issued thereunder to ensure

24 nondisclosure, while other provisions in FISA directly require nondisclosure. In both cases, the

25 nondisclosure required is of unlimited duration. These restrictions constitute an unconstitutional

26 prior restraint and content-based restriction on, and government viewpoint discrimination against,

27 Twitter’s right to speak about information of national and global public concern. Twitter is

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1 entitled under the First Amendment to respond to its users’ concerns and to the statements of U.S.

2 government officials by providing more complete information about the limited scope of U.S.

3 government surveillance of Twitter user accounts.

4

9. Defendants have displayed a pattern of informal, overly expansive, delayed and

5 conflicting actions with regard to disclosures that providers generally, and Twitter specifically,

6 are permitted to make about receipt of national security legal process. This results in chilling and

7 prohibiting far more speech than the Constitution tolerates. Twitter requires court intervention to

8 rein in this undisciplined abuse of government discretion to control public speech.

9

II. PARTIES

10

10. Plaintiff Twitter, Inc. (“Twitter”) is a corporation with its principal place of

11 business located at 1355 Market Street, Suite 900, San Francisco, California. Twitter is a global

12 information sharing and distribution network serving over 320 million monthly active users

13 around the world. People using Twitter write short messages, called “Tweets,” of 140 characters

14 or fewer, which are public by default and may be viewed all around the world instantly. As such,

15 Twitter gives a public voice to anyone in the world—people who inform and educate others, who

16 express their individuality, who engage in all manner of political speech, and who seek positive

17 change. Twitter is an electronic communications service (“ECS”), as that term is defined at 18

18 U.S.C. § 2510(15), since it provides its users the ability to send and receive electronic

19 communications. As an ECS and a third-party provider of communications to the public, Twitter

20 is subject to the receipt of a variety of civil, criminal, and national security legal process,

21 including court orders issued under the Foreign Intelligence Surveillance Act (“FISA”).

22 Compliance with such legal process can be compelled through the aid of a court.

23

11. Defendant Loretta Lynch is the Attorney General of the United States and heads

24 the United States Department of Justice (“DOJ”). She is sued in her official capacity only.

25

12. Defendant DOJ is an agency of the United States. Its headquarters are located at

26 950 Pennsylvania Avenue, NW, Washington, D.C.

27

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1

13. Defendant James Comey is the Director of the Federal Bureau of Investigation

2 (“FBI”). He is sued in his official capacity only.

3

14. Defendant FBI is an agency of the United States. Its headquarters are located at

4 935 Pennsylvania Avenue, NW, Washington, D.C.

5

III. JURISDICTION

6

15. This Court has original subject matter jurisdiction under 28 U.S.C. § 1331, as this

7 matter arises under the Constitution, laws, or treaties of the United States. More specifically, this

8 Court may provide injunctive relief and declaratory relief under the Declaratory Judgment Act, 28

9 U.S.C. §§ 2201–2202, relating to, among other things, Twitter’s contention that certain

10 nondisclosure requirements and related penalties concerning the receipt of court orders issued

11 under FISA, as described below, are unconstitutionally restrictive of Twitter’s First Amendment

12 rights, either on their face or as applied to Twitter. This Court is authorized to issue a declaratory

13 judgment and injunction against Defendants under 5 U.S.C. § 702.

14

IV. VENUE

15

16. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

16 of the events giving rise to the action occurred in this judicial district, Twitter resides in this

17 district, Twitter’s speech is being unconstitutionally restricted in this district, and the Defendants

18 are officers and employees of the United States or its agencies operating under the color of law.

19

V. FACTUAL BACKGROUND

20 A. FISA Provisions, Including Nondisclosure Obligations

21

17. Five subsections (“Titles”) of FISA permit the government to seek real-time

22 surveillance or disclosure of stored records from an ECS like Twitter: Title I (electronic

23 surveillance of the content of communications and all communications metadata); Title III

24 (disclosure of stored content and noncontent records); Title IV (provisioning of pen register and

25 trap and trace devices to obtain dialing, routing, addressing and signaling information); Title V

26 (disclosure of certain “business records”) (also referred to as “Section 215 of the USA Patriot

27 Act”); and Title VII (surveillance of non-U.S. persons located beyond U.S. borders). In the case

28

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1 of orders issued pursuant to Titles I, III, IV and V, surveillance of the specified target is approved

2 by the FISC; under Title VII, the FISC annually approves procedures for surveillance, but the

3 government selects targets of surveillance without court supervision.

4

18. Each of these titles of FISA contains a restriction that limits a provider’s ability to

5 disclose information relating to a specific FISA request. Several provisions require the FISC to

6 direct the recipient of a FISA request to comply in such a manner as will protect the secrecy of

7 the court-ordered electronic surveillance, physical search, or installation of a pen register or trap

8 and trace device, or the acquisition of foreign intelligence information, 50 U.S.C. §§

9 1805(c)(2)(B) (Title I); 1824(c)(2)(B) (Title III); 1842(d)(2)(B) (Title IV); 1881a(h)(1)(A) (Title

10 VII). FISA also contains provisions that directly instruct the recipient of a FISA order that it may

11 not disclose the existence of a pen register or trap and trace device “unless or until ordered by the

12 court,” 50 U.S.C. §§ 1842(d)(2)(B) (Title IV), and that it may not “disclose to any other person”

13 the existence of a business records order, 50 U.S.C. § 1861(d)(1) (Title V).

14

19. No provision in FISA prohibits or directs the FISC to prohibit the disclosure of

15 aggregate numbers of FISA orders received.

16

20. Defendants have taken the position that the aggregate number of FISA orders

17 received by a particular ECS are classified and cannot be disclosed. However, defendants have

18 not provided any documentation of this classification decision, other than in a cursory manner in

19 a letter denying Twitter’s request to publish its draft Transparency Report. Letter from James A.

20 Baker, Gen. Counsel, FBI, to Michael A. Sussmann (Sept. 9, 2014) (Dkt. No. 1, Ex. 5.); see ¶ 37

21 infra. Further, Defendants have not disclosed the basis for the determination, the classifying

22 authority who made it, or—most important—the date until which such information remains

23 classified and its disclosure therefore prohibited. (All classified documents, including FISA

24 orders, identify on their face the classifying authority and date of declassification.)

25 B. The Espionage Act

26

21. The Espionage Act criminalizes a number of actions involving the disclosure or

27 improper handling of information “relating to the national defense.” 18 U.S.C. § 793. Subsection

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1 (d) of the Espionage Act criminalizes the willful communication or delivery of any information

2 relating to the national defense that could be used to the injury of the United States or to the

3 advantage of any foreign nation, by someone who has lawful possession of same, to any person

4 not entitled to receive it. Id. § 793(d). Penalties for violations of the Espionage Act include fines

5 and imprisonment. Id.

6

22. Twitter is informed and believes and is concerned that if it were to publicly

7 disclose the actual aggregate number of FISA orders or directives it may have received—which

8 would constitute more detailed reporting than permitted under the options provided in the

9 USAFA—or if Twitter were to publicly disclose its unredacted draft Transparency Report,

10 Defendant DOJ may seek to prosecute Twitter and impose the applicable penalties under the

11 Espionage Act.

12 C. 13

The Government’s Restrictions on Other Communications Providers’ Ability to Discuss Their Receipt of National Security Legal Process

14

23. On June 5, 2013, the British newspaper The Guardian reported the first of several

15 leaks of classified material from Edward Snowden, a former U.S. government contractor, which

16 have revealed—and continue to reveal—multiple U.S. government intelligence collection and

17 surveillance programs.

18

24. The Snowden disclosures deepened public concern regarding the scope of

19 governmental national security surveillance. This concern has been shared by members of

20 Congress, industry leaders, world leaders, and the media. In response to this concern, the

21 government has selectively declassified surveillance-related information for public dissemination,

22 a number of executive branch officials have made public statements characterizing and revealing

23 select details of specific U.S. surveillance programs—including the nature and extent of

24 involvement of U.S. communications providers—and the government has engaged in a

25 programmatic review of classification determinations with a stated goal of declassifying more

26 information.

27

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1

25. While engaging in their own carefully crafted speech, U.S. government officials

2 have relied on statutory and other authorities to preclude communications providers from

3 responding to leaks and inaccurate information reported in the media and by public officials, and

4 related public concerns regarding the providers’ involvement with and exposure to U.S.

5 surveillance efforts. These authorities—and the government’s interpretation of and reliance on

6 them—constitute facial and as-applied violations of the First Amendment right to engage in

7 speech regarding a matter of extensively debated and significant public concern.

8

26. In response to these restrictions on speech, on June 18, 2013, Google filed in the

9 FISC a Motion for Declaratory Judgment of Google’s First Amendment Right to Publish

10 Aggregate Data About FISA Orders. Google then filed an Amended Motion on September 9,

11 2013. Google’s Amended Motion sought a declaratory judgment that it had a right under the First

12 Amendment to publish, and that no applicable law or regulation prohibited it from publishing, (1)

13 the total number of requests it receives under various national security authorities, if any, and (2)

14 the total number of users or accounts encompassed within such requests. Similar motions were

15 subsequently filed by four other U.S. communications providers: Microsoft (June 19, 2013),

16 Facebook (September 9, 2013), Yahoo! (September 9, 2013), and LinkedIn (September 17,

17 2013). Apple also submitted an amicus brief in support of the motions (November 5, 2013).

18

27. In January 2014, the DOJ and the five petitioner companies reached an agreement

19 that the companies would dismiss the FISC actions without prejudice in return for the DOJ’s

20 agreement that the companies could publish information about U.S. government surveillance of

21 their networks in one of two preapproved disclosure formats. (Two more general reporting

22 options had been approved in the summer of 2013.) President Obama previewed this agreement

23 in a public speech that he delivered on January 17, 2014, saying, “We will also enable

24 communications providers to make public more information than ever before about the orders that

25 they have received to provide data to the government.” President Barack Obama, Remarks by the

26 President on Review of Signals Intelligence, White House Office of Press Secretary (Jan. 17,

27

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1 2014, 11:15 AM), http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-

2 review-signals-intelligence.

3

28. The two preapproved disclosure formats were set forth in a letter dated January 27,

4 2014, from Deputy Attorney General James M. Cole to the General Counsels for Facebook,

5 Google, LinkedIn, Microsoft and Yahoo! (the “DAG Letter”). (Dkt. No. 1, Ex. 1.) (The DAG

6 Letter also included the two other preapproved disclosure formats from the summer of 2013.)

7 These four preapproved disclosure formats generally permit disclosures of legal process received

8 in wide reporting bands, with slightly more granularity allowed if aggregate FISA orders are

9 reported in combination with aggregate NSLs received.

10

29. In a Notice filed with the FISC simultaneously with transmission of the DAG

11 Letter, the DOJ informed the court of the agreement, the new disclosure options detailed in the

12 DAG Letter, and the stipulated dismissal of the FISC action by all parties. (Dkt. No. 1, Ex. 2.)

13 The Notice concluded by stating: “It is the Government’s position that the terms outlined in the

14 Deputy Attorney General’s letter define the limits of permissible reporting for the parties and

15 other similarly situated companies.” (Dkt. No. 1, Ex. 2 at 2.) In other words, according to the

16 DOJ, the negotiated agreement reached to end litigation by five petitioner companies was not

17 limited to the five petitioner companies as a settlement of private litigation, but instead serves as a

18 disclosure format imposed on a much broader—yet undefined—group of companies. No further

19 guidance was offered by the DOJ regarding what it considered to be a “similarly situated”

20 company. Further, the Notice cited no authority for extending these restrictions on speech to

21 companies that were not party to the negotiated agreement.

22 D. The DOJ and FBI Deny Twitter’s Request to Be More Transparent

23

30. Twitter is a unique service built on trust and transparency. Twitter is used by

24 world leaders, political activists, journalists, and millions of other people to disseminate

25 information and ideas, engage in public debate about matters of national and global concern, seek

26 justice, and reveal government corruption and other wrongdoing. Twitter users are permitted to

27 post under their real names or pseudonymously and the ability of Twitter users to share

28

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1 information depends, in part, on their ability to do so without undue fear of government

2 surveillance. Therefore, the ability to engage in speech concerning the nature and extent of

3 government surveillance of Twitter users’ activities is critical to Twitter.

4

31. In July 2012, Twitter released its first Transparency Report. Release of this

5 Transparency Report was motivated by Twitter’s recognition that citizens must “hold

6 governments accountable, especially on behalf of those who may not have a chance to do so

7 themselves.” Jeremy Kessel, Twitter Transparency Report, Twitter Blog (July 2, 2012, 20:17

8 UTC), https://blog.twitter.com/2012/twitter-transparency-report. This Transparency Report

9 addressed the volume of civil and criminal government requests for account information and

10 content removal, broken down by country, and takedown notices pursuant to the Digital

11 Millennium Copyright Act received from third parties and the number of instances when Twitter

12 responded to these requests. The report did not contain information regarding government

13 national security requests Twitter may have received. Subsequent biennial transparency reports

14 have been released since then, including the most recent on August 11, 2015.

15

32. At Twitter’s request, on January 29, 2014, representatives of the DOJ, FBI, and

16 Twitter met at the Department of Justice to discuss Twitter’s desire to provide greater

17 transparency regarding the extent of U.S. government surveillance of Twitter’s users through

18 NSLs and FISA court orders. Twitter explained why the DAG Letter should not apply to Twitter,

19 which was not a party to the proceedings that resulted in the DAG Letter. In response, the DOJ

20 and FBI told Twitter that the DAG Letter sets forth the limits of permissible transparency-related

21 speech for Twitter and that the letter would not be amended or supplemented with additional

22 options of preapproved speech.

23

33. In February 2014, Twitter released its Transparency Report for the second half of

24 2013, which included two years of data covering global government requests for account

25 information. In light of the government’s admonition regarding more expansive transparency

26 reporting than that set forth in the DAG Letter, Twitter’s February 2014 Transparency Report did

27 not include information at the level of granularity Twitter felt provided an accurate and

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1 representative view of its receipt of and response to U.S. national security requests and had

2 sought approval from Defendants to disclose.

3

34. In a blog post, Twitter explained the importance of reporting more specific

4 information to users about government surveillance. Twitter also explained how the U.S.

5 government was unconstitutionally prohibiting Twitter from providing a meaningful level of

6 detail regarding U.S. government national security requests Twitter had or may have received:

7

We think the government’s restriction on our speech not only

8

unfairly impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of

9

government affairs. We believe there are far less restrictive ways

to permit discussion in this area while also respecting national

10

security concerns. Therefore, we have pressed the U.S.

Department of Justice to allow greater transparency, and proposed

11

future disclosures concerning national security requests that would

12

be more meaningful to Twitter’s users.

13 Jeremy Kessel, Fighting for more #transparency, Twitter Blog (Feb. 6, 2014, 14:58

14 UTC), https://blog.twitter.com/2014/fighting-for-more-transparency.

15

35. On or about April 1, 2014, Twitter submitted a draft July 2014 Transparency

16 Report to the FBI, explaining:

17

We are sending this to you so that Twitter may receive a

determination as to exactly which, if any, parts of its Transparency

18

Report are classified or, in the Department’s view, otherwise may

not lawfully be published online. 19

20 A copy of Twitter’s letter dated April 1, 2014, was filed with this Court as Dkt. No. 1, Ex. 3.

21 Twitter’s draft Transparency Report, which has already been filed and submitted to the Court, is

22 Dkt. No. 1, Ex. 4.

23

36. Through its draft Transparency Report, Twitter seeks to disclose certain categories

24 of information to its users for the period July 1 to December 31, 2013, including:

25

a. The number of NSLs and FISA orders Twitter received, if any, in actual

aggregate numbers (including “zero,” to the extent that that number was

26

applicable to an aggregate number of NSLs or FISA orders, or to specific

kinds of FISA orders that Twitter may have received); 27

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1

b. The number of NSLs and FISA orders received, if any, reported

separately, in ranges of one hundred, beginning with 1–99; 2
c. The combined number of NSLs and FISA orders received, if any, in

3

ranges of twenty-five, beginning with 1–24;

4

d. A comparison of Twitter’s proposed (i.e., smaller) ranges with those

authorized by the DAG Letter;

5

e. A comparison of the aggregate numbers of NSLs and FISA orders

6

received, if any, by Twitter and the five providers to whom the DAG

Letter was addressed; and

7

f. A descriptive statement about Twitter’s exposure to national security

8

surveillance, if any, to express the overall degree of government

surveillance it is or may be subject to.

9

37. For five months, Defendant FBI considered Twitter’s written request for review of

10 the draft Transparency Report. In a letter dated September 9, 2014, the FBI denied Twitter’s

11 request. A copy of the FBI’s letter was filed with this Court as Dkt. No. 1, Ex. 5. Defendant

12 FBI’s letter did not, as requested, identify exactly which specific information in the draft

13 Transparency Report was classified and therefore could not lawfully be published. Instead, the

14 letter stated that “information contained in the report” cannot be publicly released; it provided

15 examples of such information in the draft Transparency Report; and it relied on a general

16 assertion of national security classification and on the pronouncements in the DAG Letter as its

17 bases for denying publication:

18 We have carefully reviewed Twitter’s proposed transparency

19

report and have concluded that information contained in the report

is classified and cannot be publicly released. 20
. . . Twitter’s proposed transparency report seeks to publish data . .

21

. in ways that would reveal classified details about [government]

surveillance and that go beyond what the government has

22

permitted other companies to report. . . . This is inconsistent with

23

the January 27th framework [set forth in the DAG Letter] and discloses properly classified information.

24 Dkt. No. 1, Ex. 5, at 1. Defendant FBI reiterated that Twitter could engage only in speech that

25 did not exceed the preapproved speech set forth in the DAG Letter. It noted, for example, that

26 Twitter could

27

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1

explain that only an infinitesimally small percentage of its

total number of active users was affected by [government

2

surveillance by] highlighting that less than 250 accounts

3

were subject to all combined national security legal process

. . . . That would allow Twitter to explain that all national

4

security legal process received from the United States

affected, at maximum, only 0.0000919 percent (calculated

5

by dividing 249 by 271 million) of Twitter’s total users. In

other words, Twitter is permitted to qualify its description

6

of the total number of accounts affected by all national

7

security legal process it has received but it cannot quantify

that description with the specific detail that goes well

8

beyond what is allowed under the January 27th framework

and that discloses properly classified information. 9

Id. at 1–2. 10

38. Because Defendant FBI’s response did not identify the exact information in the 11

draft Transparency Report that could not be published, and because the publication of any 12

specific fact the government considers classified could result in prosecution, fines, and 13

imprisonment, Twitter did not at that time publish any part of the report. 14

39. Defendant FBI did not, as the First Amendment requires, prohibit only speech that 15

would harm national security; instead, it prohibited all of the speech in Twitter’s draft 16

Transparency Report and thereby prohibited speech that was not classified, in violation of the 17

First Amendment. 18

40. Defendants’ communications with Twitter in response to Twitter’s inquiries and in 19

its pleadings and argument in the current litigation regarding the extent to which transparency 20

reporting is classified or otherwise prohibited from disclosure have been incomplete, inconsistent 21

and contradictory. 22

E. Twitter Brings Suit Against Defendants 23

41. On October 7, 2014, Twitter filed a Complaint against Defendants seeking 24

declaratory and injunctive relief. (Dkt. No. 1.) 25

42. On November 17, 2014, Defendant DOJ provided to Twitter a redacted, 26

unclassified, public version of the draft Transparency Report that Twitter submitted to Defendants 27

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1 on April 1, 2014. Defendant DOJ simultaneously filed the redacted Transparency Report. (Dkt.

2 No. 21.)

3

43. On January 9, 2015 Defendants filed a partial motion to dismiss. (Dkt. No. 28.) In

4 a footnote, Defendants noted their position that “[o]f course, disclosing the number of Title I

5 orders received would violate” a nondisclosure provision within a FISC order “as it would

6 ‘disclose . . . the existence’ of each of the orders.” (Dkt. No. 28, at 15.) Defendants also

7 repeatedly claimed that the basis for their prohibition on Twitter’s speech was not the DAG

8 Letter, but rather the underlying national security statutes, including FISA, and FISA orders

9 issued thereunder.

10

44. On March 4, 2015, Defendants filed a reply in support of the partial motion to

11 dismiss. (Dkt. No. 57.) In that filing, Defendants asserted that “the Government has never taken

12 [the] position” that a provider that has never received an NSL or FISA order is prohibited from

13 saying so. (Dkt. No. 57, at 8.)

14

45. A hearing on Defendants’ partial motion to dismiss was held on May 5, 2015.

15 F. Passage of the USA FREEDOM Act and Supplemental Court Briefings

16

46. On June 2, 2015, President Obama signed into law the Uniting and Strengthening

17 America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015,

18 Pub. L. No. 114-23, 129 Stat. 268 (2015) (“USA FREEDOM Act” or “USAFA”). The statute

19 contains no express findings, and nothing in the legislative history indicates that Congress made

20 any factual finding regarding how much information regarding U.S. national security requests

21 could be disclosed without harm to national security. The USAFA provides four new options for

22 providers such as Twitter to report the volume of national security process received. Like the

23 DAG Letter, the USA FREEDOM Act provides for wide reporting bands with more granularity

24 permitted where the number of FISA orders received are combined with the number of NSLs

25 received. On its face, the USAFA is permissive; that is, it allows providers to use one of the

26 reporting options it provides, but it contains no express prohibition on other disclosures, and it

27 does not amend or otherwise affect any of the nondisclosure requirements in FISA.

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1

47. On June 11, 2015, the Court directed the parties to “file supplemental briefing on

2 the effect of this legislation, both as to the pending partial motion to dismiss and as to the ultimate

3 claims for relief in Plaintiff’s Complaint.” (Dkt. No. 69.) The Court subsequently requested

4 additional briefing on discrete questions. (Dkt. No. 81.) Defendants took the position in that

5 supplemental briefing that the USA FREEDOM Act superseded the DAG Letter, but was

6 permissive only and did not itself prohibit any speech. Defendants continued to claim that any

7 prohibition on Twitter’s speech came from the underlying national security statutes, including

8 FISA, and FISA orders issued thereunder.

9

48. Following supplemental briefing and a hearing, on October 14, 2015, the Court

10 denied Defendants’ Motion to Dismiss as moot and, on the Court’s own motion, ordered filing of

11 an amended complaint in light of the passage of the USAFA. (Dkt. No. 85.)

12

COUNT I

13

Nondisclosure provisions in FISA are facially unconstitutional

because they are of unlimited duration. 14
49. Twitter incorporates the allegations contained in paragraphs 1 through 48, above.

15 50. The FISA nondisclosure provisions under Titles I, III, IV and VII require or allow

16 that orders or directives issued thereunder ensure that the information produced to Defendants is

17 produced in “a manner as will protect its secrecy.” 50 U.S.C. § 1805(c)(2)(B) (Title I); 50 U.S.C.

18 § 1824(c)(2)(B) (Title III); 50 U.S.C. § 1842(d)(2)(B) (Title IV); 50 U.S.C. § 1881a(h)(1)(A)

19 (Title VII). The FISA nondisclosure provision under Title IV also requires that Title IV orders

20 direct that the recipient of an order “shall not disclose the existence of the investigation or of the

21 pen register or trap and trace device to any person unless or until ordered by the court.” 50

22 U.S.C. § 1842(d)(2)(B) (Title IV) (emphasis added). The FISA nondisclosure provision under

23 Title V differs from the other FISA nondisclosure provisions inasmuch as it does not provide a

24 requirement for court orders but, instead, directly imposes a nondisclosure obligation on the

25 recipient of a Title V FISA order, stating that “[n]o person shall disclose to any other person that

26 the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order

27

28

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Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 16 of 20

1 under this section.” 50 U.S.C. § 1861(d)(1). These provisions on their face require that FISA

2 orders and/or directives be kept secret for an indefinite and indeterminate period of time—even

3 decades after such an order or directive was issued, and even after classification of the order or

4 directive has ended. Title IV and V, on their face, prohibit the recipient of an order from

5 disclosing even the fact of receipt of an order issued under Title IV or V.

6

51. On information and belief, in the 37 years since FISA’s enactment, the

7 government has never informed a provider that a previously received FISA order no longer

8 needed to be kept secret and it, or information regarding it, could be disclosed.

9

52. This indefinite prohibition on lawful speech is unconstitutional under the First

10 Amendment, including because it does not comport with strict scrutiny. The nondisclosure

11 provisions are a prior restraint and content-based restriction on recipients’ speech, and the

12 unlimited duration of the nondisclosure provisions are not narrowly tailored to serve a compelling

13 state interest. Twitter therefore seeks a declaration that the FISA secrecy provisions violate the

14 First Amendment on their face. COUNT II
15 FISA nondisclosure provisions are unconstitutional as applied to Twitter.
16 53. Twitter incorporates the allegations contained in paragraphs 1 through 48, above.
17 54. Defendants rely on the nondisclosure provisions in FISA as a basis for claiming
18 that reporting aggregate numbers of FISA orders received, if any, is prohibited.
19 55. Defendants also rely on the nondisclosure provisions in FISA as a basis for
20 restricting Twitter’s ability to publish its draft Transparency Report.
21 56. In restraining Twitter’s speech, Defendants have misinterpreted FISA, which does
22 not prohibit Twitter from disclosing aggregate information about the number of FISA orders it
23 has received, if any. Instead, FISA protects the secrecy of specific FISA orders, their targets, and
24 ongoing investigations. Twitter has no statutory obligation to remain silent about whether or not it
25 has received FISA orders as a general matter, nor is it prohibited from disclosing the aggregate
26 number of FISA orders it has received.
27

28

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Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 17 of 20

1

57. To the extent that FISA’s secrecy provisions are construed to prohibit Twitter from

2 publishing information about the aggregate number of FISA orders it receives, the FISA secrecy

3 provisions are unconstitutional, including because they constitute a prior restraint and content-

4 based restriction on speech in violation of Twitter’s First Amendment right to speak about

5 truthful matters of public concern. The restriction also constitutes viewpoint discrimination, as

6 Defendants have allowed speech on this issue that conforms to their own

7 viewpoint. Moreover, the restriction on Twitter’s speech is not narrowly tailored to serve a

8 compelling governmental interest. COUNT III
9 The Espionage Act is unconstitutional as applied to Twitter.
10 58. Twitter incorporates the allegations contained in paragraphs 1 through 48, above.
11 59. Defendants’ public statements have given rise to a reasonable concern that Twitter
12 would face prosecution under the Espionage Act, including under 18 U.S.C. § 793(d), if it were to
13 disclose the aggregate number of FISA orders it has received, if any, or any other information in
14 its draft Transparency Report that has been redacted by Defendants and/or is not consistent with
15 the permissible transparency reporting options in the USAFA.
16 60. Given the confusion that Defendants’ conduct has created over permissible
17 disclosures by their contradictory positions on reporting zero requests, the basis or bases for
18 prohibiting speech (whether it derives from classification authority or from the nondisclosure
19 provisions of FISA), and their pattern of selective declassification of specific FISA-related and
20 other national security matters to allow government speech, it is unlawful to apply or threaten to
21 apply criminal penalties to communications providers that seek only to share the number of
22 requests they may receive with their users or specific information after a fixed period of
23 nondisclosure. Furthermore, the Espionage Act itself does not prohibit Twitter from disclosing
24 the aggregate number of FISA orders it has received, if any, or any other information in its draft
25 Transparency Report that has been redacted by Defendants, as such prohibition would be an
26 unconstitutional violation of Twitter’s First Amendment rights.
27

28

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Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 18 of 20

1

61. Any such prosecution of Twitter would be unconstitutional as violating Twitter’s

2 First Amendment right to speak about truthful matters of public concern.

3

PRAYER FOR RELIEF

4

WHEREFORE, Twitter prays for the following relief:

5

A. A declaratory judgment that:

6

i. FISA does not prohibit publication of Twitter’s draft Transparency Report

with respect to FISA orders received or not received;

7

ii. Any interpretation of FISA that prohibits publication of the unredacted

8

Transparency Report with respect to FISA orders received or not received

9

is unconstitutional;

10

iii. The FISA secrecy provisions are facially unconstitutional under the First

Amendment because they do not require nondisclosure orders to contain a

11

defined duration;

12

iv. The FISA secrecy provisions are unconstitutional under the First

13

Amendment as applied to Twitter;

14

v. FISA does not restrict reporting aggregate numbers of FISA orders

received with no further detail concerning such orders;

15

16

vi. Any interpretation of FISA that prohibits reporting aggregate numbers of FISA orders received with no further detail concerning such orders is

17

unconstitutional; and

18

vii. Prosecution of Twitter under the Espionage Act for disclosing the

aggregate number of FISA orders it has received, if any, or any other

19

information in its draft Transparency Report that has been redacted by

20

Defendants, would be an unconstitutional violation of Twitter’s First Amendment rights.

21

B. A preliminary and permanent injunction prohibiting Defendants, their affiliates,

22 agents, employees, and attorneys, and any and all other persons in active concert or participation

23 with them, from seeking to enforce the unconstitutional prohibitions on Twitter’s speech, or to

24 prosecute or otherwise seek redress from Twitter for exercising its First Amendment rights.

25

C. An award of attorneys’ fees and costs to Twitter to the extent permitted by law.

26

D. Such further and other relief as this Court deems just and proper.

27

28

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Case 4:14-cv-04480-YGR Document 88 Filed 11/13/15 Page 19 of 20

1

2 DATED: November 13, 2015

Respectfully submitted,

3

PERKINS COIE LLP

4

By: /s/ Eric D. Miller

5

Eric D. Miller, Bar No. 218416

EMiller@perkinscoie.com

6

Michael A. Sussmann, D.C. Bar No. 433100

7

(pro hac vice) MSussmann@perkinscoie.com

8

James Snell, Bar No. 173070 JSnell@perkinscoie.com

9

Hayley L. Berlin, D.C. Bar No. 1011549 (pro hac vice)

10

HBerlin@perkinscoie.com Amanda L. Andrade, D.C. Bar No. 1010948

11

(pro hac vice)

AAndrade@perkinscoie.com

12

PERKINS COIE LLP

3150 Porter Drive

13

Palo Alto, CA 94304-1212

Telephone: 650.838.4300

14

Facsimile: 650.838.4350

15

Attorneys for Plaintiff

Twitter, Inc.

16

17

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1

CERTIFICATE OF SERVICE

2 The undersigned certifies that, on November 13, 2015, I caused the foregoing document to
3 be filed electronically through the Court’s CM/ECF System and served on all counsel of record.
4

5

/s/ James G. Snell

James G. Snell

6

Attorney for Plaintiff

7

8

9

10

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12

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14

15

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AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Case No. 14-cv-04480-YGR

 
 Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 1 of 31

1

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

2 BRIAN STRETCH Acting United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director STEVEN Y. BRESSLER

5 Senior Trial Counsel JULIA A. BERMAN
6 Trial Attorney

7 United States Department of Justice Civil Division, Federal Programs Branch

8

P.O. Box 883 9 Washington, D.C. 20044

10 Telephone: (202) 616-8480 Facsimile: (202) 616-8470

11 Email: Julia.Berman@usdoj.gov

12 Attorneys for Defendants the Attorney General, et al.

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15 __________________________________________ )

16 TWITTER, INC.,

)

Case No. 14-cv-4480

17

Plaintiff,

)

)

Date: March 15, 2016

18 v.
19

)

Time: 2:00 p.m.

)

Courtroom 1, Fourth Floor

)

Hon. Yvonne Gonzalez Rogers

LORETTA E. LYNCH, United States

20

Attorney General, et al.,

)

)

DEFENDANTS’

21

)

Defendants.

)

22 __________________________________________)

MOTION TO DISMISS THE AMENDED COMPLAINT

23

24

25

26

27

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480 Motion to Dismiss the Amended Complaint

Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 2 of 31

1

TABLE OF CONTENTS

2

PAGE

3 NOTICE OF MOTION ....................................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES..................................................... 1
5
6 PRELIMINARY STATEMENT ......................................................................................... 1

7 BACKGROUND ................................................................................................................. 4

8

A. Statutory and Regulatory Background.....................................................................4

9 1. FISA .............................................................................................................4
10

11

2. The Espionage Act .......................................................................................6

12

B. Factual Background .................................................................................................6

13 ARGUMENT..................................................................................................................... 10

14
I.
15

This Court Should Dismiss Counts I and II in the Interest of Comity
With the Foreign Intelligence Surveillance Court........................................................ 10

16
II.
17

Plaintiff Has Failed to Establish its Standing to Bring the Espionage Act Challenge in Count III of the Amended Complaint...........................................................16

18 III. 19
20

All of Plaintiff’s Claims Fail Because It is Lawful to Restrict Disclosure of Classified Information Learned Through Participation in a Secret National Security Investigation..........................................................................................19

21
CONCLUSION ................................................................................................................. 23
22

23

24

25

26

27

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 3 of 31

1

TABLE OF AUTHORITIES

2 CASES

PAGE(S)

3

Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 4 686 F.3d 965 (9th Cir. 2012) .................................................................................................... 21

5 In re All Matters Submitted to the Foreign Intelligence Surveillance Court,
6 218 F. Supp. 2d 611 (F.I.S.C. 2002) .......................................................................................... 15

7 Am. States Ins. Co. v. Kearns, 8 15 F.3d 142 (9th Cir. 1994) ...................................................................................................... 11

9 Avila v. Willits Envtl. Remediation Trust, 10 633 F.3d 828 (9th Cir. 2011) .................................................................................................... 15

11 Balistreri v. Pacifica Police Dep’t,
901 F.2d 696 (9th Cir. 1990) .................................................................................................... 19 12

13

Bd. of Trustees of the State Univ. of NY v. Fox, 492 U.S. 469 (1989).................................................................................................................. 14

14 Bell Atl. Corp. v. Twombly,
15 550 U.S. 544 (2007).................................................................................................................. 19

16 Butterworth v. Smith,
17 494 U.S. 624 (1990).................................................................................................................. 22

18 Clapper v. Amnesty Int'l USA, 19 133 S. Ct. 1138 (2013)........................................................................................................ 16, 17

20 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).................................................................................................................. 16
21

22 Delson Group, Inc. v. GSM Ass’n, 570 F. App’x 690 (9th Cir. 2014) ....................................................................................... 12, 13
23

24

Dep’t of Navy v. Egan, 484 U.S. 518 (1998)............................................................................................................ 20, 21

25 In re: Directives Pursuant to Section 105B of FISA,
26 551 F.3d 1004 (F.I.S.C.R. 2008)............................................................................................... 11

27 Doe v. Mukasey, 28 549 F.3d 861 (2d Cir. 2008)...................................................................................................... 22

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 4 of 31

1 FDIC v. Aaronian, 2 93 F.3d 636 (9th Cir. 1996) ...................................................................................................... 12

3 First Am. Coalition v. Judicial Review Bd., 4 784 F.2d 467 (3d Cir. 1986)...................................................................................................... 22

5 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (F.I.S.C. 2002) ......................................................................................... 15
6
7 Global Relief Found., Inc. v. O’Neill, 315 F.3d 748 (7th Cir. 2002) .................................................................................................... 21
8 Gov’t Employees Ins. Co. v. Dizol,
9 133 F.3d 1220 (9th Cir. 1998) ............................................................................................ 10, 11
10 Haig v. Agee,
11 453 U.S. 280 (1981).................................................................................................................. 21

12 Hernandez v. United States, 13 No. CV 14-00146, 2014 U.S. Dist. LEXIS 116921 (C.D. Cal. Aug. 20, 2014) ........................ 12

14 Hoffmann-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003) ................................................................................................ 22
15

16 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)...................................................................................................................... 19
17

18

Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir. 1964) .............................................................................................. 12, 13

19 Libertarian Party of Los Angeles County v. Bowen,
20 709 F.3d 867 (9th Cir. 2013) .................................................................................................... 17

21 Lujan v. Defs. of Wildlife, 22 504 U.S. 555 (1992).................................................................................................................. 16

23 McGehee v. Casey, 24 718 F.2d 1137 (D.C. Cir. 1983) .......................................................................................... 21, 23

25 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).................................................................................................................. 16
26
27 NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) .................................................................................................. 11
28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

iii

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Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 5 of 31

1

In re NSA Telecom. Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009) ...................................................................................... 20

2 Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n,
3 457 F.3d 941 (9th Cir. 2006) .................................................................................................... 16

4 Ord v. United States, 5 8 F. App’x 852 (9th Cir. 2001) ................................................................................................. 12

6 Oregon v. Legal Servs. Corp., 7 552 F.3d 965 (9th Cir. 2009) .................................................................................................... 17

8 Principal Life Ins. Co. v. Robinson, 394 F.3d 665 (9th Cir. 2005) .................................................................................................... 11
9
10 Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014) ......................................................................................... 17, 18, 19
11 Pub. Affairs Assocs. v. Rickover,
12 369 U.S. 111 (1962).................................................................................................................. 11
13 Raines v. Byrd,
14 521 U.S. 811 (1997).................................................................................................................. 16

15 Seattle Times Co. v. Rhinehart, 16 467 U.S. 20 (1984).................................................................................................................... 22

17 Snepp v. United States, 18 444 U.S. 507 (1980)................................................................................................. 3, 21, 22, 23

19 St. Clair v. City of Chico, 880 F.2d 199 (9th Cir. 1989) .................................................................................................... 17
20

21

Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003) .................................................................................. 3, 19, 21, 23

22
In Re Subpoena to Testify, 23 864 F.2d 1559 (11th Cir. 1989) ................................................................................................ 22

24 Susan B. Anthony List v. Driehaus, 25 134 S. Ct. 2334 (2014).................................................................................................... 2, 16, 19

26 Thomas v. Anchorage Equal Rights Comm’n, 27 220 F.3d 1134 (9th Cir. 1999) ................................................................................................... 18

28

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Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 6 of 31

1

Torquay Corp. v. Radio Corp. of Am., 2 F. Supp. 841 (S.D.N.Y. 1932)................................................................................................ 12

2 Treadaway v. Academy of Motion Picture Arts & Sciences,
3 783 F.2d 1418 (9th Cir. 1986) .................................................................................................. 12

4 United States v. Abu-Jihaad, 5 630 F.3d 102 (2d Cir. 2010)........................................................................................................ 6

6 United States v. Cavanagh, 7 807 F.2d 787 (9th Cir. 1987) .............................................................................................. 11, 12

8 United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) .................................................................................................. 21
9
10 United States v. Ott, 827 F.2d 473 (9th Cir. 1987) .................................................................................................... 20
11 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State., Inc.,
12 454 U.S. 464 (1982).................................................................................................................. 16
13 Wilton v. Seven Falls Co.,
14 515 U.S. 277 (1995).................................................................................................................. 11

15 Wolfson v. Brammer, 16 616 F.3d 1045 (9th Cir. 2010) ............................................................................................ 17, 19

17 Zdrok v. V Secret Catalogue Inc., 18 No. CV 01-4113, 2001 U.S. Dist. LEXIS 26120, (C.D. Cal. Aug. 1, 2001) ........................... 12
19 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (9th Cir. 2009) .................................................................................................... 19
20

21 STATUTES

22 18 U.S.C. § 793(a) .......................................................................................................................... 6 23 18 U.S.C. § 793(c) .......................................................................................................................... 6
18 U.S.C. § 793(d) .......................................................................................................................... 6 24 18 U.S.C. §§ 793–798..................................................................................................................... 6
18 U.S.C. § 2709............................................................................................................................. 9 25 28 U.S.C. § 2201(a) ...................................................................................................................... 11 26 50 U.S.C. § 1805(c)(2)(B) .................................................................................................... 4, 5, 13
50 U.S.C. § 1805(c)(2)(C) .............................................................................................................. 5 27 50 U.S.C. § 1824(c)(2).............................................................................................................. 5, 13
50 U.S.C. § 1861(d)(1) ............................................................................................................. 5, 13 28

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Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 7 of 31

1

50 U.S.C. § 1861(f)................................................................................................................. 11, 13 50 U.S.C. § 1881a(h)(1)........................................................................................................ 4, 5, 13

2 Pub. L. No. 114-23...................................................................................................................... 1, 8

3 FEDERAL RULE OF CIVIL PROCEDURE
4 Fed. R. Civ. P. 12(b)(1)....................................................................................................... 1, 17, 19 5 Fed. R. Civ. P. 12(b)(6)....................................................................................................... 1, 18, 19

6 LEGISLATIVE MATERIALS
7 Exec. Ord. 13526 ........................................................................................................................ 7, 8
8 Exec. Ord. 12333 ............................................................................................................................ 4 H.R. Rep. No. 114-109, at 26-27 (2015) ....................................................................................... 9
9
10 MISCELLANEOUS

11 Statistical Transparency Report Regarding Use of National Security Authorities - Annual Statistics for Calendar Year 2013, (June 26, 2014) ..................................................................... 7
12
13 Joint Statement by Director of National Intelligence James Clapper and Attorney General Eric Holder on New Reporting Methods for National Security Orders
14 (January 27, 2014) .................................................................................................................. 6, 7

15 Valerie Caproni, Statement Before the House Judiciary Committee, 16 Subcommittee on Crime, Terrorism, and Homeland Security (February 17, 2011) .................. 4

17

18

19

20

21

22

23

24

25

26

27

28

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vi

Motion to Dismiss the Amended Complaint

Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 8 of 31

1

NOTICE OF MOTION

2

PLEASE TAKE NOTICE that, on March 15, 2016, at 2:00 p.m., before Judge

3 Yvonne Gonzalez Rogers, the defendants will move to dismiss plaintiff’s Amended Complaint

4 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and the Declaratory

5 Judgment Act, 28 U.S.C. §§ 2201 et seq., for the reasons more fully set forth in defendants’

6 accompanying Memorandum of Points and Authorities.

7

MEMORANDUM OF POINTS AND AUTHORITIES

8

PRELIMINARY STATEMENT

9

In its Amended Complaint, plaintiff Twitter, Inc. again seeks to challenge on First

10 Amendment grounds alleged restrictions on its ability to publish data concerning court orders to

11 provide information or other legal process that it has received from or under supervision of the

12 Foreign Intelligence Surveillance Court (“FISC”). Plaintiff’s new claims fail as a matter of law.

13

As defendants have explained previously in this litigation, the Government is committed

14 to facilitating transparency regarding companies’ receipt of process to the greatest extent

15 possible consistent with national security. Thus, pursuant to the USA FREEDOM Act of 2015,

16 see Pub. L. No. 114-23, 129 Stat. 268 (“the USA FREEDOM Act” or “the Act”), companies like

17 plaintiff can publish more aggregate data than ever before concerning national security legal

18 process they have received. In its recent Memorandum Opinion and Order (ECF No. 85), this

19 Court recognized that the USA FREEDOM Act mooted the claims in plaintiff’s initial Complaint

20 directed against previously-available reporting options.

21

Plaintiff nonetheless still seeks to publish a draft Transparency Report disclosing

22 information in conflict with the parameters set forth in the new Act, including the specific

23 “amount of national security legal process that it received, if any, [for a specific time period] 24 from the [FISC]” and the specific kind of orders it may have received pursuant to the Foreign 25 Intelligence Surveillance Act (“FISA”). See Am. Compl. ¶ 4. To that end, plaintiff seeks 26 declaratory and injunctive relief in a three-count amended complaint that challenges secrecy 27 requirements set forth in the FISA or otherwise imposed by order of the FISC, see id. ¶¶ 49–57 28 (Counts I and II), and which seeks to foreclose any prosecution under the Espionage Act for the

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Motion to Dismiss the Amended Complaint

Case 4:14-cv-04480-YGR Document 94 Filed 01/15/16 Page 9 of 31

1 publication of information concerning any FISC orders or FISA process it has or may have 2 received. See id. ¶¶ 58–61 (Count III).1

3

It is even clearer now than it was with respect to the original Complaint that judicial

4 review of plaintiff’s claims should be had in the FISC, not this Court. Plaintiff specifically seeks

5 to challenge secrecy restrictions set forth in any orders that the FISC has issued or may issue to

6 plaintiff, as well as provisions of FISA authorizing or establishing secrecy requirements for such

7 process, and any restrictions on the disclosure of aggregate data concerning such process to the

8 extent they are based on FISA-related secrecy requirements. Plaintiff’s amendment to the

9 complaint thus underscores that its FISA-based claims concern the interpretation of any specific

10 orders issued by the FISC to plaintiff, or of any specific FISA directives issued under that court’s

11 supervision to plaintiff, either previously or in the future. Therefore, as a matter of comity and

12 orderly judicial administration, Counts I and II should be brought before the FISC in the first

13 instance so that court may interpret any process it issued to plaintiff, including the extent to

14 which any secrecy requirements apply to plaintiff.

15

The Court should also dismiss Count III of the Amended Complaint. Plaintiff’s pre-

16 enforcement challenge to the Espionage Act with respect to possible future violations of that Act

17 fails to satisfy the injury-in-fact requirement necessary to invoke the Court’s jurisdiction. To be

18 sure, it is possible that a person who possesses classified national security information and has

19 been advised that he is bound not to disclose such information could be prosecuted under the

20 Espionage Act if he does so. But at this stage any challenge to the requirements of the

21 Espionage Act as they might conceivably be applied to plaintiff or its employees is too

22 “conjectural or hypothetical” to support jurisdiction to challenge the Act. Susan B. Anthony List

23 v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citation omitted). Indeed, plaintiff’s attempt to 24 challenge the potential future application of this criminal statute is a puzzling way to contest 25 alleged restrictions on the kind of disclosures of information encompassed by the Espionage Act,

26 1 No statement in this filing by the United States should be construed to confirm or deny whether

27

in fact plaintiff has received any legal process pursuant to FISC order or FISA directive. Indeed, the Amended Complaint does not confirm or deny whether plaintiff has received FISA process,

28 but expressly brings claims based not only on such process it may have received but also on any

FISA process it may receive in the future. See Am. Compl. ¶ 7.

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1 where plaintiff could have simply challenged the propriety of the Government’s classification

2 decision as contemplated in, e.g., Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003).

3

Finally, to the extent this Court exercises jurisdiction, all of plaintiff’s claims also fail on

4 the merits. As an initial matter, the Amended Complaint does not appear to set forth any

5 allegation or claim disputing that certain information plaintiff seeks to publish in its draft

6 Transparency Report is properly classified pursuant to Executive Order and, if published,

7 reasonably could be expected to cause cognizable damage to national security. Indeed, “Twitter

8 recognizes that genuine national security concerns require that certain information about such

9 orders be kept secret,” and it appears to seek “to disclose details about specific FISA orders it has

10 received or will receive as soon as doing so will no longer harm national security,” Am. Compl.

11 ¶ 7. But the Amended Complaint alleges that, for now, plaintiff does not know when or if the

12 Government will allow it to do so. Id. In other words, the Amended Complaint appears to claim

13 a First Amendment right by Twitter to publish any information it has or may come to possess

14 related to FISA national security legal process, but does not directly challenge the Government’s

15 determination that certain data in the draft Transparency Report is in fact classified. It is

16 axiomatic, however, that the Government has “a compelling interest in protecting both the

17 secrecy of information important to our national security and the appearance of confidentiality so

18 essential to the effective operation of our foreign intelligence service.” Snepp v. United States,

19 444 U.S. 507, 509 n.3 (1980) (per curiam). Accordingly, restrictions on disclosure of classified

20 information are lawful and enforceable, particularly when the information is obtained pursuant to

21 statutory law and judicial process in connection with a national security investigation.

22

For these reasons, set forth further below, the Court should dismiss plaintiff’s Amended

23 Complaint.

24

25

26

27

28

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1

BACKGROUND

2

A. Statutory and Regulatory Background

3

The President has charged the FBI with primary authority for conducting

4 counterintelligence and counterterrorism investigations in the United States. See Exec. Order

5 No. 12333 §§ 1.14(a), 3.4(a), 46 Fed. Reg. 59941 (Dec. 4, 1981). Today, the FBI is engaged in

6 extensive investigations into threats, conspiracies, and attempts to perpetrate terrorist acts and

7 foreign intelligence operations against the United States. These investigations are typically long-

8 range, forward-looking, and prophylactic in nature in order to anticipate and disrupt clandestine

9 intelligence activities or terrorist attacks on the United States before they occur.

10

The FBI’s experience with counterintelligence and counterterrorism investigations has

11 shown that electronic communications play a vital role in advancing terrorist and foreign

12 intelligence activities and operations. Accordingly, pursuing and disrupting terrorist plots and

13 foreign intelligence operations often require the FBI to seek information relating to the use of

14 electronic communications, including from electronic communications service providers. See

15 e.g., Valerie Caproni, Statement Before the House Judiciary Committee, Subcommittee on

16 Crime, Terrorism, and Homeland Security (February 17, 2011), available at

17 www.fbi.gov/news/testimony/going-dark-lawful-electronic-surveillance-in-the-face-of-new-

18 technologies.

19

Congress has authorized the FBI to collect such information with a variety of legal tools,

20 including various authorities under FISA and pursuant to FISC supervision. Because the targets

21 of national security investigations and others who seek to harm the United States will take

22 countermeasures to avoid detection, secrecy is often essential to effective counterterrorism and

23 counterintelligence investigations. Recognizing that, Congress has empowered the FISC and the

24 Executive Branch to maintain the confidentiality of national security legal process.

25

1. FISA

26

Pursuant to multiple provisions of FISA, the FISC may issue orders that “direct”

27 recipients to provide certain information “in a manner that will protect the secrecy of the

28 acquisition.” See e.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(h)(1)(A). For example, Title I and VII

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1 of FISA provide that FISA orders “shall direct,” and FISA directives issued by the Attorney

2 General and DNI after FISC approval of an underlying certification “may direct,” recipients to

3 provide the Government with “all information, facilities, or assistance necessary to accomplish

4 the acquisition in a manner that will protect the secrecy of the acquisition,” without limitation.

5 50 U.S.C. § 1881a(h)(1)(A) (Title VII); see also 50 U.S.C. § 1805(c)(2)(B) (similar language for

6 Title I). Additionally, the orders “shall direct” and the directives “may direct” that recipients

7 “maintain under security procedures approved by the Attorney General and the [DNI] any

8 records concerning the acquisition or the aid furnished” that such electronic communication

9 service provider maintains. 50 U.S.C. § 1881a(h)(1)(B) (Title VII); see also 50 U.S.C. §

10 1805(c)(2)(C) (similar language for Title I). Consistent with the Executive Branch’s authority to

11 control classified information, that provision explicitly provides for Executive Branch approval

12 of the companies’ procedures for maintaining all records associated with surveillance.

13

Other FISA titles that provide search or surveillance authorities also provide for secrecy

14 under those authorities. See 50 U.S.C. § 1824(c)(2)(B)-(C) (requiring Title III orders to require

15 the recipient to assist in the physical search “in such a manner as will protect its secrecy” and

16 provide that “any records concerning the search or the aid furnished” that the recipient retains be

17 maintained under appropriate security procedures); 50 U.S.C. § 1842(d)(2)(B) (requiring Title IV

18 orders to direct that recipients “furnish any information, facilities, or technical assistance

19 necessary to accomplish the installation and operation of the pen register or trap and trace device

20 in such a manner as will protect its secrecy,” and that “any records concerning the pen register or

21 trap and trace device or the aid furnished” that the recipient retains shall be maintained under

22 appropriate security procedures); 50 U.S.C. § 1861(d)(1) (providing that “[n]o person shall

23 disclose to any other person that the [FBI] has sought or obtained tangible things pursuant to an 24 order under” Title V of FISA). Accordingly, to the extent that plaintiff has received process 25 pursuant to Titles I and VII of FISA, the Title VII directives would contain the statutorily 26 permitted nondisclosure provisions, while the Title I orders would contain nondisclosure

27

28

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1 requirements that track the statutory provision.2 Likewise, Title III, IV, or V orders would be

2 accompanied by the statutory requirements described above.

3

2. The Espionage Act

4

The Espionage Act, 18 U.S.C. §§ 793–798, protects national defense information. The

5 Act, inter alia, sets criminal penalties for the unauthorized receipt of such information. See 18

6 U.S.C. § 793(c) (prohibiting “recei[ving,] obtain[ing,] or agree[ing] or attempt[ing] to receive”

7 such information “with intent or reason to believe that the information is to be used to the injury

8 of the United States, or to the advantage of any foreign nation,” id. § 793(a), “contrary to the

9 provisions of [that] chapter”). Section 793(d), the provision that plaintiff highlights in the

10 Amended Complaint, see Am. Compl. ¶ 21, prohibits a person “lawfully having possession of

11 . . . information relating to the national defense which information the possessor has reason to

12 believe could be used to the injury of the United States or to the advantage of any foreign nation”

13 from “willfully communicat[ing]” or “deliver[ing]” such information “to any person not entitled

14 to receive it.” 18 U.S.C. § 793(d); see, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 108 (2d

15 Cir. 2010) (affirming the conviction of a defendant under Section 793(d) for transmitting to

16 unauthorized persons certain national defense information).

17

B. Factual Background

18

On January 27, 2014, the Director of National Intelligence (“DNI”) declassified

19 certain aggregate data concerning national security legal process, including FISA-based process

20 as well as National Security Letters (“NSLs”) issued by the FBI, so that recipients of such

21 process could reveal aggregate data, not with specific numbers but in ranges, about the orders

22 and other process they had received. See Joint Statement by Director of National Intelligence

23 James Clapper and Attorney General Eric Holder on New Reporting Methods for National

24

25 2 Title I orders typically contain language such as: “This order and warrant is sealed and the

specified person and its agents and employees shall not disclose to the targets or to any other 26 person the existence of the order and warrant or this investigation or the fact of any of the

27

activities authorized herein or the means used to accomplish them, except as otherwise may be required by legal process and then only after prior notification to the Attorney General.” Of

28 course, disclosing the number of Title I orders received would violate such a provision as it

would “disclose . . . the existence” of each of the orders.

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1 Security Orders (January 27, 2014) (“While this aggregate data was properly classified until

2 today, the Office of the Director of National Intelligence, in consultation with other departments

3 and agencies, has determined that the public interest in disclosing this information now

4 outweighs the national security concerns that required its classification.”), available at 5 http://icontherecord.tumblr.com/post/74761658869/joint-statement-by-director-of-national.3

6

Consistent with the DNI’s declassification action, the Deputy Attorney General (“DAG”)

7 described the types of information that an electronic communication service provider could

8 provide pursuant to that declassification in a January 27, 2014 letter to the general counsels for

9 five companies. See January 27, 2014 Letter from DAG James M. Cole to General Counsels of

10 Facebook, et al. (“DAG Letter”), Exhibit 1 to Compl. (ECF No. 1). The Government also

11 informed the FISC that:

12

[t]he Director of National Intelligence has declassified the aggregate data

13

consistent with the terms of the attached letter from the Deputy Attorney General,

in the exercise of the Director of National Intelligence’s discretion pursuant to

14

Executive Order 13526, § 3.1(c). The Government will therefore treat such

disclosures as no longer prohibited under any legal provision that would

15

otherwise prohibit the disclosure of classified data, including data relating to

16

FISA surveillance.

17 See Notice, Exhibit 2 to Compl. (“FISC Notice”), also available at

18 http://www.justice.gov/iso/opa/resources/422201412716042240387.pdf. See also DAG Letter at

19 1 (noting the letter was sent “in connection with the Notice we filed with the [FISC] today”);

20 Exec. Order No. 13526, § 3.1(d) (providing for discretionary declassification by the Executive

21 Branch in extraordinary circumstances in the public interest). The Notice also stated the

22 Government’s view that “the terms outlined in the Deputy Attorney General’s letter define[d] the

23 limits of permissible reporting for the parties and other similarly situated companies.” See FISC

24 Notice. By its terms, however, the DAG Letter was permissive, not restrictive; rather than

25 purporting to classify any previously unclassified information, it provided guidance for reporting

26 3 The DNI also, for the first time, publicly provided statistical information regarding the use of

27

national security legal authorities, including FISA, and has continued to do so annually. See Statistical Transparency Report Regarding Use of National Security Authorities -

28 Annual Statistics for Calendar Year 2013, (June 26, 2014), available at

http://icontherecord.tumblr.com/transparency/odni transparencyreport cy2013.

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1 aggregate data regarding national security legal process received by a particular company

2 consistent with a declassification decision issued by the DNI the same day under Executive

3 Order 13526.

4

Plaintiff Twitter sought review of purported restrictions on the disclosure of a draft

5 “Transparency Report” containing specific details regarding any national security legal process

6 received by plaintiff during, inter alia, the second half of 2013. See Am. Compl. ¶¶ 4, 36

7 (characterizing draft Report); ECF No. 21-1 (unclassified, redacted version of draft Report). By

8 letter dated September 9, 2014, following further discussions between defendants and plaintiff,

9 the FBI informed counsel for plaintiff that the draft Report contains information that is properly

10 classified and, therefore, cannot lawfully be publicly disclosed. See Exhibit 3 to Compl. (“FBI

11 Letter”); see also Am. Compl. ¶¶ 20, 37 (plaintiff’s allegations characterizing the letter).

12

On October 7, 2014, plaintiff filed its initial complaint seeking declaratory and injunctive

13 relief to permit it to publish the classified information contained in its draft Transparency 14 Report.4 Plaintiff challenged the DAG Letter under the Administrative Procedure Act (“APA”),

15 and alleged that restrictions on publication imposed by statutory provisions, judicial orders,

16 Government directives, and nondisclosure agreements violated the First Amendment. After the

17 parties had fully briefed the defendants’ partial motion to dismiss the complaint, see ECF Nos.

18 28, 34, 57, and the Court had heard argument on that motion, ECF No. 62, Congress enacted the

19 USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268.

20

The USA FREEDOM Act establishes a statutory mechanism for recipients of national

21 security legal process, including orders of the FISC and directives supervised by that court

22 pursuant to the FISA, to make public disclosures of certain aggregate data about such process.

23 See USA FREEDOM Act § 603(a). This section is modeled on the reporting options that were 24 described in the January 27, 2014 DAG Letter and DNI declassification decision but provides

25 4 Defendants subsequently informed plaintiff which portions of the draft Report contain
26 classified information that could not lawfully be published and provided plaintiff and the Court

27

with a redacted, unclassified copy of the draft Report. Defendants provided plaintiff this version of the draft Transparency Report, from which any classified information had been redacted, on

28 November 17, 2014, shortly after this litigation commenced. See Am. Compl. ¶ 42; see also

ECF No. 21-1.

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1 additional and more detailed reporting options. Compare DAG Letter, Compl., Exh. 1, with

2 USA FREEDOM Act § 603(a); see also H.R. Rep. No. 114-109, at 26-27 (2015) (noting that this

3 provision was modeled on the DAG Letter framework). The DNI has declassified information

4 reported consistent with the USA FREEDOM Act options.

5

On October 14, 2015, after additional briefing and a hearing, this Court ordered plaintiff

6 to submit an amended complaint by November 13, 2015, noting that the action would be

7 dismissed as moot if no amended complaint was submitted. See Order, ECF No. 85, at 12.

8 Plaintiff filed its three-count Amended Complaint on November 13, 2015, once again

9 challenging on First Amendment grounds purported restrictions on its ability to publish certain

10 information concerning national security legal process related to any process plaintiff received

11 pursuant to FISA, but no longer with respect to NSLs issued pursuant to 18 U.S.C. § 2709. See

12 Am. Compl. ¶¶ 4–7; 30–39; Prayer for Relief. The Amended Complaint does not purport to

13 challenge the reporting options set forth in the DAG Letter, nor the FBI’s 2014 Letter that was

14 based on the DNI’s 2014 declassification decision and consistent with options set forth in the

15 DAG Letter, nor the new reporting options set forth in the USA FREEDOM Act. The Amended

16 Complaint also does not appear to specifically challenge the merits of any substantive

17 determination by the Executive Branch that certain information redacted from plaintiff’s draft

18 Transparency Report is in fact currently classified. Rather, plaintiff purports to bring First

19 Amendment challenges to requirements of FISA (Counts I and II) and the Espionage Act (Count

20 III). Specifically, plaintiff seeks to bring a “facial” constitutional challenge to nondisclosure

21 provisions under FISA Titles I, II, IV, and VII that require or allow that orders or directives

22 issued thereunder by the FISC ensure that information is produced to the Government in a

23 manner that protects its secrecy. See Count I, Am. Compl. ¶ 50; see also id. (challenging other 24 secrecy provisions in Titles IV and V of the FISA). Plaintiff also purports to bring a separate 25 constitutional challenge to FISA non-disclosure provisions “as applied” to it, see id. Count II and 26 ¶¶ 54-57, and, through this particular Count, specifically claims that FISA orders and directives 27 do not and may not restrict the disclosure of certain aggregate data concerning any FISA process 28 it may have received. In Count III, plaintiff seeks to bring an “as applied” constitutional

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1 challenge to the Espionage Act based on the allegation that plaintiff has a “reasonable concern”

2 that it would face prosecution under the Act if it were to disclose aggregate data in its draft

3 Transparency Report and based on the claim that the Act does not prohibit the disclosure of

4 aggregate data concerning FISA process plaintiff may have received. Id. ¶¶ 59-60. Plaintiff

5 requests a declaratory judgment that the FISA does not or could not constitutionally prohibit

6 publication of its draft Transparency Report, that FISA secrecy provisions are unconstitutional

7 on their face and as they may have been or may be applied to Twitter, and that any prosecution

8 under the Espionage Act for disclosure of the information redacted from the draft Transparency

9 Report would violate the First Amendment, as well as related injunctive relief. Id. (Prayer for

10 Relief). 11

ARGUMENT

12

I. This Court Should Dismiss Counts I and II in the Interest of Comity With

the Foreign Intelligence Surveillance Court.

13 The Court should decline to hear Counts I and II, which concern legal process issued by

14 the FISC and provisions of FISA administered under FISC supervision. See Gov’t Emps. Ins.

15 Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998) (“If [a suit under the Declaratory Judgment

16 Act] passes constitutional and statutory muster, the district court must also be satisfied that

17 entertaining the action is appropriate”). In its partial motion to dismiss the original complaint,

18 the Government explained that adjudication of plaintiff’s request to disclose aggregate data

19 regarding FISA-based process would require the Court to interpret FISC orders or directives

20 issued under FISC-supervised programs. See Defs.’ Partial Mot. to Dismiss, ECF No. 28, at 13–

21 20. Under plaintiff’s formulation of its claims in the Amended Complaint, this is even more

22 clearly the case: Counts I and II of the Amended Complaint seek adjudication solely of

23 nondisclosure obligations arising under FISA, including any specific orders of the FISC that

24 have been or may be issued to plaintiff, on their face and as-applied. See Am. Compl. ¶¶ 49–57.

25 The Amended Complaint’s description of how any such FISA-based obligations would operate

26 demonstrates that any nondisclosure obligations arising under FISA apply to recipients of FISA

27 process largely through FISC orders or directives issued to them under FISC-supervised

28 programs, see Am. Compl. ¶¶ 17–19, 50. Moreover, the sole exception to that structure—the

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1 only provision that operates directly on a recipient of process, rather than through a

2 nondisclosure obligation in an order or directive—expressly channels any challenges to its

3 nondisclosure requirements to the FISC. See 50 U.S.C. § 1861(f). For all of these reasons, as

4 explained below, Counts I and II of the Amended Complaint should be heard by the FISC, and

5 this Court should exercise its discretion to dismiss those claims.

6

The Supreme Court has explained that, “[i]n the declaratory judgment context, the normal

7 principle that federal courts should adjudicate claims within their jurisdiction yields to

8 considerations of practicality and wise judicial administration.” Wilton v. Seven Falls Co., 515

9 U.S. 277, 288 (1995). Thus, a district court has discretion to decline to exercise jurisdiction over

10 Declaratory Judgment Act claims based on prudential considerations. See 28 U.S.C. § 2201(a).

11 This determination is discretionary because “the Declaratory Judgment Act is deliberately cast in

12 terms of permissive, rather than mandatory, authority.” Dizol, 133 F.3d at 1223 (quotation

13 omitted). “The Act ‘gave the federal courts competence to make a declaration of rights; it did not

14 impose a duty to do so.’” Id. (quoting Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 112

15 (1962)); accord, e.g., Wilton, 515 U.S. 277 (recognizing discretionary nature of declaratory

16 relief); NRDC v. EPA, 966 F.2d 1292, 1299 (9th Cir. 1992) (same).

17

The Supreme Court explained in Wilton that “a district court is authorized, in the sound

18 exercise of its discretion, to stay or to dismiss an action seeking a declaratory judgment. . . .” 515

19 U.S. at 288. In doing so, “the district court must balance concerns of judicial administration,

20 comity, and fairness to the litigants.” Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th

21 Cir. 2005) (quoting Am. States Ins. Co. v. Kearns, 15 F.3d 142, 144 (9th Cir. 1994)). The last-

22 cited factor—fairness to the litigants—is neutral in this setting; as the Government has 23 previously explained, the FISC is an Article III court, comprised of district court judges.5 See 24 Reply Mem. in Further Supp. of Defs.’ Partial Mot. to Dismiss, ECF No. 57 at 12 (citing United

25 5 Indeed, as reflected in the Amended Complaint, when five other companies including Google,
26 Microsoft, Facebook, Yahoo, and LinkedIn sought similar relief—a declaratory judgment that

27

the First Amendment allowed them to publish more aggregate data than they had been permitted to disclose at that time—they did so before the FISC. See Am. Compl. ¶ 26. See also In re:

28 Directives Pursuant to Section 105B of FISA, 551 F.3d 1004 (F.I.S.C.R. 2008) (Yahoo challenge

to directives under now-expired FISA amendments resolved before the FISC and FISCR).

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1 States v. Cavanagh, 807 F.2d 787, 791–92 (9th Cir. 1987) (Kennedy, J.)). The FISC maintains a

2 public docket and, if it were to adjudicate plaintiff’s claims, would provide the parties and the

3 public open access to any unclassified submissions. See Defs.’ Reply in Support of Mot. to

4 Dismiss the original Complaint, ECF No. 57, at 13.

5

Where, as here, an action challenges the orders of another court, the first two factors

6 counsel in favor of dismissal; “considerations of comity and orderly administration of justice

7 demand that the nonrendering court should decline jurisdiction of such an action and remand the

8 parties for their relief to the rendering court.” Lapin v. Shulton, Inc., 333 F.2d 169, 172 (9th Cir.

9 1964); see also FDIC v. Aaronian, 93 F.3d 636, 639 (9th Cir. 1996) (actions challenging the

10 orders of another court are “disfavored”); Treadaway v. Acad. of Motion Picture Arts & Scis.,

11 783 F.2d 1418, 1422 (9th Cir. 1986) (“When a court entertains an independent action for relief

12 from the final order of another court, it interferes with and usurps the power of the rendering

13 court just as much as it would if it were reviewing that court’s equitable decree.”). Thus, in

14 Lapin, the Court of Appeals affirmed the California district court’s refusal to hear a challenge to

15 an injunction issued by a district court in Minnesota. See 333 F.2d at 169. The Court of Appeals

16 concluded that “sound reasons of policy support the proposition that relief should be sought from

17 the issuing court . . . . so long as it is apparent that a remedy is available there,” id. at 172, and

18 emphasized its agreement that “it is clear, as a matter of comity and of the orderly administration

19 of justice, that [a] court should refuse to exercise its jurisdiction to interfere with the operation of

20 a decree of another federal court” id. (quoting Torquay Corp. v. Radio Corp. of Am., 2 F. Supp. 21 841, 844 (S.D.N.Y. 1932)).6 See also Delson Grp., Inc. v. GSM Ass’n, 570 F. App’x 690 (9th

22

23 6 See also, e.g., Ord v. United States, 8 F. App’x 852, 854 (9th Cir. 2001) (affirming

24

the California district court’s refusal to hear a challenge to a District of Columbia district court’s order, and its holding that “if Ord wants to take the D.C. court’s order to task, he should seek

25 relief in the D.C. court. He may not upset the principles of judicial comity, fairness and

efficiency that underlie the basic rule against horizontal appeals.”); Hernandez v. United States, 26 No. CV 14-00146, 2014 U.S. Dist. LEXIS 116921, at *5–7 (C.D. Cal. Aug. 20, 2014) (declining

27

jurisdiction, as a matter of comity, over a challenge to a Texas district court’s order); Zdrok v. V Secret Catalogue Inc., No. CV 01-4113, 2001 U.S. Dist. LEXIS 26120, at *17-18 (C.D. Cal.

28 Aug. 1, 2001) (declining jurisdiction, as a matter of comity, over a challenge to an Ohio court’s

order).

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1 Cir. 2014) (relying on Aaronian, Treadaway, & Lapin; upholding California district court’s

2 dismissal of a challenge to the judgment of a Georgia district court).

3

Here, the Amended Complaint makes clear that “the operation of a decree of another

4 federal court,” Lapin, 333 F.2d at 172, would be at the heart of the Court’s consideration of

5 Counts I and II, plaintiff’s facial and as-applied challenges to FISA-based nondisclosure

6 obligations. Plaintiff acknowledges that four of the five provisions of FISA that are subject to its

7 challenge operate through “orders or directives issued thereunder,” rather than imposing

8 nondisclosure obligations directly on a recipient of FISA-based process. Am. Compl. ¶ 50,

9 (listing Title I, 50 U.S.C. § 1805(c)(2)(B); Title III, 50 U.S.C. § 1824(c)(2)(B); Title IV, 50

10 U.S.C. § 1842(d)(2)(B); and Title VII, 50 U.S.C. § 1881a(h)(1)(A)). Title V, the sole exception

11 to this structure, “directly imposes a nondisclosure obligation on the recipient of a Title V FISA

12 order,” Am. Compl. ¶ 50 (citing 50 U.S.C. § 1861(d)(1)), but specifically channels challenges to

13 Title V nondisclosure obligations to the FISC. See 50 U.S.C. § 1861(f). Viewed through this

14 prism—the reality that FISA nondisclosure obligations function largely through FISC orders—

15 the Amended Complaint shows the extent to which plaintiff’s claims would require this Court to

16 interpret the orders of another court.

17

To begin with, Count I plainly would require the Court to focus on any actual FISC

18 orders or directives that the plaintiff may have received, and Count II is unambiguously

19 characterized as an “as-applied” challenge to any FISA requirements imposed on plaintiff. With

20 respect to any such orders or directives, Count I (facial challenge) would require the Court to

21 assess the duration of the nondisclosure obligation imposed on plaintiff relative to the national

22 security harm against which that obligation was intended to protect. Plaintiff’s argument

23 regarding this issue brings the nature of the judicial inquiry into sharp resolve: Plaintiff 24 emphasizes that it “seeks to disclose details about specific FISA orders it has received or will 25 receive as soon as doing so will no longer harm national security.” Am. Compl. ¶ 7; see also id. 26 ¶ 52 (arguing that secrecy provisions violate the First Amendment because they “are not

27

28

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1 narrowly tailored to serve a compelling state interest”).7 In addition, while acknowledging that

2 “genuine national security concerns require that certain information about [FISC] orders be kept

3 secret[,]” plaintiff argues that “at some point, release of information about those orders will no

4 longer harm national security.” Am. Compl. ¶ 7. It is evident, then, that the court adjudicating

5 Count I likely would need to assess, inter alia, how long information regarding any specific

6 orders or directives issued to plaintiff by the FISC, if any (and if challenged by plaintiff), would

7 require protection from disclosure to prevent the harm to national security that nondisclosure 8 provisions in those orders or directives were meant to prevent.8 In any event, there is no doubt

9 that Count I is specifically about any orders or directives that may have been or would be

10 imposed by the FISC on plaintiff – leaving little doubt that adjudication of this claim would

11 directly implicate actions by that court. Both as a matter of comity, and because the FISC is in

12 the best position to assess what harms those nondisclosure provisions were intended to prevent in

13 the first instance, Count I should be brought before the FISC.

14

Likewise, any adjudication of Count II (as-applied challenge) will likely require a court

15 to define the scope of the nondisclosure provisions written into any FISC orders or directives that

16 plaintiff has received, and whether such provisions appropriately conform to the statutory 17 requirements of FISA.9 Indeed, the law is clear: a court must consider the application of a

18 statute before reaching a facial challenge, see Board of Trustees of the State University of N.Y. v.

19 Fox, 492 U.S. 469, 485 (1989), and thus both the facial and as-applied claims should be

20 considered together by the same court whose imposition of secrecy requirements is being

21
22 7 In quoting this portion of the Amended Complaint, the Government does not concede that strict scrutiny, the level of scrutiny invoked by plaintiff in its argument, would be appropriate in this
23 setting.

24 8 As noted above, see supra 12–13, such nondisclosure obligations would be imposed through 25 provisions in a FISC order or directive under Title I, III, IV, and VII; under Title V, the statute
imposes nondisclosure obligations directly on the recipients of FISC orders. 26
27 9 This would be the case for any FISC orders or directives issued pursuant to Titles I, III, IV, or VII; as noted above, for Title V, the nondisclosure obligation would stem from the statute rather
28 than the language in an order or directive. See supra 12–13.

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1 challenged in this case.10 In the Amended Complaint, plaintiff puts at issue the proper

2 interpretation of the scope of those provisions, see Am. Compl. ¶ 6, and contends that “[n]o

3 provision in FISA prohibits or directs the FISC to prohibit the disclosure of aggregate numbers

4 of FISA orders received.” Id. ¶ 19. Plaintiff urges that “Defendants have misinterpreted FISA,

5 which does not prohibit Twitter from disclosing aggregate information . . .”. Id. ¶ 56. But, as

6 discussed above, except for Title V, FISA does not operate on a recipient of process; any secrecy

7 restriction on the disclosure of aggregate amounts or kinds of FISC orders or directives

8 necessarily is based in part on any underlying FISC orders or directives issued under FISC-

9 supervised programs. As with Count I, both as a matter of comity, and because the issuing court

10 “is the best judge of its own orders,” Avila v. Willits Environmental Remediation Trust, 633 F.3d

11 828, 836 (9th Cir. 2011), the FISC should be permitted to make this interpretive determination.

12

Permitting the issuing court to interpret its own orders is particularly appropriate in this

13 setting because, as the FISC has observed, “FISA is a statute of unique character,” and, “as a

14 statute addressed entirely to specialists, it must . . . be read by judges with the minds of

15 specialists.” In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.

16 Supp. 2d 611, 615 (F.I.S.C. 2002), abrogated on other grounds by In re Sealed Case, 310 F.3d

17 717 (F.I.S.C.R. 2002). The FISC, along with the Foreign Intelligence Surveillance Court of

18 Review, “is the arbiter of the FISA’s terms and requirements” and the members of that court

19 develop “specialized knowledge” in the course of their service. Id. The FISC’s expertise in the

20 interpretation of both any orders it may have issued and the statutory scheme it administers

21 presents an additional reason why this Court should decline jurisdiction over Counts I and II.

22 The specialized knowledge of the FISC would also extend to the national security justifications

23 for any surveillance at issue, which its specialized procedures for reviewing and handling such

24 10 In its Amended Complaint, plaintiff has pled that it “either has received a FISA order in the

25 past or has a reasonable fear of receiving one in the future.” Am. Compl. ¶ 7. For purposes of

assessing plaintiff’s as-applied claim, however—and determining whether plaintiff has standing 26 to challenge any given title of FISA in the first instance—any court would need to consider what,

27

if any, secret FISC orders or directives plaintiff has actually received. This presents yet another reason why, if Counts I and II proceed, the FISC is the appropriate setting for plaintiff’s claims,

28 particularly given that court’s institutional provenance over litigation alleged to concern its own

requirements and secret orders or legal process.

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1 information permit it to access. This makes the FISC uniquely capable of assessing the scope of

2 its own orders and the harms that disclosures could cause.

3

In sum, considerations of comity and orderly judicial administration weigh in favor of

4 dismissing Counts I and II, and requiring plaintiff to bring its challenge to the constitutionality of

5 any orders or directives that may have been issued through the FISC’s legal process before the

6 FISC itself. Proceeding in this manner would be consistent with the statutory framework

7 established by Congress and would provide the litigants the benefit of the FISC’s expertise as a

8 court of specialized jurisdiction.

9

II. Plaintiff Has Failed to Establish its Standing to Bring the Espionage Act

10

Challenge in Count III of the Amended Complaint.

11

“The judicial power of the United States . . . is not an unconditioned authority to

12 determine the [validity] of legislative or executive acts,” but is limited by Article III of the

13 Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v.

14 Ams. United for Separation of Church & State., Inc., 454 U.S. 464, 471 (1982). “No principle is

15 more fundamental to the judiciary’s proper role in our system of government.” Clapper v.

16 Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547

17 U.S. 332, 341 (2006)). The requirement that plaintiffs establish their standing to bring their

18 claims is “[o]ne element of [this] case-or-controversy requirement.” Id. (quoting Raines v. Byrd,

19 521 U.S. 811, 818 (1997)). The “irreducible constitutional minimum,” Lujan v. Defs. of Wildlife,

20 504 U.S. 555, 560 (1992), of standing requires that a plaintiff’s injury be “concrete,

21 particularized, and actual or imminent; fairly traceable to the challenged action; and redressable

22 by a favorable ruling.” Amnesty Int’l, 133 S. Ct. at 1147 (quoting Monsanto Co. v. Geertson

23 Seed Farms, 561 U.S. 139, 149 (2010)); see also Nuclear Info. & Res. Serv. v. Nuclear

24 Regulatory Comm’n, 457 F.3d 941, 949 (9th Cir. 2006). As “[t]he party invoking federal

25 jurisdiction,” plaintiff bears the burden to establish these factors. Susan B. Anthony List v.

26 Driehaus, 134 S. Ct. 2334, 2342 (2014) (citation omitted).

27

When, as in this case, “reaching the merits of the dispute would [require a court to]

28 decide whether an action taken by one of the other two branches of the Federal Government was

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1 unconstitutional,” the Supreme Court has emphasized that the standing inquiry is “especially

2 rigorous.” Amnesty Int’l, 133 S. Ct. at 1147 (quoting Raines, 521 U.S. at 819–20)). This is

3 particularly so “in cases in which the Judiciary has been requested to review actions of the

4 political branches in the fields of intelligence gathering and foreign affairs.” Id. (noting that the

5 Supreme Court has “often found a lack of standing in [such] cases”) (collecting cases). Such a

6 rigorous inquiry is required even in cases raising First Amendment claims, where, ordinarily,

7 “the inquiry tilts dramatically toward a finding of standing,” Libertarian Party of Los Angeles

8 County v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013) (citation omitted). See Amnesty Int’l, 133 S.

9 Ct. at 1146–47 (applying “especially rigorous” standing inquiry to, inter alia, plaintiffs’ claims

10 that an intelligence gathering program under FISA violated their First Amendment rights).

11

Federal Rule of Civil Procedure 12(b)(1) requires dismissal when the plaintiff fails to

12 meet its burden of establishing subject-matter jurisdiction, including standing. Oregon v. Legal

13 Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009); St. Clair v. City of Chico, 880 F.2d 199, 201

14 (9th Cir. 1989).

15

Plaintiff has not established standing to bring its Espionage Act claim because its alleged

16 injury arising from that statute is speculative, rather than “actual or imminent” as Article III

17 requires. Three factors determine whether a preenforcement challenge like Count III of the

18 Amended Complaint is justiciable. See, e.g., Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d

19 827, 839 (9th Cir. 2014), cert. denied sub nom. ProtectMarriage.com-Yes on 8 v. Padilla, 135 S.

20 Ct. 1523 (2015). First, the courts consider “whether the plaintiff articulates a concrete plan to

21 violate the law.” Id. (quotation omitted). The second prong typically requires a court to assess

22 “whether the government has communicated a specific warning or threat to initiate proceedings

23 under the statute.” Id. (quotation omitted). “[I]n a pre-enforcement challenge that alleges a free 24 speech violation under the First Amendment,” however, it is sufficient for a plaintiff to 25 “demonstrate that a threat of potential enforcement will cause him to self-censor, and not follow 26 through with his concrete plan to engage in protected conduct.” Id. (citing Wolfson v. Brammer, 27 616 F.3d 1045, 1059–60 (9th Cir. 2010)). Finally, under the third prong, the courts consider “the 28 history of past prosecution under the statute” to determine whether “the government’s active

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Motion to Dismiss the Amended Complaint

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1 enforcement of a statute . . . render[s] the plaintiff’s fear of injury reasonable.” Id. (quotation

2 omitted). The courts “will only conclude that a pre-enforcement challenge is [justiciable] if the

3 alleged injury is ‘reasonable’ and ‘imminent,’ and not merely ‘theoretically possible.’” Id.

4 (quoting Thomas, v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1141 (9th Cir. 1999)).

5

Plaintiff’s attempted pre-enforcement challenge to the Espionage Act meets none of these

6 requirements. As to the first factor, plaintiff has not avowed that it intends to violate the law by

7 disclosing classified information. Indeed, Twitter’s Amended Complaint suggests it understands

8 the need to protect national security information, and does not appear to challenge the

9 Government’s substantive determination as to what information in the draft Transparency Report

10 is classified and, thus, reasonably could be expected to damage national security if disclosed.

11 See generally Am. Compl. Moreover, plaintiff expressly disavows a desire to publish classified

12 information that could harm national security and raise the specter of an Espionage Act

13 prosecution. See Am. Compl. ¶ 7 (alleging plaintiff “seeks to disclose details about specific

14 FISA orders it has received or will receive as soon as doing so will no longer harm national 15 security”). Plaintiff thus evinces no concrete plan to violate the law.11

16

Plaintiff likewise cannot meet the second or third requirements to state a cognizable pre-

17 enforcement challenge: plaintiff does not “confront a realistic danger of sustaining a direct

18 injury as a result of the statute’s operation or enforcement.” Protectmarriage.com—Yes on 8,

19 752 F.3d at 839 (quoting Thomas, 220 F.3d at 1141). As to the second element—a threat of

20 potential enforcement, see, e.g., id. at 839—plaintiff does not allege that the Government has

21 specifically threatened to initiate Espionage Act proceedings against it. See Am. Compl.

22 (generally). Instead, plaintiff states only that it “is informed and believes and is concerned” that

23 if it went forward with its plan, “Defendant DOJ may seek to prosecute Twitter.” See id. ¶ 22 24 (emphasis added). Although a plaintiff bringing a First Amendment challenge may “demonstrate 25 that a threat of potential enforcement will cause him to self-censor, and not follow through with 26 his plan to engage in protected conduct,” rather than showing an actual threat of prosecution,

27 11 Indeed, because it neither avers a desire to disclose classified information nor disputes that the 28 information in question is, in fact, classified, its Espionage Act claim fails on the merits, as well.
Fed. R. Civ. P. 12(b)(6); see infra Part III.

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Motion to Dismiss the Amended Complaint

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1 Protectmarriage.com—Yes on 8, 752 F.3d at 839 (citing Wolfson, 616 F.3d at 1059-60),

2 plaintiff’s unsupported contention that the Government “may” seek to prosecute it does not raise

3 its allegations above the speculative level or demonstrate that a “credible threat of enforcement”

4 exists in this case. Susan B. Anthony List, 134 S. Ct. at 2343 (quoting Holder v. Humanitarian

5 Law Project, 561 U.S. 1, 15 (2010)).

6

Moreover, the need to threaten or undertake any prosecution in circumstances like this –

7 where a party alleges that it is under statutory (or other) non-disclosure obligations in connection

8 with legal process – rarely arises because the law provides other adequate remedies. For

9 example, parties may seek recourse with any court that has issued such process (as plaintiff

10 might here to the extent it challenges legal process issued by the FISC or directives issued under

11 the FISC’s supervision). In addition, individuals who are subject to non-disclosure obligations to

12 protect classified information may seek to challenge substantive classification determinations by

13 the Government, whereupon a court may review whether the information has been properly

14 classified by the Executive Branch. See, e.g., Stillman, 319 F.3d at 548-49 & infra n.15.

15 Especially where plaintiff may avail itself of such remedies and professes that it has no intent or

16 desire to disclose information that would harm national security, plaintiff’s challenge to a

17 speculative threat of future prosecution under the Espionage Act is unmoored from Article III

18 jurisdictional requirements. Count III should therefore be dismissed pursuant to Rule 12(b)(1).

19

III. All of Plaintiff’s Claims Fail Because It is Lawful to Restrict Disclosure of

20

Classified Information Learned Through Participation in a Secret National

Security Investigation.

21 Assuming arguendo the Court finds it has jurisdiction and chooses to exercise it in this

22 case, it should nonetheless dismiss the Amended Complaint because it fails as a matter of law.

23 Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Zucco Partners,

24 LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009); Balistreri v. Pacifica Police Dep’t,

25 901 F.2d 696, 699 (9th Cir. 1990) (“Dismissal can be based on the lack of a cognizable legal

26 theory or the absence of sufficient facts alleged under a cognizable legal theory.”).

27

Here, none of plaintiff’s claims asserts a cognizable legal theory because they are all

28 based on alleged First Amendment harm resulting from an inability to publish information that

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Motion to Dismiss the Amended Complaint

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1 plaintiff does not dispute is classified. Under Count I, plaintiff alleges that the duration of

2 nondisclosure requirements arising from FISA are facially “unconstitutional under the First

3 Amendment.” Am. Compl. ¶ 52. Under Count II, plaintiff alleges that FISA secrecy provisions,

4 as applied through any orders or directives plaintiff may have received, operate “in violation of

5 Twitter’s First Amendment right to speak.” Id. ¶ 57. Finally, under Count III, plaintiff alleges

6 that if the Espionage Act were used to prosecute plaintiff for publication of aggregate data about

7 FISA orders it has received, if any, and other information redacted from its draft Transparency

8 Report, that would be “unconstitutional as violating Twitter’s First Amendment right.” But

9 plaintiff’s Amended Complaint does not allege the information it wishes to publish is not, in fact,

10 properly classified. In short, therefore, plaintiff claims that the First Amendment entitles it to

11 publish any classified national security information that plaintiff may have learned based on

12 being subject to legal process supervised by the FISC, even if such publication were in violation

13 of nondisclosure orders or other requirements.

14

This simply is not the law. The President, Congress, and courts like the FISC may

15 properly restrict the disclosure of information that would harm national security, and that is all

16 they are alleged to have done here.

17

To begin, Article II of the Constitution vests the President as head of the Executive

18 Branch and Commander in Chief (as well as his Executive Branch designees) with the authority

19 to “classify and control access to information bearing on national security.” See Dep’t of Navy v.

20 Egan, 484 U.S. 518, 527 (1998). Likewise, Congress acting pursuant to Article I may fortify the

21 protection of sensitive national security information through statutory law, as it has done, for

22 example, via the FISA secrecy provisions that plaintiff seeks to challenge. Thus, courts have

23 recognized that “Congress has a legitimate interest in authorizing the [Executive Branch] to 24 invoke procedures designed to ensure that sensitive security information is not unnecessarily 25 disseminated to anyone not involved in the surveillance operation in question[.]” United States 26 v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) (rejecting due process challenge to FISA requirements 27 that courts review FISA materials ex parte, in camera); see also, e.g., In re NSA Telecom. 28 Records Litig., 633 F. Supp. 2d 949, 971-72 (N.D. Cal. 2009) (rejecting constitutional challenge

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1 to statute providing for ex parte, in camera review of classified information to establish

2 immunity of telecommunications providers alleged to have assisted in government surveillance).

3 Even apart from FISA, Congress has enacted, and courts have upheld, other statutory protections

4 against the disclosure of classified information. See, e.g., Al Haramain Islamic Found., Inc. v.

5 Dep’t of Treasury, 686 F.3d 965, 982 (9th Cir. 2012) (rejecting due process challenge where

6 classified information was submitted to court only ex parte and in camera to support designation

7 of entity as a foreign terrorist organization and associated freeze of its assets); Global Relief

8 Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir. 2002) (same).

9

In addition, the Supreme Court has made clear that the First Amendment does not permit

10 a person subject to secrecy obligations to disclose national security information. See Snepp, 444

11 U.S. at 510. In Snepp, the Supreme Court considered whether a former CIA employee’s

12 nondisclosure agreement was an improper prior restraint on free speech. Concluding that it was

13 not, but rather that it was reasonable and enforceable, the Court recognized the Government’s

14 compelling interest in the protection of national security:

15

The Government has a compelling interest in protecting both the secrecy of

16

information important to our national security and the appearance of

confidentiality so essential to the effective operation of our foreign intelligence

17

service.

18 Snepp, 444 U.S. at 509 n.3; see also Egan, 484 U.S. at 527; Haig v. Agee, 453 U.S. 280, 307

19 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.”). In

20 light of this compelling interest, courts have concluded that persons subject to secrecy

21 obligations have no First Amendment right to publish properly classified information: “[i]f the

22 Government classified the information properly, then [plaintiff] simply has no first amendment

23 right to publish it.” Stillman, 319 F.3d at 548; see also Snepp, 444 U.S. at 509 n.3; McGehee v.

24 Casey, 718 F.2d 1137, 1143 (D.C. Cir. 1983); United States v. Marchetti, 466 F.2d 1309, 1315-

25 16 (4th Cir. 1972) (“Although the First Amendment protects criticism of the government,

26 nothing in the Constitution requires the government to divulge [national security]

27

28

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Motion to Dismiss the Amended Complaint

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1 information.”).12 Here, plaintiff would possess information about any FISA process it may have

2 received due solely to the fact that it is an electronic communication service provider subject to

3 the receipt of legal process and attendant nondisclosure obligations under law.

4

Indeed, even in cases not involving classified information, numerous judicial decisions

5 make clear that restrictions on a party’s disclosure of information obtained through involvement

6 in confidential judicial proceedings do not offend the First Amendment. In Seattle Times Co. v.

7 Rhinehart, 467 U.S. 20 (1984), the Supreme Court upheld the constitutionality of a judicial order

8 that prohibited parties to a civil suit from disclosing sensitive information obtained through

9 pretrial discovery. In rejecting a First Amendment challenge to the order, the Court noted that

10 the parties “gained the information they wish to disseminate only by virtue of the trial court’s

11 discovery processes,” which was made available as a matter of legislative grace rather than

12 constitutional right. 467 U.S. at 32. The Court found that “control over [disclosure of] the

13 discovered information does not raise the same specter of . . . censorship that such control might 14 suggest in other situations.” Id.13

15 12 Plaintiff’s initial Complaint appears to allege that, to the extent it has received any FISA 16 process (and thus to the extent it would have standing to raise the claims in the Amended
Complaint), its employees have executed nondisclosure agreements like the one enforced in, e.g., 17 Snepp. See Compl. ¶¶ 18, 45. The Supreme Court also concluded in Snepp that, even in the
absence of an express agreement, the Government could have imposed reasonable restrictions on 18 the plaintiff’s activities to protect compelling national security interests. 444 U.S. at 509 n.3.

19 13 See also Butterworth v. Smith, 494 U.S. 624, 632 (1990) (holding a grand jury witness could

20 disclose the substance of his testimony after the term of the grand jury had ended because “we

21

deal only with [the witness’s] right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of

22 his participation in the proceedings of the grand jury.”) (emphasis added); id. at 636 (Scalia, J.,

concurring) (“[q]uite a different question is presented . . . by a witness’ disclosure of the grand

23 jury proceedings, which is knowledge he acquires not ‘on his own’ but only by virtue of being

24

made a witness.”); Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003) (“a [constitutional] line should be drawn between information the witness possessed prior to

25 becoming a witness and information the witness obtained through her actual participation in the

grand jury process”; upholding statute prohibiting disclosure of, inter alia, information sought by 26 prosecution in grand jury); In Re Subpoena to Testify, 864 F.2d 1559, 1562 (11th Cir. 1989)

27

(similar); First Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467, 479 (3d Cir. 1986) (en banc) (state may prohibit witnesses and other persons “from disclosing proceedings

28 taking place before” a judicial misconduct investigation board). Cf. Doe v. Mukasey, 549 F.3d

861, 877 (2d Cir. 2008) (distinguishing between a nondisclosure requirement imposed by the

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1

In sum, to the extent plaintiff is challenging the existence of secrecy obligations that have

2 been imposed on it pursuant to statutory law, judicial order, and/or non-disclosure agreements

3 with the Executive Branch, the law is clear that the President and Congress may protect

4 classified national security information and that any restrictions on disclosure of undisputedly

5 classified information at issue here would not violate the First Amendment. This includes any

6 restrictions imposed by orders of the FISC or directives issued under its supervision pursuant to

7 FISA. “If the Government classified the information properly, then [plaintiff] simply has no first

8 amendment right to publish it,” and its claims fail as a matter of law. Stillman, 319 F.3d at 548;

9 see also Snepp, 444 U.S. at 509 n.3.

10

Accordingly, because plaintiff does not dispute that the information it seeks to publish is

11 classified,14 and because plaintiff would have obtained any information pertaining to FISA

12 process in the course of FISC proceedings, its claims all fail as a matter of law.

13

CONCLUSION

14

For the foregoing reasons, the Court should dismiss plaintiff’s Amended Complaint.

15 16 Dated: January 15, 2016

Respectfully submitted,

17

BENJAMIN C. MIZER

18

Principal Deputy Assistant Attorney General

19

BRIAN STRETCH

Acting United States Attorney

20

21

ANTHONY J. COPPOLINO Deputy Branch Director

22

23 FBI without prior judicial supervision and those in proceedings in which “interests in secrecy 24 arise from the nature of the proceeding”).

25 14 If plaintiff were to allege that the information in its draft Transparency Report is not properly

classified, contrary to the Executive Branch determination, the law provides a way for a court to 26 adjudicate that claim. See, e.g., Stillman, 319 F.3d at 548–49 (in cases challenging agency

27

determinations that information cannot be published because it is classified, “in camera review of affidavits, followed if necessary by further judicial inquiry, will be the norm” with the

28 “appropriate degree of deference” given to the Executive Branch concerning its classification

decisions) (quoting McGehee, 718 F.2d at 1149).

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1

/s/ Julia A. Berman STEVEN Y. BRESSLER

2

JULIA A. BERMAN

Attorneys

3

U.S. Department of Justice

4

Civil Division, Federal Programs Branch P.O. Box 883

5

Washington, D.C. 20044

Julia.Berman@usdoj.gov 6

7

Attorneys for Defendants

8

9

10

11

12

13

14

15

16

17

18

19

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Motion to Dismiss the Amended Complaint

 
 Case 4:14-cv-04480-YGR Document 113 Filed 05/02/16 Page 1 of 9

United States District Court Northern District of California

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
TWITTER, INC., 4
Plaintiff, 5
v. 6
ERIC H. HOLDER, ET AL., 7
Defendants. 8

Case No. 14-cv-04480-YGR
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AMENDED COMPLAINT
Re: Dkt. No. 94

9

On November 13, 2015, Plaintiff Twitter, Inc. filed its Amended Complaint (Dkt. No. 88,

10 “AC”) following this Court’s Order of October 14, 2015, directing that Twitter amend the

11 complaint in light of the enactment of the USA FREEDOM Act of 2015. (Dkt. No. 85.)

12 Defendants Loretta Lynch, et al. (“the Government”) again move to dismiss the amended

13 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for prudential

14 reasons.

15

The Amended Complaint alleges that the Government has precluded Twitter from

16 publishing a “Transparency Report” containing certain data about aggregate numbers of legal

17 process it has received, if any, including requests pursuant to the Foreign Intelligence Surveillance

18 Act (“FISA”) and National Security Letters (“NSLs”). Twitter alleges that the non-disclosure

19 provisions in the FISA are unconstitutional on its face because precluding disclosure indefinitely

20 violates the First Amendment. Twitter further alleges that, to the extent the Government is basing

21 its prohibition on publication of Twitter’s draft Transparency Report on FISA’s non-disclosure

22 provisions, and would seek to prosecute Twitter under the Espionage Act for publication of the

23 Transparency Report, those statutes violate the First Amendment as applied to Twitter.

24

In its motion to dismiss the Amended Complaint (Dkt. No. 94), the Government seeks

25 dismissal of Twitter’s claims on the grounds that: (1) the First Amendment claims should be

26 dismissed in the interests of comity in favor of the FISA court taking jurisdiction over such

27 claims; (2) Twitter has no standing to bring the Espionage Act claim; and (3) all three claims fail

28 to allege a cognizable theory because they are based upon a prohibition on publishing information

Case 4:14-cv-04480-YGR Document 113 Filed 05/02/16 Page 2 of 9

United States District Court Northern District of California

1 that Twitter acknowledges is classified and Twitter has not challenged that classification decision.

2

Having carefully considered the papers submitted and the pleadings in this action,1 and for

3 the reasons set forth below, the Court hereby GRANTS IN PART AND DENIES IN PART the

4 Government’s Partial Motion to Dismiss the Amended Complaint. The motion to dismiss on

5 grounds of comity in favor of jurisdiction with the Foreign Intelligence Surveillance Court

6 (“FISC”) and to dismiss for lack of standing on the Espionage Act claim is DENIED. The motion

7 to dismiss Twitter’s as-applied and facial First Amendment challenges concerning limits on

8 disclosure of classified aggregate data is GRANTED because Twitter has failed to allege a

9 challenge to the underlying classification decisions themselves.

10 I.

BACKGROUND

11

On April 1, 2014, Twitter submitted to the Government a draft transparency report

12 containing information and discussion about the aggregate numbers of NSLs and FISA orders, if

13 any, it received in the second half of 2013. Twitter requested “a determination as to exactly

14 which, if any, parts of its Transparency Report are classified or, in the [government’s] view, may

15 not lawfully be published online.” (AC ¶ 4.) Five months later, on September 9, 2014, the

16 Government, in a letter from James A. Baker, General Counsel of the Federal Bureau of

17 Investigation, notified Twitter that “information contained in the report is classified and cannot be

18 publicly released” because it does not comply with the government’s approved framework for 19 reporting data about FISA orders and NSLs. (AC ¶ 5.)2

20 II. APPLICABLE STANDARD

21

A. Motion Under Rule 12(b)(1)

22

Federal Rule of Civil Procedure 12(b)(1) requires dismissal when the plaintiff fails to meet

23 its burden of establishing subject-matter jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201

24

25

1 The Court has also considered two amicus briefs filed in connection with this motion.

26 (See Dkt. Nos. 96, 101.)

27

2 Six weeks after Twitter filed this lawsuit, on November 17, 2014, the Government

28

prepared a redacted version of the draft transparency report that it agreed could be released publicly by Twitter. (Dkt. No. 21.)

2

Case 4:14-cv-04480-YGR Document 113 Filed 05/02/16 Page 3 of 9

United States District Court Northern District of California

1 (9th Cir. 1989). Rule 12(b)(1) dismissal is proper when the plaintiff fails to establish the elements

2 of standing. Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009). “The plaintiff bears

3 the burden of proof to establish standing ‘with the manner and degree of evidence required at the

4 successive stages of the litigation.’” Oregon v. Legal Servs. Corp., 552 F.3d 965, 969-70 (9th Cir.

5 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). At the pleading stage,

6 “general factual allegations of injury resulting from the defendant’s conduct may suffice,” because

7 we “‘presume that general allegations embrace those specific facts that are necessary to support

8 the claim.’” Lujan, 497 U.S. at 561.

9

The “constitutional minimum” requirements for standing set forth in Lujan require first

10 that the plaintiff show it has suffered an “injury in fact,” that is “an invasion of a legally protected

11 interest which is (a) concrete and particularized,” and “(b) ‘actual or imminent, not ‘conjectural’ or

12 ‘hypothetical.’” Lujan, 497 U.S. at 560 (internal citations omitted). Second, Lujan requires that

13 the plaintiff show a causal connection between alleged injury and alleged conduct, i.e. that the

14 injury is “fairly traceable” to the challenged action. Id. Third, the plaintiff must show that it is

15 “likely,” not merely “speculative,” that the injury will be “redressed by a favorable decision.” Id.

16 at 561. The “fairly traceable” and “redressability” requirements overlap and are “two facets of a

17 single causation requirement.” Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1146 (9th

18 Cir. 2013) (quoting Allen v. Wright, 468 U.S. 737, 753 n. 19 (1984)). The two are distinct insofar

19 as causality examines the connection between the alleged misconduct and injury, whereas

20 redressability analyzes the connection between the alleged injury and requested judicial relief. Id.

21 Redressability does not require certainty, but only a substantial likelihood that the injury will be

22 redressed by a favorable judicial decision. Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir.

23 2010).

24

B. Motion Under Rule 12(b)(6)

25

Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon

26 which relief may be granted against that defendant. Dismissal may be based on either “the lack

27 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 28 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson

3

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1 v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)). To avoid dismissal under

2 Rule 12(b)(6), a complaint must plead “enough facts to state a claim [for] relief that is plausible

3 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on

4 its face “when the plaintiff pleads factual content that allows the court to draw the reasonable

5 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). All allegations of material fact are taken as true and construed in the light most 6

favorable to the plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). 7
If the facts alleged do not support a reasonable inference of liability, stronger than a mere 8
possibility, the claim must be dismissed. Iqbal, 556 U.S. at 678-79; see also In re Gilead Scis. 9
Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (the court is not required to accept as true
10 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

11 inferences”).

12

C. Prudential Considerations Warranting Dismissal

13

In addition, claims under the Declaratory Judgment Act may be dismissed based on

14 prudential considerations such as the principle of comity in relation to other courts. See 28 U.S.C.

15 § 2201(a); accord Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995) (recognizing discretionary

16 nature of declaratory relief); NRDC v. EPA, 966 F.2d 1292, 1299 (9th Cir. 1992) (same). That is

17 because “[i]n the declaratory judgment context, the normal principle that federal courts should

18 adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial

19 administration.” Wilton, 515 U.S. at 288. The Ninth Circuit has held that “as a matter of comity

20 and of the orderly administration of justice…[a] court should refuse to exercise its jurisdiction to

21 interfere with the operation of a decree of another federal court.” Lapin v. Shulton, Inc., 333 F.2d

22 169, 172 (9th Cir. 1964).

23 III. DISCUSSION

24

A. General Statutory Background

25

1. FISA Orders and Directives

26

Various provisions of the FISA allow the Government to obtain information from

27 electronic communication service providers, either directly or by way of an order from the FISC,

28

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1 subject to nondisclosure obligations. FISA requires that FISC orders, upon the request of the

2 applicant or a finding of supporting facts by the court, “shall direct” recipients to provide the

3 government with “all information, facilities, or technical assistance necessary to accomplish the

4 electronic surveillance in such a manner as will protect its secrecy” and that the provider

5 “maintain under security procedures approved by the Attorney General and the Director of

6 National Intelligence any records concerning the surveillance or the aid furnished that such person

7 wishes to retain.” 50 U.S.C. § 1805(c)(2)(B), (C). FISA also permits the Attorney General and

8 Director of National Intelligence (“DNI”) to obtain approval from the FISC for authority to target

9 “persons reasonably believed to be located outside the United States to acquire foreign intelligence

10 information.” 50 U.S.C § 1881a(h)(1)(A). Once that FISC approval is obtained, the Attorney

11 General and DNI have the power to issue a directive for acquisition of information requiring an

12 electronic communication service provider to “provide the Government with all information,

13 facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the

14 secrecy of the acquisition” and to “maintain under security procedures approved by the Attorney

15 General and the Director of National Intelligence any records concerning the acquisition.” 50

16 U.S.C. § 1881a(h)(1)(A), (B). Other FISA search and surveillance provisions similarly mandate

17 that any orders or directives include provisions requiring secrecy about the request itself, as well 18 as the fruits of the request.3

19

FISA provides procedures whereby challenges to its orders may be brought by recipients

20 of requests. For instance, a party receiving a production order under Title V’s business records

21

22

3 See 50 U.S.C. § 1824(c)(2)(B)-(C) (Title III orders “shall direct” the recipient to (a)

assist in the physical search “in such a manner as will protect its secrecy” and (a) that the recipient 23 retains be maintained under appropriate security procedures “any records concerning the search or

24

the aid furnished”); 50 U.S.C. § 1842(d)(2)(B) (Title IV orders “shall direct” that recipients “furnish any information, facilities, or technical assistance necessary to accomplish the installation

25 and operation of the pen register or trap and trace device in such a manner as will protect its

secrecy,” “shall not disclose the existence of the investigation,” and shall maintain “any records

26 concerning the pen register or trap and trace device or the aid furnished” under appropriate

security procedures); 50 U.S.C. § 1861(d)(1) (providing that “[n]o person shall disclose to any 27 other person that the [FBI] has sought or obtained tangible things pursuant to an order under” Title

28 V of FISA).

5

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1 provision “may challenge the legality of that order by filing a petition with” the FISC. 50 U.S.C.

2 § 1861(f)(2)(A)(i). FISA further provides that the FISC has “inherent authority…to determine or

3 enforce compliance with” the orders, rules, or procedures of the FISC. 50 U.S.C. § 1803(h).

4

B. Motion to Dismiss on Comity Grounds

5

The Government argues that the Court should exercise its discretion to decline jurisdiction

6 over Counts I and II in the Amended Complaint based upon prudential considerations of comity.

7 “In the declaratory judgment context, the normal principle that federal courts should adjudicate

8 claims within their jurisdiction yields to considerations of practicality and wise judicial

9 administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Thus, a district court has

10 discretion to decline to exercise jurisdiction over Declaratory Judgment Act claims based on

11 prudential considerations. See 28 U.S.C. § 2201(a). In exercise of this discretion, the Court may

12 take into account concerns of judicial administration, comity, and fairness to the litigants.

13 Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005).

14

The Government contends that the nondisclosure obligations incurred by recipients of

15 FISA process are imposed through orders of the FISC, directives made after a FISC-approved

16 certification, or as part of a legal process that the FISC oversees. The Government argues that

17 Twitter’s challenge is, in actuality, a challenge to decisions of the FISC. Consequently, it urges

18 that this Court should yield jurisdiction over Twitter’s FISA-related claims to the FISC.

19

The Government does not identify any order of the FISC addressing, as a general matter,

20 publication of aggregate data about receipt of legal process, the crux of the matter before the Court

21 here. Likewise, Twitter’s Amended Complaint does not challenge any prohibition on disclosure in

22 any individual FISC order, FISA directive, or NSL. Rather, Twitter contends that the

23 Government’s reliance on the FISA non-disclosure provisions as a basis for prohibiting disclosure

24 of aggregate data about legal process directed to Twitter violates the First Amendment. Nothing

25 in the Amended Complaint would require the Court to interpret, review, or grant relief from any

26 particular FISC order or directive. Thus, the Government’s reliance on Lapin, 333 F.2d at 172,

27 and Treadaway v. Acad. of Motion Picture Arts & Sci., 783 F.2d 1418, 1422 (9th Cir. 1986), is

28 unavailing. The motion on these grounds is DENIED. 6

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1

C. Motion To Dismiss Espionage Act Claim

2

The Government next moves to dismiss Twitter’s claim challenging application of the

3 Espionage Act. Twitter alleges that, to the extent the Government has notified it that publication

4 of its Transparency Report could result in a violation of the Espionage Act, application of the Act

5 would violate the First Amendment to the Constitution. The Government contends that Twitter’s

6 allegations do not establish standing. The Government argues that, here, any alleged injury to

7 Twitter is merely speculative, rather than the “actual or imminent” injury that Article III of the

8 United States Constitution requires.

9

“The judicial power of the United States…is not an unconditioned authority to determine

10 the [validity] of legislative or executive acts,” but is limited by Article III of the Constitution “to

11 the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Ams. United for

12 Separation of Church & State., Inc., 454 U.S. 464, 471 (1982). To establish standing for a pre-

13 enforcement challenge, as here, the Court must consider: “whether the plaintiff articulates a

14 concrete plan to violate the law;” “whether the government has communicated a specific warning

15 or threat to initiate proceedings under the statute;” “the history of past prosecution under the

16 statute” and whether “the government’s active enforcement of a statute…render[s] the plaintiff’s

17 fear of injury reasonable.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 839 (9th Cir.

18 2014), cert. denied sub nom ProtectMarriage.com-Yes on 8 v. Padilla, 135 S.Ct. 1523 (2015).

19

The Court finds that the allegations here—that Twitter presented the draft Transparency

20 Report it planned to publish to the Government and that the Government informed Twitter that it

21 could not publish the information because it is classified—are sufficient to show an “imminent”

22 injury to establish Twitter’s standing here. The Government’s contention that the threat of

23 prosecution is low because there are other avenues of recourse for Twitter to challenge individual

24 nondisclosure orders simply does not address the issue here, reporting of aggregate data. The

25 motion to dismiss the Espionage Act claim on these grounds is DENIED.

26

D. Sufficiency of Allegations on Constitutional Challenges (Counts I and II)

27

Finally, the Government argues that Twitter has failed to allege facts sufficient to state a

28 First Amendment challenge because, as Twitter has conceded, the reason the aggregate data 7

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1 cannot be published is that it has been classified by the Government. Under Executive Order

2 13526, information may be classified by the “original classification authority determines that the

3 unauthorized disclosure of the information reasonably could be expected to result in damage to the

4 national security, which includes defense against transnational terrorism, and the original

5 classification authority is able to identify or describe the damage.” Exec. Order 13526 § 1.1(a)(4).

6 The Executive Order sets forth various classification levels, who holds original classification

7 authority, and to whom such authority may be delegated. Id. at §§ 1.2, 1.3(a), (c). All

8 classification determinations are of limited duration and classification decisions are required to

9 contain a “declassify on” date. See Exec. Order No. 13526 § 1.5(a) (Dec. 29, 2009) (“At the time

10 of original classification, the original classification authority shall establish a specific date or event

11 for declassification based on the duration of the national security sensitivity of the information.

12 Upon reaching the date or event, the information shall be automatically declassified.”).

13

The First Amendment does not permit a person subject to secrecy obligations to disclose

14 classified national security information. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)

15 (per curiam); Wilson v. C.I.A., 586 F.3d 171, 183 (2d Cir. 2009); see also Stillman v. CIA, 319

16 F.3d 546, 548–49 (D.C. Cir. 2003) (describing procedures for challenge to classification decision).

17 The Court agrees with the Government that Twitter has not alleged that the information is not

18 properly classified by the Government. Count I challenges the FISA non-disclosure provisions as

19 being prior restraints of indefinite duration, but the claim does not take into account the fact that a

20 classification decision is necessarily limited in duration by its nature, as the Government asserts.

21 Along those same lines, Count II’s as-applied challenge contends that the FISA nondisclosure

22 provisions are unconstitutional, but does not account for the fact that the Government has refused

23 to permit disclosure of the aggregate numbers on the grounds that the information is classified

24 pursuant to the Executive Order (not because of any FISA order or provision).

25

Again, Twitter has conceded that the aggregate data is classified. In the absence of a

26 challenge to the decisions classifying that information, Twitter’s Constitutional challenges simply

27 do not allege viable claims.

28 8

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United States District Court Northern District of California

1 IV. CONCLUSION

2

Accordingly, the Motion to Dismiss the Amended Complaint is GRANTED IN PART AND

3 DENIED IN PART. Twitter is given leave to amend to allege a challenge to the classification

4 decisions at issue, as well as any other cognizable challenge consistent with that classification

5 challenge. Twitter shall file its amended complaint no later than May 24, 2016. The Government

6 shall have 21 days thereafter to respond.

7

This terminates Docket No. 94.

8

IT IS SO ORDERED.

9 Dated: May 2, 2016

10

______________________________________

11

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

12

13

14

15

16

17

18

19

20

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22

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28 9

 
 Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 1 of 26

1 MAYER BROWN LLP ANDREW JOHN PINCUS (Pro Hac Vice)
2 apincus@mayerbrown.com 1999 K Street, NW
3 Washington, DC 20006 Tel: (202) 263-3220 / Fax: (202) 263-3300
4
MAYER BROWN LLP 5 LEE H. RUBIN (SBN 141331)
lrubin@mayerbrown.com 6 Two Palo Alto Square, Suite 300
3000 El Camino Real 7 Palo Alto, CA 94306-2112
Tel: (650) 331-2000 / Fax: (650) 331-2060 8
PERKINS COIE LLP 9 MICHAEL A SUSSMANN (Pro Hac Vice)
MSussmann@perkinscoie.com 10 700 Thirteenth Street, NW, Suite 600
Washington, DC 20005-3960 11 Tel: 202-654-6333 / Fax: 202-654-9127

12 Attorneys for Plaintiff Twitter, Inc.

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17 TWITTER, INC.,

Case No. 14-cv-4480-YGR

18

Plaintiff,

19

v.

20 LORETTA LYNCH, Attorney General of the United States,
21
THE UNITED STATES DEPARTMENT OF 22 JUSTICE,

SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF PURSUANT TO 28 U.S.C. §§ 2201 and 2202

23 JAMES COMEY, Director of the Federal Bureau of Investigation, and THE FEDERAL
24 BUREAU OF INVESTIGATION,

25

Defendants.

26

27

28

SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 2 of 26

1

I. NATURE OF THE ACTION

2

1. Twitter, Inc. (“Twitter”) brings this action for a declaratory judgment and

3 permanent injunction pursuant to 28 U.S.C. §§ 2201 and 2202, requesting relief from

4 prohibitions on its speech in violation of the First Amendment.

5

2. The U.S. government engages in extensive but incomplete speech about the scope

6 of its national security surveillance activities as they pertain to U.S. communications providers,

7 such as Twitter. At the same time, those communications providers are tightly constrained in

8 providing information regarding the scope (i.e., amount) of national security surveillance-related

9 requests they receive.

10

3. Twitter is firmly committed to providing meaningful transparency to its users and

11 the public. Since 2012, Twitter has published a biannual transparency report that sets forth

12 numbers of requests it receives for user information from governments across the globe,

13 including the U.S. government.

14

4. Twitter seeks to publish information contained in a draft Transparency Report that

15 describes the amount of national security legal process that it received, if any, for the period July

16 1 to December 31, 2013, from the Foreign Intelligence Surveillance Court (“FISC”). In this

17 Transparency Report, Twitter does not seek to disclose any information or details concerning any

18 specific order from the FISC that it may have received. Twitter’s draft Transparency Report

19 instead reveals the actual aggregate number of Foreign Intelligence Surveillance Act (“FISA”)

20 orders received (if any), the volume of FISA orders received by comparison to government-

21 approved reporting structures, and similar information. Twitter also seeks to disclose that it

22 received “zero” FISA orders, or “zero” of a specific kind of FISA order, for that period, if either

23 of those circumstances is true.

24

5. Twitter submitted its draft Transparency Report to Defendants for review on April

25 1, 2014. Five months later, Defendants informed Twitter that “information contained in the

26 [transparency] report is classified and cannot be publicly released” because it does not comply

27 with the government’s pre-approved framework for reporting data about government requests in

28 national security investigations.
1
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1

6. Defendants’ response means that Twitter cannot speak about the volume of

2 national security legal process it has received except in ways that have been pre-approved by

3 government officials. Defendants initially took the position that communications providers like

4 Twitter are prohibited even from saying that they have received zero national security requests,

5 or zero of a particular kind of national security request, although Defendants later conceded that

6 providers who received zero national security requests for a six-month period can say so, as such

7 information could not be classified. (In addition, a number of providers who, presumably, have

8 received some orders from the FISC have disclosed publicly that they received zero of a

9 particular kind of FISA order, and Twitter is unaware of any comment or action by Defendants to

10 indicate such disclosures are unlawful). Twitter’s ability to respond to government statements

11 about the scope of its national security surveillance activities generally and to speak about the

12 scope of those activities with respect to Twitter users specifically is being unconstitutionally

13 restricted by Defendants’ interpretation of statutes as prohibiting and even criminalizing a

14 provider’s mere disclosure of the number of FISA orders that it has received, if any.

15

7. Twitter either has received a FISA order in the past or has a reasonable

16 expectation of receiving one in the future. Twitter recognizes that genuine national security

17 concerns require that certain details about such orders, such as the specific target of surveillance,

18 be kept secret. Twitter does not seek through this Complaint to disclose the contents of any FISA

19 orders it may have or will receive.

20

8. Disclosure of the number of the different types of orders that Twitter has or may

21 have received reveals nothing about the content or subjects of such orders, particularly given

22 Twitter’s more than 310 million active members.

23

9. In addition, the government’s legitimate interest in secrecy cannot last forever,

24 and at some point, release of information about those orders will no longer harm national

25 security. Despite this fact and in spite of its stated legal obligations, Defendants have refused to

26 indicate when, if ever, they will allow Twitter to release any information on the volume of

27 national security legal process it has received that goes beyond the pre-approved categories they

28 have heretofore allowed.
2
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1

10. Certain provisions in FISA require court orders issued thereunder to ensure

2 nondisclosure, while other provisions in FISA directly require nondisclosure. In both cases, the

3 nondisclosure required is of unlimited duration. These restrictions constitute an unconstitutional

4 prior restraint and content-based restriction on, and government viewpoint discrimination

5 against, Twitter’s right to speak about information of national and global public concern. Twitter

6 is entitled under the First Amendment to respond to its users’ concerns and to the statements of

7 U.S. government officials by providing more complete information about the limited scope of

8 U.S. government surveillance of Twitter user accounts.

9

11. Defendants have displayed a pattern of overly expansive, delayed, conflicting,

10 and improper actions with regard to classification decisions and the resulting disclosures that

11 providers generally, and Twitter specifically, are permitted to make about the receipt of national

12 security legal process. This results in chilling and prohibiting far more speech than the

13 Constitution tolerates. Twitter requires court intervention to rein in this undisciplined abuse of

14 government discretion to control public speech.

15

II. PARTIES

16

12. Plaintiff Twitter is a corporation with its principal place of business located at

17 1355 Market Street, Suite 900, San Francisco, California. Twitter is a global information sharing

18 and distribution network serving over 310 million monthly active users around the world. People

19 using Twitter write short messages, called “Tweets,” of 140 characters or fewer, which are

20 public by default and may be viewed all around the world instantly. As such, Twitter gives a

21 public voice to anyone in the world—people who inform and educate others, who express their

22 individuality, who engage in all manner of political speech, and who seek positive change.

23 Twitter is an electronic communication service (“ECS”), as that term is defined at 18 U.S.C. §

24 2510(15), since it provides its users the ability to send and receive electronic communications.

25 As an ECS and a third-party provider of communications to the public, Twitter is subject to the

26 receipt of a variety of civil, criminal, and national security legal process, including court orders

27 issued under FISA. Compliance with such legal process can be compelled through the aid of a

28 court.
3
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1

13. Defendant Loretta Lynch is the Attorney General of the United States and heads

2 the United States Department of Justice (“DOJ”). She is sued in her official capacity only.

3

14. Defendant DOJ is an agency of the United States. Its headquarters are located at

4 950 Pennsylvania Avenue, NW, Washington, D.C.

5

15. Defendant James Comey is the Director of the Federal Bureau of Investigation

6 (“FBI”). He is sued in his official capacity only.

7

16. Defendant FBI is an agency of the United States. Its headquarters are located at

8 935 Pennsylvania Avenue, NW, Washington, D.C.

9

III. JURISDICTION

10

17. This Court has original subject matter jurisdiction under 28 U.S.C. § 1331, as this

11 matter arises under the Constitution, laws, or treaties of the United States. More specifically, this

12 Court may provide injunctive relief and declaratory relief under the Declaratory Judgment Act,

13 28 U.S.C. §§ 2201–2202, relating to, among other things, Twitter’s contention that certain

14 nondisclosure requirements and related penalties concerning the receipt of court orders issued

15 under FISA, as described below, are unconstitutionally restrictive of Twitter’s First Amendment

16 rights, either on their face or as applied to Twitter. This Court is authorized to issue a declaratory

17 judgment and injunction against Defendants under 5 U.S.C. § 702.

18

IV. VENUE

19

18. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

20 of the events giving rise to the action occurred in this judicial district, Twitter resides in this

21 district, Twitter’s speech is being unconstitutionally restricted in this district, and Defendants are

22 officers and employees of the United States or its agencies operating under the color of law.

23

V. FACTUAL BACKGROUND

24 A. 25

FISA Provisions, Including Nondisclosure Obligations 19. Five subsections (“Titles”) of FISA permit the government to seek real-time

26 surveillance or disclosure of stored records from an ECS like Twitter: Title I (electronic

27 surveillance of the content of communications and all communications metadata); Title III

28 (disclosure of stored content and noncontent records); Title IV (provisioning of pen register and
4
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1 trap and trace devices to obtain dialing, routing, addressing, and signaling information); Title V

2 (disclosure of certain “business records”) (also referred to as “Section 215 of the USA PATRIOT

3 Act”); and Title VII (surveillance of non-U.S. persons located beyond U.S. borders). In the case

4 of orders issued pursuant to Titles I, III, IV and V, surveillance of the specified target is

5 approved by the FISC; under Title VII, the FISC annually approves procedures for surveillance,

6 but the government selects targets of surveillance without court supervision.

7

20. Each of these Titles of FISA contains a restriction that limits a provider’s ability

8 to disclose information relating to a specific FISA request. Several provisions require the FISC

9 to direct the recipient of a FISA request to comply in such a manner as will protect the secrecy of

10 the court-ordered electronic surveillance, physical search, or installation of a pen register or trap

11 and trace device, or the acquisition of foreign intelligence information, 50 U.S.C. §§

12 1805(c)(2)(B) (Title I); 1824(c)(2)(B) (Title III); 1842(d)(2)(B) (Title IV); 1881a(h)(1)(A) (Title

13 VII). FISA also contains provisions that directly instruct the recipient of a FISA order that it may

14 not disclose the existence of a pen register or trap and trace device “unless or until ordered by the

15 court,” 50 U.S.C. §§ 1842(d)(2)(B) (Title IV), and that it may not “disclose to any other person”

16 the existence of a business records order, 50 U.S.C. § 1861(d)(1) (Title V).

17

21. No provision in FISA prohibits or directs the FISC to prohibit the disclosure of

18 aggregate numbers of FISA orders received.

19

22. Defendants have taken the position that the aggregate number of FISA orders

20 received by a particular ECS may only be disclosed in accordance with the pre-approved

21 categories established by the Uniting and Strengthening America by Fulfilling Rights and

22 Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268

23 (2015), codified in relevant part at 50 U.S.C. § 1874 (“USA FREEDOM Act” or “USAFA”).

24 (Dkt. No. 83.) Defendants contend that because the Twitter draft Transparency Report includes

25 aggregate data that is different and more detailed than the categories permitted by the Act, the

26 publication of the draft Transparency Report would constitute an unauthorized disclosure of

27 classified information.

28
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1

23. Defendants have not disclosed the basis for their claimed determination that

2 Twitter’s draft Transparency Report contains classified information. For example, in the FBI’s

3 letter to Twitter denying Twitter’s request to publish the draft Transparency Report, the FBI

4 neither identified the classifying authority who made the determination, the date until which the

5 information allegedly classified may not be disclosed, or the reasons for the claimed

6 classification decision. See Letter from James A. Baker, Gen. Counsel, FBI, to Michael A.

7 Sussmann (Sept. 9, 2014) (Dkt. No. 1, Ex. 5.); see ¶ 57 infra.

8 B. 9

Classified National Security Information 24. On December 29, 2009, President Obama issued Executive Order No. 13526,

10 which sets forth the federal government’s policies and procedures for “classifying, safeguarding,

11 and declassifying national security information.” The Executive Order is predicated upon a

12 “commitment to open Government through accurate and accountable application of classification

13 standards and routine, secure, and effective declassification . . . .” Exec. Order No. 13526,

14 Preface.

15

25. Executive Order No. 13526 modified regulations codified at 32 C.F.R. Part 2001

16 “Classified National Security Information.”

17

26. Executive Order No. 13526 distinguishes between two basic methods of

18 classifying information—“original classification” and “derivative classification.” “‘Original

19 classification’ means an initial determination that information requires, in the interest of the

20 national security, protection against unauthorized disclosure.” Exec. Order No. 13526 § 6.1(ff).

21 By contrast, “‘[d]erivative classification” means the “incorporating, paraphrasing, restating, or

22 generating in new form information that is already classified, and marking the newly developed

23 material consistent with the classification markings that apply to the source information.” Id. §

24 6.1(o).

25

27. Individuals who “reproduce, extract, or summarize classified information” are

26 bound to “observe and respect original classification decisions.” Id. § 2.1.

27

28. Information may be originally classified only if it meets several requirements: (1)

28 it must be classified by an “original classification authority”—officials who are identified in
6
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1 section 1.3 of the Executive Order; (2) the information must be “owned by, produced by or for,

2 or is under the control of the United States Government;” (3) “the information falls within one or

3 more of the categories of information listed in section 1.4 of th[e] order;” and (4) “the original

4 classification authority determines that the unauthorized disclosure of the information reasonably

5 could be expected to result in damage to the national security, which includes defense against

6 transnational terrorism, and the original classification authority is able to identify or describe the

7 damage.” Id. § 1.1(a).

8

29. While there is no ex ante requirement to provide a justification for a classification,

9 “the original classification authority must be able to support the decision in writing, including

10 identifying or describing the damage, should the classification decision become the subject of a

11 challenge.” 32 C.F.R. § 2001.10.

12

30. There is no distinct standard for derivative classification because all material that

13 is “derivatively” classified has already received an original classification.

14

31. Executive Order No. 13526 delineates three levels of classification:

15 “Confidential,” “Secret,” and “Top Secret.” Exec. Order No. 13526 § 1.2.

16

32. “Confidential” material is information, “the unauthorized disclosure of which

17 reasonably could be expected to cause damage to the national security.” Id.

18

33. “‘Secret’ shall be applied to information, the unauthorized disclosure of which

19 reasonably could be expected to cause serious damage to the national security.” Id. (emphasis

20 added).

21

34. “‘Top Secret’ shall be applied to information, the unauthorized disclosure of

22 which reasonably could be expected to cause exceptionally grave damage to the national

23 security.” Id. (emphasis added).

24

35. At each classification level, the original classification authority must be able to

25 “identify or describe” the threatened damage. Id.

26

36. When information is originally classified “the original classification authority

27 shall establish a specific date or event for declassification . . . . Upon reaching the date or event,

28 the information shall be automatically declassified.” Id. § 1.5 (emphasis added).
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1

37. “If the original classification authority cannot determine an earlier specific date

2 event for declassification,” then classified information shall by default be marked for

3 declassification after 10 years, “unless the original classification authority otherwise determines

4 that the sensitivity of the information requires that it be marked for declassification for up to 25

5 years from the date of the original decision.” Id.

6

38. Only information that would “clearly and demonstrably be expected to reveal the

7 identity of a confidential human source or a human intelligence source or key design concepts of

8 weapons of mass destruction” is excluded from this eventual declassification requirement. Id.

9 Derivative documents containing classified information are also bound to this requirement. Id. §

10 2.2(f).

11

39. Executive Order No. 13526 places several limitations on the duration and extent

12 of classification. Most notably, it clarifies that: “No information may remain classified

13 indefinitely.” Id. It also prohibits classification that is intended to serve an unacceptable purpose.

14 For example, information may not be classified in order to “prevent embarrassment to a person,

15 organization, or agency,” to “restrain competition,” or to “prevent or delay the release of

16 information that does not require protection in the interest of the national security.” Id. § 1.7.

17 Additionally, the Executive Order affirmatively states that “[i]nformation shall be declassified as

18 soon as it no longer meets the standards for classification.” Id. § 3.1 (emphasis added).

19

40. Executive Order No. 13526 superseded and revoked other Executive Orders

20 governing classification standards including Executive Order No. 12958 of April 1995 and

21 Executive Order No. 13292 of March 25, 2003. Id. § 6.2.

22 C. 23

The Espionage Act 41. The Espionage Act criminalizes a number of actions involving the disclosure or

24 improper handling of information “relating to the national defense.” 18 U.S.C. § 793. Subsection

25 (d) of the Espionage Act criminalizes the willful communication or delivery of any information

26 relating to the national defense that “could be used to the injury of the United States or to the

27 advantage of any foreign nation,” by someone who has lawful possession of same, to any person

28
8
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1 not entitled to receive it. Id. § 793(d). Penalties for violations of the Espionage Act include fines

2 and imprisonment. Id.

3

42. Twitter is informed and believes and is concerned that if it were to publicly

4 disclose the actual aggregate number of FISA orders or directives it may have received—which

5 would constitute more detailed reporting than permitted under the options provided in the

6 USAFA—or if Twitter were to publicly disclose its unredacted draft Transparency Report,

7 Defendant DOJ may seek to prosecute Twitter and impose the applicable penalties under the

8 Espionage Act.

9 D.
10

The Government’s Restrictions on Other Communications Providers’ Ability to Discuss Their Receipt of National Security Legal Process

11

43. On June 5, 2013, the British newspaper The Guardian reported the first of several

12 leaks of classified material from Edward Snowden, a former U.S. government contractor, which

13 have revealed—and continue to reveal—multiple U.S. government intelligence collection and

14 surveillance programs.

15

44. The Snowden disclosures deepened public concern regarding the scope of

16 governmental national security surveillance. This concern has been shared by members of

17 Congress, industry leaders, world leaders, and the media. In response to this concern, the

18 government has selectively declassified surveillance-related information for public

19 dissemination, a number of executive branch officials have made public statements

20 characterizing and revealing select details of specific U.S. surveillance programs—including the

21 nature and extent of involvement of U.S. communications providers—and the government has

22 engaged in a programmatic review of classification determinations with a stated goal of

23 declassifying more information.

24

45. While engaging in their own carefully crafted speech, U.S. government officials

25 have relied on statutory and other purported legal authority to preclude communications

26 providers from responding to leaks and inaccurate information reported in the media and by

27 public officials, and from addressing related public concerns regarding the providers’

28 involvement with and exposure to U.S. surveillance efforts. These authorities—and the
9
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1 government’s interpretation of and reliance on them—constitute facial and as-applied violations

2 of the First Amendment right to engage in speech regarding a matter of extensively debated and

3 significant public interest.

4

46. In response to these restrictions on speech, on June 18, 2013, Google filed in the

5 FISC a Motion for Declaratory Judgment of Google’s First Amendment Right to Publish

6 Aggregate Data About FISA Orders. Google then filed an Amended Motion on September 9,

7 2013. Google’s Amended Motion sought a declaratory judgment that it had a right under the

8 First Amendment to publish, and that no applicable law or regulation prohibited it from

9 publishing, (1) the total number of requests it receives under various national security authorities,

10 if any, and (2) the total number of users or accounts encompassed within such requests. Similar

11 motions were subsequently filed by four other U.S. communications providers: Microsoft (June

12 19, 2013), Facebook (September 9, 2013), Yahoo! (September 9, 2013), and LinkedIn

13 (September 17, 2013). Apple also submitted an amicus brief in support of the motions

14 (November 5, 2013).

15

47. In January 2014, the DOJ and the five petitioner companies reached an agreement

16 that the companies would dismiss the FISC actions without prejudice in return for the DOJ’s

17 agreement that the companies could publish information about U.S. government surveillance of

18 their networks in one of two preapproved disclosure formats. (Two more general reporting

19 options had been approved in the summer of 2013.) President Obama previewed this agreement

20 in a public speech that he delivered on January 17, 2014, saying, “We will also enable

21 communications providers to make public more information than ever before about the orders

22 that they have received to provide data to the government.” President Barack Obama, Remarks

23 by the President on Review of Signals Intelligence, White House Office of Press Secretary (Jan.

24 17, 2014, 11:15 AM), http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-

25 president-review-signals-intelligence.

26

48. The two pre-approved disclosure formats were set forth in a letter dated January

27 27, 2014, from Deputy Attorney General James M. Cole to the General Counsels for Facebook,

28 Google, LinkedIn, Microsoft and Yahoo! (the “DAG Letter”). (Dkt. No. 1, Ex. 1.) (The DAG
10
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1 Letter also included the two other preapproved disclosure formats from the summer of 2013.)

2 These four preapproved disclosure formats generally permit disclosures of the volume of legal

3 process received in wide reporting bands, with slightly more granularity allowed if aggregate

4 FISA orders are reported in combination with aggregate National Security Letters (“NSLs”)

5 received.

6

49. In a Notice filed with the FISC simultaneously with transmission of the DAG

7 Letter, the DOJ informed the court of the agreement, the new disclosure options detailed in the

8 DAG Letter, and the stipulated dismissal of the FISC action by all parties. (Dkt. No. 1, Ex. 2.)

9 The Notice concluded by stating: “It is the Government’s position that the terms outlined in the

10 Deputy Attorney General’s letter define the limits of permissible reporting for the parties and

11 other similarly situated companies.” (Dkt. No. 1, Ex. 2 at 2.) In other words, according to the

12 DOJ, the negotiated agreement reached to end litigation by five petitioner companies was not

13 limited to the five petitioner companies as a settlement of private litigation, but instead served as

14 a disclosure format imposed on a much broader—yet undefined—group of companies. No

15 further guidance was offered by the DOJ regarding what it considered to be a “similarly situated”

16 company. Further, the Notice cited no authority for extending these restrictions on speech to

17 companies that were not party to the negotiated agreement.

18 E. 19

The DOJ and FBI Deny Twitter’s Request to Be More Transparent 50. Twitter is a unique service built on trust and transparency. Twitter is used by

20 world leaders, political activists, journalists, and millions of other people to disseminate

21 information and ideas, engage in public debate about matters of national and global concern,

22 seek justice, and reveal government corruption and other wrongdoing. Twitter users are

23 permitted to post under their real names or pseudonymously, and the ability of Twitter users to

24 share information depends, in part, on their ability to do so without undue fear of government

25 surveillance. Therefore, the ability to engage in speech concerning the nature and extent of

26 government surveillance of Twitter users’ activities is critical to Twitter.

27

51. In July 2012, Twitter released its first Transparency Report. Release of this

28 Transparency Report was motivated by Twitter’s recognition that citizens must “hold
11
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1 governments accountable, especially on behalf of those who may not have a chance to do so

2 themselves.” Jeremy Kessel, Twitter Transparency Report, Twitter Blog (July 2, 2012, 20:17

3 UTC), https://blog.twitter.com/2012/twitter-transparency-report. The Transparency Report

4 addressed the volume of civil and criminal government requests for account information and

5 content removal, broken down by country, and takedown notices pursuant to the Digital

6 Millennium Copyright Act received from third parties and the number of instances when Twitter

7 responded to these requests. The report did not contain information regarding government

8 national security requests Twitter may have received. Subsequent biannual transparency reports

9 have been released since then, including the most recent on February 19, 2016.

10

52. At Twitter’s request, on January 29, 2014, representatives of the DOJ, FBI, and

11 Twitter met at the Department of Justice to discuss Twitter’s desire to provide greater

12 transparency regarding the extent of U.S. government surveillance of Twitter’s users through

13 NSLs and FISA court orders. Twitter explained why the DAG Letter should not apply to Twitter,

14 which was not a party to the proceedings that resulted in the DAG Letter. In response, the DOJ

15 and FBI told Twitter that the DAG Letter set forth the limits of permissible transparency-related

16 speech for Twitter and that the letter would not be amended or supplemented with additional

17 options of preapproved speech.

18

53. In February 2014, Twitter released its Transparency Report for the second half of

19 2013, which included two years of data covering global government requests for account

20 information. In light of the government’s admonition regarding more expansive transparency

21 reporting than that set forth in the DAG Letter, Twitter’s February 2014 Transparency Report did

22 not include quantitative information at the level of granularity Twitter felt provided an accurate

23 and representative view of its receipt of and response to U.S. national security requests and had

24 sought approval from Defendants to disclose.

25

54. In a blog post, Twitter explained the importance of reporting more specific

26 quantitative information to users about government surveillance. Twitter also explained how the

27 U.S. government was unconstitutionally prohibiting Twitter from providing a meaningful level

28
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1 of quantitative detail regarding U.S. government national security requests Twitter had or may

2 have received:

3

We think the government’s restriction on our speech not only

unfairly impacts our users’ privacy, but also violates our First

4

Amendment right to free expression and open discussion of

government affairs. We believe there are far less restrictive ways

5

to permit discussion in this area while also respecting national

security concerns. Therefore, we have pressed the U.S. Department

6

of Justice to allow greater transparency, and proposed future

disclosures concerning national security requests that would be

7

more meaningful to Twitter’s users.

8 Jeremy Kessel, Fighting for more #transparency, Twitter Blog (Feb. 6, 2014, 14:58 UTC),

9 https://blog.twitter.com/2014/fighting-for-more-transparency.

10

55. On or about April 1, 2014, Twitter submitted a draft July 2014 Transparency

11 Report to the FBI, explaining:

12

We are sending this to you so that Twitter may receive a

determination as to exactly which, if any, parts of its Transparency

13

Report are classified or, in the Department’s view, otherwise may

not lawfully be published online. 14

15 A copy of Twitter’s letter dated April 1, 2014, was filed with this Court as Dkt. No. 1, Ex. 3.

16 Twitter’s draft Transparency Report, which has already been filed and submitted to this Court, is

17 Dkt. No. 1, Ex. 4.

18

56. Through its draft Transparency Report, Twitter seeks to disclose certain

19 categories of quantitative information to its users for the period July 1 to December 31, 2013,

20 including:

21

a. The number of NSLs and FISA orders Twitter received, if any, in actual

aggregate numbers (including “zero,” to the extent that that number was

22

applicable to an aggregate number of NSLs or FISA orders or to specific

kinds of FISA orders that Twitter may have received); 23

24

b. The number of NSLs and FISA orders received, if any, reported separately, in ranges of one hundred, beginning with 1–99;

25 c. The combined number of NSLs and FISA orders received, if any, in

26

ranges of twenty-five, beginning with 1–24;

27

d. A comparison of Twitter’s proposed (i.e., smaller) ranges with those

authorized by the DAG Letter; 28

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e. A comparison of the aggregate numbers of NSLs and FISA orders

1

received, if any, by Twitter and the five providers to whom the DAG

2

Letter was addressed; and

3

f. A descriptive statement about Twitter’s exposure to national security

surveillance, if any, to express the overall degree of government

4

surveillance it is or may be subject to.

5

57. For five months, Defendant FBI considered Twitter’s written request for review

6 of the draft Transparency Report. In a letter dated September 9, 2014, the FBI denied Twitter’s

7 request. A copy of the FBI’s letter was filed with this Court as Dkt. No. 1, Ex. 5. Defendant

8 FBI’s letter did not, as requested, identify exactly which specific information in the draft

9 Transparency Report was classified and therefore could not lawfully be published. Instead, the

10 letter stated that “information contained in the report” cannot be publicly released; it provided

11 examples of such information in the draft Transparency Report; and it relied on a general

12 assertion of national security classification and on the pronouncements in the DAG Letter as its

13 bases for denying publication:

14

We have carefully reviewed Twitter’s proposed transparency

report and have concluded that information contained in the report

15

is classified and cannot be publicly released.

16

. . .Twitter’s proposed transparency report seeks to publish data. .

.in ways that would reveal classified details about [government]

17

surveillance and that go beyond what the government has

permitted other companies to report . . . . This is inconsistent with

18

the January 27th framework [set forth in the DAG Letter] and

discloses properly classified information.

19

20 (Dkt. No. 1, Ex. 5, at 1.) Defendant FBI reiterated that Twitter could engage only in speech that

21 did not exceed the preapproved speech set forth in the DAG Letter. It noted, for example, that

22 Twitter could

23

explain that only an infinitesimally small percentage of its total

24

number of active users was affected by [government surveillance by] highlighting that less than 250 accounts were subject to all

25

combined national security legal process . . . . That would allow

Twitter to explain that all national security legal process received

26

from the United States affected, at maximum, only 0.0000919

percent (calculated by dividing 249 by 271 million) of Twitter’s

27

total users. In other words, Twitter is permitted to qualify its

28

description of the total number of accounts affected by all national

14
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security legal process it has received but it cannot quantify that

1

description with the specific detail that goes well beyond what is

2

allowed under the January 27th framework and that discloses

properly classified information.

3 (Id. at 1–2.) (emphasis in original)

4

58. Because Defendant FBI’s response did not identify the exact information in the

5 draft Transparency Report that could not be published, and because the publication of any

6 specific fact the government considers classified could result in prosecution, fines, and

7 imprisonment, Twitter did not at that time publish any part of the report.

8

59. Defendant FBI did not, as the First Amendment requires, narrowly prohibit only

9 speech that would harm national security; instead, it prohibited all of the speech in Twitter’s

10 draft Transparency Report and thereby prohibited speech that would not properly be subject to

11 classification, in violation of the First Amendment.

12 F.
13

Twitter Brings Suit Against Defendants 60. On October 7, 2014, Twitter filed a Complaint against Defendants seeking

14 declaratory and injunctive relief. (Dkt. No. 1.)

15

61. On November 17, 2014, Defendant DOJ publicly filed what it described as an “an

16 unclassified copy of [Twitter’s] proposed report, with classified national security information

17 redacted.” (Dkt. No. 21.) This redacted version excised quantitative data regarding Twitter’s

18 receipt of national security legal process that constitutes information regarding matters of very

19 significant public interest and is not properly classified under the government’s own

20 classification standards.

21

62. On January 9, 2015, Defendants filed a partial motion to dismiss. (Dkt. No. 28.)

22 In a footnote, Defendants noted their position that “[o]f course, disclosing the number of Title I

23 orders received would violate” a nondisclosure provision within a FISC order “as it would

24 ‘disclose . . . the existence’ of each of the orders.” (Dkt. No. 28, at 5 n.2.) Defendants also

25 repeatedly claimed that the basis for their prohibition on Twitter’s speech was not the DAG

26 Letter, but rather the underlying national security statutes, including FISA, and FISA orders

27 issued thereunder.

28

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1

63. On March 4, 2015, Defendants filed a reply in support of the partial motion to

2 dismiss. (Dkt. No. 57.) In that filing, Defendants asserted that “the Government has never taken

3 [the] position” that a communications provider that has never received an NSL or FISA order is

4 prohibited from saying so. (Dkt. No. 57, at 8.)

5

64. A hearing on Defendants’ partial motion to dismiss was held on May 5, 2015.

6 G. 7

Passage of the USA FREEDOM Act, Supplemental Briefing, and the District Court’s Ruling

8

65. On June 2, 2015, President Obama signed into law the USA FREEDOM Act. The

9 statute contains no express findings, and nothing in the legislative history indicates that Congress

10 made any factual finding regarding how much information regarding U.S. national security

11 requests could be disclosed without harm to national security. The USAFA provides four new

12 options for providers such as Twitter to report the volume of national security process received.

13 Like the DAG Letter, the USA FREEDOM Act provides for wide reporting bands with more

14 granularity permitted where the number of FISA orders received are combined with the number

15 of NSLs received. On its face, the USAFA is permissive: that is, it allows communications

16 providers to use one of the reporting options it provides, but it contains no express prohibition on

17 other disclosures, and it does not amend or otherwise affect any of the nondisclosure

18 requirements in FISA.

19

66. On June 11, 2015, this Court directed the parties to “file supplemental briefing on

20 the effect of this legislation, both as to the pending partial motion to dismiss and as to the

21 ultimate claims for relief in Plaintiff’s Complaint.” (Dkt. No. 69.) The Court subsequently

22 requested additional briefing on discrete questions. (Dkt. No. 81.) Defendants took the position

23 in that supplemental briefing that the USA FREEDOM Act superseded the DAG Letter, but was

24 permissive only and did not itself prohibit any speech. Defendants continued to claim that any

25 prohibition on Twitter’s speech came from the underlying national security statutes, including

26 FISA, and FISA orders issued thereunder.

27

28
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1

67. Following supplemental briefing and a hearing, on October 14, 2015, this Court

2 denied Defendants’ Motion to Dismiss as moot and, on the Court’s own motion, ordered filing of

3 an amended complaint in light of the passage of the USAFA. (Dkt. No. 85.)

4

68. Twitter filed a first amended complaint on November 13, 2015 (Dkt. No. 88.) and

5 the Defendants moved to dismiss the first amended complaint on January 15, 2016. (Dkt. No.

6 94.) This Court held a hearing on Defendants’ motion to dismiss on March 14, 2016. (Dkt. No.

7 109.)

8

69. On May 2, 2016, this Court issued an order granting in part and denying in part

9 Defendants’ motion to dismiss. (Dkt. No. 113.)

10

70. This Court concluded by giving Twitter “leave to amend to allege a challenge to

11 the classification decisions at issue, as well as any other cognizable challenge consistent with

12 that classification challenge.” Id. at 9.

13

COUNT I

14

Information contained in Twitter’s draft Transparency Report

was improperly classified and the government’s prior restraint on Twitter’s

15

speech violates the First Amendment.

16

(Implied Cause of Action under the First Amendment)

17

71. Twitter incorporates the allegations contained in paragraphs 1 through 70, above.

18

72. Information that is not properly classified is protected by the First Amendment.

19 Government authorities have no legitimate interest in censoring improperly classified

20 information.

21

73. Information must be properly classified in order to be exempt from First

22 Amendment protection.

23

74. To properly classify information, Defendants must satisfy the requirements

24 delineated in Executive Order No. 13526.

25

75. The decision to classify the information must be made by an “original

26 classification authority.” Exec. Order No. 13526 § 1.1. The information must be “owned by,

27 produced by or for, or . . . under the control of the United States Government.” Id. The

28 information must fall within one of the appropriate, listed categories. Id. And, “the original
17
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1 classification authority [must] determine[] that the unauthorized disclosure of the information

2 reasonably could be expected to result in damage to the national security . . . and the original

3 classification authority is able to identify or describe the damage.” Id. For classification at the

4 “Secret” and “Top Secret” levels, the classifying entity must expect “serious” and “exceptionally

5 grave” damage, respectively. Id. § 1.2.

6

76. The information that Defendants redacted from Twitter’s draft Transparency

7 Report was not properly classified under Executive Order No. 13526. That information therefore

8 is not properly classified and, as a consequence, is therefore protected by the First Amendment.

9

77. The federal government often classifies information that could not be expected to

10 cause damage to U.S. national security. For example, Secretary of State John Kerry has stated

11 that “there’s a massive amount of overclassification.” He said: “People just stamp it on quickly

12 because it’s a way to sort of be correct if anybody had a judgment that somehow they had been

13 wrong about whether it should be classified or not. So the easy thing is to classify it and put it

14 away.” Mark Hensch, Kerry: State has ‘massive amount of overclassification,’ The Hill (Sept. 5,

15 2015), available at http://thehill.com/blogs/ballot-box/presidential-races/252769-kerry-state-has-

16 massive-amount-of-overclassification. In 2014, the Defense Intelligence Agency admitted that its

17 personnel “often misclassify, and typically that means over-classify, information.” Matt Sledge,

18 Intelligence Agencies Won’t Release Reports of Excessive Secrecy, Huffington Post (Jan. 31,

19 2014), available at http://www.huffingtonpost.com/2014/01/28/cia-over-classification-

20 report_n_4680479.html.

21

78. In October 2010, President Obama signed into law H.R. 533, The Reducing Over-

22 Classification Act. This bipartisan legislation is specifically intended to “decrease over-

23 classification and promote information sharing.” Ben Rhodes, The President Signs H.R. 533, The

24 Reducing Over-Classification Act (Oct. 7, 2010), available at

25 https://www.whitehouse.gov/blog/2010/10/07/president-signs-hr-553-reducing-over-

26 classification-act. In this legislation, the U.S. Congress found that “over-classification of

27 information interferes with accurate, actionable, and timely information sharing, increases the

28
18
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1 cost of information security, and needlessly limits stakeholder and public access to information.”

2 Reducing Over-Classification Act, Pub. L. 111-258, § 2 (2010).

3

79. Defendants have neither alleged nor demonstrated, nor, on information and belief,

4 can Defendants demonstrate, that the quantitative information Defendants seek to censor poses a

5 threat to U.S. national security, let alone one that is “serious” or “exceptionally grave.” The

6 quantitative information Twitter seeks to release does not, on information and belief, reveal

7 intelligence sources and methods or include specific details about any FISA orders or NSLs

8 Twitter may have received.

9

80. Twitter is an independent corporation and ECS that responds to numerous forms

10 of legal process. Through its transparency reporting, Twitter seeks to publish quantitative data

11 about activity (if any) that it has conducted, using its own personnel and resources. Information

12 about the amount of national security process with which Twitter has been obligated to comply is

13 not “owned by, produced by or for, or . . . under the control of the United States Government.”

14 Exec. Order No. 13526 § 1.1.

15

81. Because Defendants cannot meet the standards necessary for a proper original

16 classification decision, Defendants are foreclosed from asserting that Twitter’s draft

17 Transparency Report constitutes a “derivative” document. Derivative classification means the

18 “incorporating, paraphrasing, restating, or generating in new form information that is already

19 classified, and marking the newly developed material consistent with the classification markings

20 that apply to the source information.” Id. § 6.1(o) (emphasis added). Because the aggregate

21 quantitative information that Twitter seeks to publish was not “already classified,” the draft

22 Transparency Report cannot be a derivatively classified document.

23

82. If the information that Twitter seeks to publish is not properly classified under

24 Executive Order No. 13526, then the government has no other basis for prohibiting its

25 disclosure. Various laws limit Twitter’s disclosure of information related to the legal process it

26 accepts, but those laws cannot and do not automatically classify that information. Defendants

27 rely on the nondisclosure provisions in FISA as a basis for restricting Twitter’s ability to publish

28
19
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Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 21 of 26

1 its draft Transparency Report, but those provisions do not restrict disclosure of the information

2 redacted from that Report.

3

83. In restraining Twitter’s speech, Defendants have misinterpreted FISA, which does

4 not prohibit Twitter from disclosing the information it seeks to publish about the number of

5 FISA orders it has received, if any. Instead, FISA protects the secrecy of the contents of specific

6 FISA orders, their targets, and details of ongoing investigations. Twitter has no statutory

7 obligation to remain silent about whether or not it has ever received FISA orders as a general

8 matter, nor do FISA or the terms of FISA orders prohibit Twitter from disclosing the aggregate

9 number of each type of FISA order it may have received, or whether it has received no orders at

10 all or no orders of a particular type.

11

84. To the extent that FISA’s secrecy provisions are construed to categorically

12 prohibit Twitter from publishing the quantitative information it seeks to publish, the FISA

13 secrecy provisions are unconstitutional, including because they constitute a prior restraint and

14 content-based restriction on speech in violation of Twitter’s First Amendment right to speak

15 about truthful matters of public concern. The restriction also constitutes viewpoint

16 discrimination, as Defendants have allowed speech on this issue that conforms to their own

17 viewpoint, but barred other interested parties from expressing different views on the same topic.

18 Moreover, the restriction on Twitter’s speech is not narrowly tailored to serve a compelling

19 governmental interest.

20

85. When the federal government improperly classifies information and then prevents

21 its publication, it violates the First Amendment. Therefore, Twitter seeks a declaration that (a)

22 the standards set forth in Executive Order No. 13526 constitute the only grounds on which the

23 government may rely to prohibit disclosure of the redacted information in the draft Transparency

24 Report; (b) the FISA nondisclosure provisions have no applicability to the redacted information

25 in the draft Transparency Report; and (c) the redacted information in the draft Transparency

26 Report was improperly classified, and that Twitter has a First Amendment right to release the

27 report publicly in unredacted form or, in the alternative, to release the report with all of the

28 information not properly classified under Executive Order No. 13526.
20
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Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 22 of 26

1

86. Twitter also seeks injunctive relief (a) barring Defendants from prohibiting

2 Twitter from publishing information redacted by Defendants from the draft Transparency Report

3 that is not properly classified; and (b) barring Defendants from prohibiting Twitter from

4 publishing similar information in future Transparency Reports covering subsequent periods of

5 time.

6

COUNT II

7

Information contained in Twitter’s draft Transparency Report

was improperly classified and the government’s prior restraint on

8

Twitter’s speech violates the First Amendment.

9

(Action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.)

10

87. Twitter incorporates the allegations contained in paragraphs 1 through 86, above.

11

88. Defendants’ decision to censor Twitter’s transparency report constitutes “final

12 agency action” and Twitter has suffered a legal wrong and is adversely affected and aggrieved by

13 that decision.

14

89. Defendants’ decision violates the First Amendment.

15

90. Twitter seeks a declaration that (a) the standards set forth in Executive Order No.

16 13526 constitute the only grounds on which the government may rely to prohibit disclosure of

17 the redacted information in the draft Transparency Report; (b) the FISA nondisclosure provisions

18 have no applicability to the redacted information in the draft Transparency Report; and (c) the

19 redacted information in its draft Transparency Report was improperly classified, and that Twitter

20 has a First Amendment right to release the report publicly in unredacted form or, in the

21 alternative, to release the report with all of the information not properly classified under

22 Executive Order No. 13526.

23

91. Twitter also seeks injunctive relief (a) barring Defendants from prohibiting

24 Twitter from publishing information redacted by Defendants from the draft Transparency Report

25 that is not properly classified; and (b) barring Defendants from prohibiting Twitter from

26 publishing similar information in future Transparency Reports covering subsequent periods of

27 time.

28
21
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Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 23 of 26

1

COUNT III

2

The Espionage Act is unconstitutional as applied to Twitter.

3

92. Twitter incorporates the allegations contained in paragraphs 1 through 91, above.

4

93. Defendants’ public statements have given rise to a reasonable concern that

5 Twitter would face prosecution under the Espionage Act, including under 18 U.S.C. § 793(d), if

6 it were to disclose the aggregate number of FISA orders it has received, if any, or any other

7 information in its draft Transparency Report that has been redacted by Defendants and/or is not

8 consistent with the permissible transparency reporting options in the USAFA.

9

94. Given the confusion that Defendants have created regarding what disclosures are

10 permissible as a result of Defendants’ contradictory positions on reporting zero requests, the

11 basis or bases for prohibiting speech (whether it derives from classification authority or from the

12 nondisclosure provisions of FISA), and their pattern of selective declassification of specific

13 FISA-related and other national security matters to allow government speech, it is unlawful to

14 apply or threaten to apply criminal penalties to communications providers that seek only to share

15 with their users the number of requests they may receive and/or other information regarding the

16 amount of requests received after a fixed period of nondisclosure. Furthermore, the Espionage

17 Act itself does not prohibit Twitter from disclosing the aggregate number of FISA orders it may

18 have received, if any, or any other information in its draft Transparency Report that has been

19 redacted by Defendants, as such prohibition would be an unconstitutional violation of Twitter’s

20 First Amendment rights.

21

95. Any such prosecution of Twitter would be unconstitutional as violating Twitter’s

22 First Amendment right to speak truthfully about matters of public interest.

23

96. Twitter seeks a declaration that any such prosecution would violate the

24 Constitution and an injunction barring Defendants from prosecuting Twitter for engaging in

25 constitutionally-protected speech.

26

27

28
22
SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 24 of 26

1

PRAYER FOR RELIEF

2

WHEREFORE, Twitter prays for the following relief:

3

A. A declaratory judgment that:

4

i. The standards set forth in Executive Order No. 13526 constitute the only

grounds on which the government may rely to prohibit disclosure of the

5

redacted information in the draft Transparency Report;

6

ii. The redacted information in the draft Transparency Report is not subject

to classification under the standards in Executive Order No. 13526, and

7

that Twitter has a First Amendment right to release the entire report

publicly in unredacted form or, in the alternative, to release the report with

8

all of the information not properly classified under Executive Order No.

13526;

9 iii. The FISA nondisclosure provisions have no applicability to the redacted

10

information in the draft Transparency Report;

11

iv. Any interpretation of FISA that prohibits publication of the unredacted

Transparency Report is unconstitutional;

12 v. The FISA secrecy provisions are facially unconstitutional under the First

13

Amendment because they do not require nondisclosure orders to contain a

defined duration;

14 vi. The FISA secrecy provisions are unconstitutional under the First

15

Amendment as applied to Twitter;

16

vii. FISA does not restrict reporting aggregate numbers of FISA orders

received;

17 viii. Any interpretation of FISA that prohibits reporting aggregate numbers of

18

FISA orders received is unconstitutional;

19

ix. Prosecution of Twitter under the Espionage Act for disclosing the

aggregate number of FISA orders it has received, if any, or any other

20

information in its draft Transparency Report that has been redacted by

Defendants, would be a violation of Twitter’s First Amendment rights;

21

and

22

x. Defendants may not prohibit Twitter from publishing, in Transparency

Reports covering periods of time subsequent to the draft Transparency

23

Report, the categories of information that this Court finds not subject to

classification, and therefore protected by the First Amendment, in

24

connection with the draft Transparency Report.

25

B. A preliminary and permanent injunction prohibiting Defendants, their affiliates,

26 agents, employees, and attorneys, and any and all other persons in active concert or participation

27 with them, from seeking to enforce the unconstitutional prohibitions on Twitter’s speech, or to

28 prosecute or otherwise seek redress from Twitter for exercising its First Amendment rights.
23
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Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 25 of 26

1

C. A preliminary and permanent injunction (a) barring Defendants, their affiliates,

2 agents, employees, and attorneys, and any and all other persons in active concert or participation

3 with them, from prohibiting Twitter from publishing information redacted by Defendants from

4 the draft Transparency Report that is not properly classified; and (b) barring defendants from

5 prohibiting Twitter from publishing similar information in future Transparency Reports covering

6 subsequent periods of time.

7

D. An award of attorneys’ fees and costs to Twitter to the extent permitted by law.

8

E. Such further and other relief as this Court deems just and proper.

9

10 Dated: May 24, 2016 11

MAYER BROWN LLP ANDREW JOHN PINCUS

12

/s/ Andrew John Pincus

13

ANDREW JOHN PINCUS (Pro Hac Vice)

apincus@mayerbrown.com

14

1999 K Street, NW

Washington, DC 20006

15

Telephone: (202) 263-3220

Facsimile: (202) 263-3300

16

MAYER BROWN LLP

17

LEE H. RUBIN (SBN 141331)

lrubin@mayerbrown.com

18

Two Palo Alto Square, Suite 300

3000 El Camino Real

19

Palo Alto, CA 94306-2112

Telephone: (650) 331-2000

20

Facsimile: (650) 331-2060

21

PERKINS COIE LLP

MICHAEL A. SUSSMANN (Pro Hac Vice)

22

MSussmann@perkinscoie.com

700 Thirteenth Street, NW, Suite 600

23

Washington, DC 20005-3960

Telephone: (202) 654-6333

24

Facsimile: (202) 654-9127

25

Attorneys for Plaintiff

TWITTER, INC.

26

27

28
24
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Case 4:14-cv-04480-YGR Document 114 Filed 05/24/16 Page 26 of 26

1

CERTIFICATE OF SERVICE

2

The undersigned certifies that, on May 24, 2016, I caused the foregoing document to be

3 filed electronically through the Court’s CM/ECF System and served on all counsel of record. 4

5 /s/ Andrew John Pincus

6

ANDREW JOHN PINCUS

7

Attorneys for Plaintiff

TWITTER, INC.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
25
SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Case No. 14-cv-4480-YGR

 
 Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 1 of 32

1

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

2 BRIAN STRETCH United States Attorney
3 ANTHONY J. COPPOLINO

4

Deputy Branch Director ERIC J. SOSKIN

5 JULIA A. BERMAN

Trial Attorneys 6 United States Department of Justice

7 Civil Division, Federal Programs Branch

8 P.O. Box 883
Washington, D.C. 20044 9 Telephone: (202) 616-8480
10 Facsimile: (202) 616-8470 Email: julia.berman@usdoj.gov
11
Attorneys for Defendants the Attorney General, et al. 12
IN THE UNITED STATES DISTRICT COURT 13
FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 __________________________________________

15 TWITTER, INC.,
16

)

)

Case No. 14-cv-4480

)

Plaintiff,

)

17

)

18

v.

19 LORETTA E. LYNCH, United States

)

)

DEFENDANTS’ MOTION FOR

)

SUMMARY JUDGMENT

Attorney General, et al., 20

)

)

Date: January 17, 2016

21

Defendants.

22

)

Time: 2:00 pm

)

Courtroom 1, Fourth Floor

)

Hon. Yvonne Gonzalez Rogers

23

) __________________________________________)

24

25

26

27

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480 Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 2 of 32

1

TABLE OF CONTENTS

2 NOTICE OF MOTION................................................................................................................... 1
3 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 4
INTRODUCTION .......................................................................................................................... 1 5
BACKGROUND ............................................................................................................................ 3 6
7 I. Statutory and Regulatory Background................................................................................ 3

8

A. FISA .............................................................................................................................. 4

9

B. USA FREEDOM Act.................................................................................................... 5

10 II. Factual and Procedural Background ................................................................................... 6

11

A. Plaintiff’s Claims in the Second Amended Complaint ................................................. 7

12 LEGAL STANDARD................................................................................................................... 10
13 ARGUMENT ................................................................................................................................ 10
14

15

I. The Court Should Grant Judgment for Defendants Based on the Detailed Showing that Information in the Draft Transparency Report is Properly Classified. ............................. 10

16 A. The Government’s Classification Decision Warrants the Utmost Deference. ........... 11

17

B. The Information Redacted from the Draft Transparency Report is Properly Classified

18

Pursuant to Executive Order 13526. ........................................................................... 15

19

1. An Original Classification Authority Has Determined that the Information Is

20

Classified..................................................................................................................... 16

21

2. The Information “Is Owned By, Produced By or For, or Is Under the Control of” the

Government................................................................................................................. 16 22

23

3. The Information Falls Within the Classification Categories of Section 1.4 of

Executive Order 13526. .............................................................................................. 17

24

4. Disclosure of the Information Reasonably Could Be Expected to Cause Identifiable

25

Harm to National Security. ......................................................................................... 18

26 II. The Legislative and Judicial Branches Also Lawfully May Take Steps to Safeguard

27

National Security Information. ......................................................................................... 21

28 CONCLUSION............................................................................................................................. 25

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

i

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 3 of 32

1

TABLE OF AUTHORITIES

2 Cases
3 Al-Haramain Islamic Found., Inc. v. Bush,
4 507 F.3d 1190 (9th Cir. 2007) ................................................................................... 2, 11, 12, 13

5 Anderson v. Liberty Lobby, Inc.,
6 477 U.S. 242 (1986)................................................................................................................... 10

7 Berntsen v. CIA, 8 618 F. Supp. 2d 27 (D.D.C. 2008) ....................................................................................... 11, 19

9 Boening v. CIA, 579 F. Supp. 2d 166 (D.D.C. 2008) ........................................................................................... 19
10

11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................................... 10
12

13

CIA v. Sims, 471 U.S. 159 (1985)................................................................................................................... 13

14 Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,
15 331 F.3d 918 (D.C. Cir. 2003) ....................................................................................... 11, 13, 18

16 Dames & Moore v. Regan, 17 453 U.S. 654 (1981)................................................................................................................... 14

18 Dep’t of Navy v. Egan, 19 484 U.S. 518 (1988)....................................................................................................... 11, 12, 15

20 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008)................................................................................................... 5, 25
21
22 Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) ................................................................................................... 12
23 Gardels v. CIA,
24 689 F.2d 1100 (D.C. Cir. 1982) ........................................................................................... 13, 14
25 Haig v. Agee,
26 453 U.S. 280 (1981)................................................................................................................... 25

27 Halkin v. Helms, 28 598 F.2d 1 (D.C. Cir. 1978) .................................................................................................. 12-13

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

ii

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 4 of 32

1

Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) ................................................................................................... 13

2 Halperin v. Nat’l Sec. Council,
3 452 F. Supp. 47 (D.D.C. 1978) ............................................................................................ 13, 15

4 Holder v. Humanitarian Law Project, 5 561 U.S. 1 (2010)....................................................................................................................... 13

6 In re Grand Jury Proceedings, 7 17 F. Supp. 3d 1033 (S.D. Cal. 2013)........................................................................................ 24

8 In re Grand Jury Proceedings, 417 F.3d 18 (1st Cir. 2005) ........................................................................................................ 24
9
10 In re Mot. for Release of Ct. Records, 526 F. Supp. 2d 484 (F.I.S.C. 2007) .......................................................................................... 20
11 In re Ozenne,
12 --- F.3d ---, 2016 WL 6608963 (9th Cir. Nov. 9, 2016) ............................................................ 22
13 In re: Nat’l Sec. Letter,
14 930 F. Supp. 2d 1964 (N.D. Cal. 2013) ....................................................................................... 2

15 In re: Nat’l Security Letters, 16 2016 WL 4501210 (N.D. Cal. Mar. 29, 2016)............................................................................. 2

17 Jean v. Nelson, 18 472 U.S. 846 (1985)................................................................................................................... 22

19 McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) ....................................................................................... 2, 13, 19
20

21

Shaffer v. DIA, 102 F. Supp. 3d 1 (D.D.C. 2015) ........................................................................................ passim

22
Snepp v. United States, 23 444 U.S. 507 (1980)......................................................................................................... 4, 11, 14

24 Stillman v. CIA, 25 319 F.3d 546 (D.C. Cir. 2003) ................................................................................... 2, 11, 19, 22

26 Stillman v. CIA, 27 517 F. Supp. 2d 32 (D.D.C. 2007) ............................................................................................. 10

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

iii

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 5 of 32

1

United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) ................................................................................................... 13

2 United States v. Nixon,
3 418 U.S. 683 (1974)................................................................................................................... 11

4 United States v. Thirty–Seven Photographs, 5 402 U.S. 363 (1971)................................................................................................................... 25

6 Wilson v. CIA, 7 586 F.3d 171 (2d Cir. 2009)................................................................................................ 11, 19

8 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)................................................................................................................... 14
9
10 Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ............................................................................................................... 14
11 Statutes
12 13 18 U.S.C. § 793......................................................................................................................... 9, 10
18 U.S.C. § 2709(c) ...................................................................................................................... 16 14
50 U.S.C. § 1801............................................................................................................................. 4 15
50 U.S.C. § 1805............................................................................................................. 4, 5, 22, 23 16 50 U.S.C. § 1824....................................................................................................................... 4, 23
17 50 U.S.C. § 1842....................................................................................................................... 5, 23
18 50 U.S.C. § 1861............................................................................................................................. 5
19 50 U.S.C. § 1874............................................................................................................................. 6

20 50 U.S.C. § 1881a ................................................................................................................. 4, 5, 23

21 Rules
22 Fed. R. Civ. P. 1 ........................................................................................................................ 1, 10
23 Fed. R. Civ. P. 56(a) ..................................................................................................................... 10
24
25 Other Authorities

26 Executive Order 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981)......................................................... 3 27 Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009)................................................... passim 28 H.R. Rep. No. 3361, 113 Cong (2014) ........................................................................................... 5

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

iv

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 6 of 32

1 H.R. Rep. No. 113-452 (2015).................................................................................................. 3, 14 S. Res. 2685, 113 Cong (2014) ....................................................................................................... 5
2 U.S. Const. art. II § 2 .................................................................................................................... 14
3 USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268 (2015) ......................................... passim
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

v

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 7 of 32

1

NOTICE OF MOTION

2

PLEASE TAKE NOTICE that, on January 17, 2016, at 2:00 p.m., before Judge Yvonne

3 Gonzalez Rogers, the Defendants will move this Court for summary judgment.

4

Pursuant to Federal Rule of Civil Procedure 56, Defendants seek dismissal of the

5 Plaintiff’s Second Amended Complaint for the reasons set forth in Defendants’ accompanying

6 Memorandum of Points and Authorities.

7

MEMORANDUM OF POINTS AND AUTHORITIES

8

INTRODUCTION

9

Plaintiff Twitter, Inc. alleges in its Second Amended Complaint (ECF No. 114) (“SAC”)

10 that it seeks to publish information contained in a draft “Transparency Report” describing the

11 amount of national security legal process that it received for the period of July 1 to December 31,

12 2013, pursuant to the Foreign Intelligence Surveillance Act (“FISA”) and National Security 13 Letter (“NSL”) statutes.1 See SAC ¶ 4. Twitter challenges the Government’s determination that

14 certain data contained in the draft report concerning FISA process it received during that period,

15 if any, is properly classified. See id. ¶ 5. Twitter brings three overlapping claims, each of which

16 alleges that restrictions on Twitter’s dissemination of information determined by the Government

17 to be classified impermissibly infringe on Twitter’s First Amendment rights. See id. ¶¶ 71–96.

18 After granting and denying in part the Government’s motion to dismiss the First Amended

19 Complaint, the Court directed the Government to move for summary judgment. See ECF No.

20 134. As set forth below, Twitter’s challenges to the Government’s classification determination

21 are meritless, and the Government is therefore entitled to summary judgment on all claims.

22

Release of the information in Twitter’s draft Transparency Report would harm national

23 security. As explained in the Unclassified Declaration of Michael Steinbach (“Steinbach Decl.”,

24 attached as Ex. 1), disclosure of granular aggregate data regarding the Government’s use of

25 national security process would harm national security by providing foreign adversaries (such as

26

27

1 Defendant’s discussion of FISA process that Plaintiff could have received is not

intended to confirm or deny that plaintiff has, in fact, received any such national security legal

28 process.

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

1

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 8 of 32

1 terrorist organizations, intelligence services, and investigative targets) with insight into the

2 Government’s investigative and intelligence activities, and the evolution of those activities over

3 time.2 See Steinbach Decl. ¶¶ 6, 7. The Government has also prepared and made available to the

4 Court, solely for ex parte, in camera review, a classified declaration by EAD Steinbach, which

5 provides additional explanation as to why disclosure of the classified information in the draft

6 report reasonably can be expected to cause serious damage to national security.3 See Notice of

7 Lodging of Classified Decl. of Michael Steinbach for Ex Parte, In Camera Review, ECF No.

8 144. These submissions, “with reasonable specificity, demonstrat[e] a logical connection

9 between the detailed information [at issue] and the reasons for classification.” Shaffer v. DIA,

10 102 F. Supp. 3d 1, 11 (D.D.C. 2015) (citing McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir.

11 1983)). The law is clear that courts should not “second guess” classification determinations by

12 the Executive Branch, and should decline to substitute the speculation of plaintiffs or the Court’s

13 own intuition where, as here, the Government has provided a reasonably specific explanation of

14 the logical connection between the information at issue and the reasons for its classification.

15 See, e.g., Shaffer, 102 F. Supp. 3d at 11; Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d

16 1190, 1203 (9th Cir. 2007).

17

Indeed, the case for deference is particularly strong here, where both Congress and the

18 Executive Branch have reached a judgment regarding the appropriate balance between

19 transparency and national security in disclosures concerning legal process. Specifically, the

20 Director of National Intelligence (“DNI”), recognizing the importance of appropriate

21 transparency with respect to the issuance of national security legal process served on

22 2 Michael Steinbach is the Executive Assistant Director (“EAD”) of the National Security

23 Branch of the Federal Bureau of Investigation (“FBI”). See Steinbach Decl. ¶ 1. EAD Steinbach

24

oversees, inter alia, the national security operations of the FBI’s Counterintelligence Division, Counterterrorism Division, and Terrorist Screening Center, and holds original classification

25 authority delegated by the Director of the FBI. Id. ¶¶ 2–3. 3 It is well-established that Courts may rely on classified submissions provided ex parte
26 and in camera to decide whether classification restrictions imposed by the Government on

27

persons subject to non-disclosure obligations comply with the First Amendment. See, e.g., Stillman v. CIA, 319 F.3d 546, 548–49 (D.C. Cir. 2003); In re: Nat’l Sec. Letter, 930 F. Supp. 2d

28 1064, 1078–79 (N.D. Cal. 2013); In re: Nat’l Sec. Letters, Case Nos. 11-cv-02173-SI, etc., 2016

WL 4501210 (N.D. Cal. Mar. 29, 2016).

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

2

Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 9 of 32

1 communication service providers such as Twitter, has declassified the public reporting of certain

2 aggregate data regarding the Government’s use of national security process by recipients of such

3 process. The DNI’s declassification is coextensive with the “reporting bands” set forth in

4 Section 603 of the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268 (2015). These

5 authorities reflect the judgment of the two political branches as to how much aggregate data

6 regarding the receipt of national security process may be disclosed “while attempting not to

7 compromise sensitive sources and methods of intelligence operations.” Select Comm. On

8 Intelligence, H. R. Rep. No. 113-452, pt. 2, § 701 (2015) (“HPSC/I Rep”). Twitter expends

9 much ink criticizing these bands, but its contention that there would be no harm to national

10 security from disclosure of the more granular classified information in its report is mistaken,

11 particularly in light of the deference owed to the contrary judgment set forth in the EAD’s

12 declarations, the DNI’s declassification, and the USA FREEDOM Act. As set forth in EAD

13 Steinbach’s declarations, disclosure of the information redacted from Twitter’s report reasonably

14 could be expected to result in damage to the national security, and that information is therefore

15 properly classified.

16

Because all three Counts of the Complaint challenge the Government’s classification

17 determination on First Amendment grounds, see SAC ¶¶ 71–96, and, as Plaintiff acknowledges,

18 it has no First Amendment right to publish classified information, see id. ¶ 73, Plaintiff’s claims

19 fail as a matter of law. Plaintiff’s peripheral challenge to statutory requirements of the FISA is

20 also meritless. For all of these reasons, as set forth in the instant submission and in EAD

21 Steinbach’s declarations, the Defendants respectfully request that the Court grant their motion

22 for summary judgment.

23

BACKGROUND

24

I. Statutory and Regulatory Background

25

The President has charged the FBI with primary authority for conducting

26 counterintelligence and counterterrorism investigations in the United States. See Exec. Order

27 No. 12333 §§ 1.14(a), 3.4(a), 46 Fed. Reg. 59941 (Dec. 4, 1981). Today, the FBI carries out

28 national security operations, including counterintelligence, counterterrorism, and other activities

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1 to defeat national security threats directed against the United States through the FBI’s National

2 Security Branch, which is overseen by EAD Steinbach. See Steinbach Decl. ¶ 2.

3

The conduct of national security investigations and the collection, production, and

4 dissemination of intelligence to support counterterrorism, counterintelligence, and other U.S.

5 national security objectives requires the FBI to collect, analyze, and disseminate information.

6 Congress has authorized the FBI to collect such information with a variety of legal tools,

7 including various authorities under the FISA and pursuant to the supervision of the Foreign

8 Intelligence Surveillance Court (“FISC”), an Article III court. See 50 U.S.C. § 1801 et seq.

9 Because the targets of national security investigations and others who seek to harm the United

10 States will take countermeasures to avoid detection, secrecy is often essential to protecting

11 national security while effectively carrying out counterterrorism and counterintelligence

12 investigations. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980). Recognizing that,

13 Congress has empowered the FISC and the Executive Branch to maintain the confidentiality of

14 national security legal process. See, e.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(h)(1)(A). In the

15 USA FREEDOM Act, Congress likewise expressed its judgment regarding the manner in which

16 recipients of national security process may publish information about their receipt of such

17 process, in the aggregate, without imposing an unacceptable risk of harm to the national security.

18

A. FISA

19

Multiple provisions of FISA provide that the FISC may issue orders that “direct”

20 recipients to provide certain information “in a manner that will protect the secrecy of the

21 acquisition.” See, e.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(h)(1)(A). For example, Titles I and

22 VII of FISA provide that FISC orders “shall direct,” and FISA directives issued by the Attorney

23 General and DNI after FISC approval of an underlying certification “may direct,” recipients to 24 provide the Government with “all information, facilities, or assistance necessary to accomplish 25 the acquisition in a manner that will protect the secrecy of the acquisition,” without limitation. 26 50 U.S.C. § 1881a(h)(1)(A) (Title VII); see also id. § 1805(c)(2)(B) (similar language for Title 27 I). Additionally, the orders “shall direct” and the directives “may direct” that recipients 28 “maintain under security procedures approved by the Attorney General and the [DNI] any

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1 records concerning the acquisition or the aid furnished” that such recipient maintains. 50 U.S.C.

2 § 1881a(h)(1)(B) (Title VII); see also id. § 1805(c)(2)(C) (similar language for Title I).

3 Consistent with the Executive Branch’s authority to control classified information, these

4 provisions explicitly provide for Executive Branch approval of the companies’ procedures for

5 maintaining the secrecy of records associated with FISA-authorized surveillance.

6

Other FISA titles that provide search or surveillance authorities also provide for secrecy

7 obligations to be imposed. See 50 U.S.C. § 1824(c)(2)(B)-(C) (requiring Title III orders to

8 require the recipient to assist in the physical search “in such a manner as will protect its secrecy”

9 and to provide that “any records concerning the search or the aid furnished” that the recipient

10 retains be maintained under appropriate security procedures); 50 U.S.C. § 1842(d)(2)(B)

11 (requiring Title IV orders to direct that recipients “furnish any information, facilities, or technical

12 assistance necessary to accomplish the installation and operation of the pen register or trap and

13 trace device in such a manner as will protect its secrecy,” and that “any records concerning the

14 pen register or trap and trace device or the aid furnished” that the recipient retains shall be

15 maintained under appropriate security procedures); 50 U.S.C. § 1861(d)(1) (providing that “[n]o

16 person shall disclose to any other person that the [FBI] has sought or obtained tangible things

17 pursuant to an order under” Title V of FISA). Accordingly, to the extent that Plaintiff has

18 received any process pursuant to Titles I and VII of FISA, the Title VII directives would contain

19 the statutorily permitted nondisclosure provisions, while the Title I orders would contain

20 nondisclosure requirements that track the statutory provision. Likewise, Title III, IV, or V orders

21 would be accompanied by the statutory requirements described above.

22

B. USA FREEDOM Act

23

Between 2013 and 2015, Congress considered various bills relating to the appropriate

24 level of transparency regarding the Government’s use of national security process. See

25 Steinbach Decl. ¶ 18; e.g., H.R. 3361, 113th Cong. (2014); S. 2685, 113th Cong. (2014). The

26 bills were introduced to address developments affecting the Government’s use of national

27 security process, including the public interest in greater transparency, and the decision of the

28 Second Circuit Court of Appeals in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).

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1 These efforts culminated with enactment of the Uniting and Strengthening America By Fulfilling

2 Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (“USA FREEDOM

3 Act”).

4

In Section 603, codified at 50 U.S.C. § 1874, the USA FREEDOM Act reflects both

5 Congress’s and the Executive’s judgment regarding the manner in which providers may lawfully

6 report aggregate data reflecting their receipt of national security process. This section sets forth

7 two reporting methods that are similar or identical to options previously available to

8 communications providers following the declassification of such aggregate data by the DNI on

9 January 27, 2014. See 50 U.S.C. §§ 1874(a)(1), (a)(3). In addition, Section 603 sets forth two

10 additional methods of reporting on the receipt of national security process, which allow for even

11 more precise numerical reporting of the number of process received over a longer time period.

12 See 50 U.S.C. §§ 1874(a)(2), (a)(4). On July 2, 2015, the DNI, in his discretion and consistent

13 with Section 603, declassified data related to national security process received by providers if

14 publicly reported by means of one of the four options which are set forth in the USA FREEDOM

15 Act. See Steinbach Decl. ¶ 20 (citing ODNI Memorandum for Distribution (ES 2015-00366)).

16 Thus, in accordance with the DNI’s discretionary declassification and as provided in the USA

17 FREEDOM Act, recipients of national security process now may choose to publicly report

18 information about the quantity of national security process they receive in one of four ways. The

19 DNI’s 2015 declassification decision and the four public reporting options enumerated in the

20 USA FREEDOM Act thereby superseded the previous framework for public reporting set forth

21 at the time of the January 27, 2014 DNI declassification determination.

22

II. Factual and Procedural Background

23

On April 1, 2014, Twitter sent a draft proposed Transparency Report to the FBI, seeking

24 advice from the FBI as to which, if any, parts of the proposed report were classified and which

25 could be lawfully published. See Steinbach Decl. ¶ 22. The report contained data reflecting the

26 specific numbers and types of national security legal process that Twitter had received during the

27 preceding six month period, from July 1 through December 31, 2013, in figures much more

28 precise than had been declassified at that time, or have been declassified today. Id.

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1

By letter dated September 9, 2014, the FBI General Counsel informed counsel for Twitter

2 that, after careful review of Twitter’s proposed Transparency Report, the FBI had concluded that

3 certain information contained in the report was classified and could not lawfully be publicly

4 released. Id. ¶ 23. The General Counsel specifically identified the information in question,

5 informing Twitter that its proposed report “would disclose specific numbers of orders received,

6 including characterizing the numbers in fractions or percentages, and would break out particular

7 types of process received” in a manner that would disclose classified information. Id. On

8 November 17, 2014, DOJ provided Twitter, through counsel, an unclassified version of Twitter’s

9 draft Transparency Report from which classified information had been redacted. Id. ¶ 24.

10

As the legal framework described above has evolved, so has this action. Plaintiff’s

11 original Complaint, ECF No. 1, focused on the disclosure options available in connection with

12 the January 27, 2014 DNI declassification. The Court held that the claims therein were mooted

13 by the passage of the USA FREEDOM Act. See ECF No. 85. Subsequently, the Court also

14 dismissed Plaintiff’s First Amended Complaint, finding that Plaintiff’s constitutional claims

15 were not viable absent a challenge to the classification of information in the draft Transparency

16 Report. Order, ECF No. 113 at 8. The claims now operative, as set forth in Plaintiff’s Second

17 Amended Complaint, are detailed below.

18

Plaintiff’s Claims in the Second Amended Complaint

19

Plaintiff asserts three duplicative causes of action, see SAC ¶¶ 71–96, based on which it

20 seeks declaratory and injunctive relief to allow it to publish the information from the draft

21 Transparency Report that the Government determined to be properly classified, as well as similar

22 information covering future periods of time, see id., Prayer for Relief.

23

Count I is styled as an implied cause of action under the First Amendment. See id. at 17.

24 Plaintiff acknowledges that there is no First Amendment right to publish the information at issue

25 if it is properly classified, see id. ¶ 73, but alleges, in sum, that because the information redacted

26 from the draft Transparency Report is not properly classified, any prohibition on its disclosure

27 constitutes a unconstitutional prior restraint on its speech, see id. ¶¶ 72, 76, 79–82, 84–86. There

28 are several separate components to Count I.

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1

First, Plaintiff alleges that the information redacted from the draft Transparency Report is

2 not properly classified because it does not satisfy the requirements of Executive Order 13526.

3 Id. ¶¶ 73–81. In support, Plaintiff cites media reports that it claims show “[t]he federal

4 government often classifies information that could not be expected to cause damage to U.S.

5 national security,” id. ¶ 77, as well as legislation that the President signed into law in 2010 that

6 was designed to reduce over-classification, id. ¶ 78. Specifically, as to the information at issue

7 here, Plaintiff asserts “on information and belief” that the Government cannot demonstrate that

8 the information at issue “poses a threat to U.S. national security, let alone one that is ‘serious’ or

9 ‘exceptionally grave.’” Id. ¶ 79. Further, Plaintiff argues that, because it seeks to publish

10 information about activity it has conducted “using its own personnel and resources,” the

11 information at issue “is not ‘owned by, produced by or for, or under the control of the United

12 States Government.’” Id. ¶ 80 (quoting Exec. Order 13526 § 1.1). Plaintiff concludes that by

13 “improperly classif[ying] information and then prevent[ing] its publication,” the Government has

14 violated the First Amendment. Id. ¶ 85.

15

Also as part of Count I, Plaintiff contends that the Court should issue a declaratory

16 judgment that “the standards set forth in Executive Order 13526 constitute the only grounds on

17 which the government may rely to prohibit disclosure of the redacted information in the draft

18 Transparency Report.” Id. It appears that this request is based on Plaintiff’s contention that “[i]f

19 the information that Twitter seeks to publish is not properly classified under Executive Order

20 13526, then the government has no other basis for prohibiting its disclosure.” Id. ¶ 82. Although

21 Plaintiff discusses its contention that FISA and FISC orders do not prohibit disclosure of

22 aggregate data, and its alternative argument that FISA and FISC orders are unconstitutional if

23 they do restrict the publication of such information, id. ¶¶ 83–84, Plaintiff does not otherwise

24 explain the grounds for its position that no other authority could restrict the disclosure of the

25 information at issue. See id. ¶¶ 71–86.

26

Count II is a duplicative First Amendment claim that mirrors the substance of the claim

27 and relief sought in Count I, compare id. ¶¶ 85–86 with id. ¶¶ 90–91, but is asserted through the

28 waiver of sovereign immunity provided under the Administrative Procedure Act (“APA”), see id.

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1 at 21. Like Count I, the essence of Count II is Plaintiff’s allegation that the information redacted

2 from the draft Transparency Report is not properly classified, and that Plaintiff therefore has a

3 First Amendment right to publish it. See id. ¶¶ 88–89. In Count II, Plaintiff challenges the

4 “decision to censor Twitter’s transparency report” as a “final agency action” through which it has

5 suffered a legal wrong, because the agency decision not to allow publication “violates the First

6 Amendment.” Id. ¶ 88–89. Count II does not specifically identify the action to which it refers,

7 but the SAC refers elsewhere to the September 9, 2014 letter from FBI General Counsel James

8 A. Baker to counsel for Plaintiff, which advised Plaintiff that “information contained in the

9 report is classified and cannot be publicly released.” ECF No. 1-5 (“FBI Letter”); SAC ¶ 57

10 (describing and quoting the FBI Letter). The SAC also refers to the Government’s production,

11 on November 17, 2014, of a redacted version of the draft Transparency Report, from which the

12 Government redacted classified national security information; see SAC ¶ 61. In any event, this

13 “APA” claim amounts to another version of the same challenge to the Government’s

14 determination that information in the draft Transparency Report is classified, and for which

15 Plaintiff seeks the same relief that it does with Count I: injunctive relief permitting publication 16 of information that is not properly classified and three forms of declaratory relief.4 Compare id.

17 ¶¶ 85–86 with id. ¶¶ 90–91.

18

In Count III, Plaintiff raises another First Amendment claim, again nearly identical in

19 scope, asserting that the Espionage Act is unconstitutional as it would allegedly be applied to it 20 to foreclose publication of the information the Government has determined to be classified.5 See

21 id. ¶¶ 92–96. Plaintiff avers that it has a “reasonable concern” that it would face prosecution if it

22 4 Specifically, Plaintiff seeks: 1) a declaration that Executive Order 13526 is the only

23 basis on which the Government can restrict publication of the information reacted from the draft

24

Transparency Report; 2) a declaration that the FISA nondisclosure provisions do not restrict publication of the information redacted from the draft Transparency Report; and 3) a declaration

25 that the information redacted from the draft Transparency Report was improperly classified, and

that Plaintiff therefore has the right to publish such information. Id. ¶ 90. Only the last listed 26 declaration pertains to the decision that Plaintiff seeks to challenge—the Government

27

determination that information is classified, see id. ¶¶ 57, 61, 88. 5 The Espionage Act of 1917, 40 Stat. 217, was enacted to protect information related to

28 national defense from being used to the advantage of adversaries. It has been amended

numerous times and is currently codified at 18 U.S.C. § 793 et seq.

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1 were to disclose the classified information redacted from its draft Transparency Report. Id. ¶ 93.

2 Arguing that any such prosecution would violate its First Amendment right to speak truthfully

3 about matters of public interest, Plaintiff seeks declaratory and injunctive relief barring any such

4 prosecution. Id. ¶¶ 95–96. In short, all three Counts are First Amendment claims that turn on

5 one issue: whether the Government properly determined that information redacted from the

6 Transparency Report is classified, i.e., that its disclosure reasonably could be expected to harm

7 national security.

8

The Prayer for Relief largely reflects the requests for relief in Plaintiff’s Counts I–III, but

9 also contains a freestanding request that the Court enter a declaratory judgment that “[t]he FISA

10 secrecy provisions are facially unconstitutional under the First Amendment because they do not

11 require nondisclosure orders to contain a defined duration.” See id. Prayer for Relief, (A)(v).

12 That request is not tethered to Plaintiff’s request to publish its draft Transparency Report, which,

13 as described above, is the focus of all three of the Counts asserted in the SAC. See id. ¶¶ 71–96.

14

LEGAL STANDARD

15

Summary judgment is appropriate where “there is no genuine dispute as to any material

16 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is properly

18 regarded “not as a disfavored procedural shortcut, but rather as an integral part of the Federal

19 Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination

20 of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

21 In cases where the central dispute is whether information is properly classified, summary

22 judgment is proper if the Court is able to reach such a determination based upon materials

23 submitted by the Government, including through in camera and ex parte review. See Stillman,

24 517 F. Supp. 2d 32 (D.D.C. 2007) (granting summary judgment upon remand).

25

ARGUMENT

I. The Court Should Grant Judgment for Defendants Based on the Detailed

26

Showing that Information in the Transparency Report is Properly Classified.

27

All three Counts of the Complaint rest on Plaintiff’s claim that it has a First Amendment

28 right to publish the information found by the Government to be classified in Twitter’s draft

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1 Transparency Report. As this Court recognized, however, “[t]he First Amendment does not

2 permit a person subject to secrecy obligations to disclose classified national security

3 information.” ECF No. 113 at 8 (citing Snepp, 444 U.S. at 509 n.3; Wilson v. CIA, 586 F.3d 171,

4 183 (2d Cir. 2009); and Stillman, 319 F.3d 548–49); see also Berntsen v. CIA, 618 F. Supp. 2d

5 27, 29-30 (D.D.C. 2008). Indeed, Plaintiff acknowledges that it has no First Amendment right to

6 publish properly classified information. SAC ¶ 73.

7

It is therefore undisputed that Plaintiff has no First Amendment right to publish the

8 information redacted from the draft Transparency Report if that information is properly

9 classified. As discussed below, EAD Steinbach, a senior FBI official with extensive experience

10 in FBI national security operations and who exercises original classification authority, has

11 determined that this information meets the standards set forth in Executive Order 13526, 75 Fed.

12 Reg. 707 (Dec. 29, 2009). Section A explains why the Court should grant deference to the

13 judgment of the Executive Branch on this issue, while Section B describes, to the extent possible

14 on the public record, the reasons for EAD Steinbach’s determination.

15

A. The Government’s Classification Decision Warrants the Utmost Deference.

16

“[C]ourts have traditionally shown the utmost deference” to the Executive Branch’s

17 constitutional authority to classify and control access to national security information. Dep’t of

18 Navy v. Egan, 484 U.S. 518, 530 (1988) (quoting United States v. Nixon, 418 U.S. 683, 710

19 (1974)); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003)

20 (noting the D.C. Circuit has emphatically “reject[ed] any attempt to artificially limit the long-

21 recognized deference to the executive on national security issues) (reviewing cases)). Consistent

22 with that practice, the Ninth Circuit has “acknowledge[d] the need to defer to the Executive on

23 matters of . . . national security,” emphasizing that the Court “surely cannot legitimately find

24 [itself] second guessing the Executive in this arena.” Al-Haramain, 507 F.3d at 1203.

25

In Al-Haramain, the Ninth Circuit (reviewing an assertion of the state secrets privilege)

26 considered the Government’s conclusion that release of information about whether Al-Haramain

27 had been subject to Government surveillance under the “Terrorist Surveillance Program” would

28 damage national security. In particular, the court considered whether the Government could

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1 protect a classified document, marked TOP SECRET, that had been inadvertently disclosed by

2 the Government to the plaintiff during an administrative process involving whether the plaintiff

3 should be designated as a global terrorist organization. The Court observed that “at some level,

4 the question whether Al-Haramain has been subject to NSA surveillance may seem, without

5 more, somewhat innocuous.” Id. Underscoring the point, the Court noted Al-Haramain’s

6 argument that “[its] status as a ‘Specially Designated Global Terrorist’ suggest[ed] that the

7 government [was] in fact intercepting [its] communications” under the Terrorist Surveillance

8 Program. Id. However, the Court emphasized that its “judicial intuition about this proposition

9 [was] no substitute for documented risks and threats posed by potential disclosure of national 10 security information.” Id.6

11

The deference given to the Executive in this sphere makes sense. Because of the

12 President’s constitutional role in national security matters, the Executive Branch is uniquely

13 situated to assess the national security consequences of the disclosure of particular information.

14 Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (“Mindful that courts have little expertise in

15 either international diplomacy or counterintelligence operations, we are in no position to dismiss

16 the CIA’s facially reasonable concerns.”); Egan, 484 U.S. at 529 (judgments as to harm that

17 would result in the disclosure of certain information “must be made by those with the necessary

18 expertise in protecting classified information”). The Executive Branch, in particular the United

19 States Intelligence Community, has the complete picture of the manner in which particular

20 disclosures may pose a danger to national security. In large part, this is due to the fact that

21 adversaries can combine any individual disclosure with information from other sources to draw

22 conclusions harmful to national security, a process that courts commonly refer to as the “mosaic”

23 theory of intelligence-gathering:

24

It requires little reflection to understand that . . . foreign intelligence gathering in

this age of computer technology is more akin to the construction of a mosaic than

25

it is to the management of a cloak and dagger affair. Thousands of bits and pieces

26

6 While Al-Haramain involved an assertion of the state secrets privilege, review of the

27

classification determination at issue here entails the same inquiry—whether information may properly be protected in the interests of national security—and thus the same deference is due.

28 The Court in Al-Haramain found that the privilege had been appropriately invoked based on the

Government’s public and in camera and ex parte submissions. 507 F.3d at 1203–04.

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1

of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate . . . . “The courts,

2

of course, are ill-equipped to become sufficiently steeped in foreign intelligence

matters to serve effectively in the review of secrecy classifications in that area.”

3 Halkin v. Helms, 598 F.2d 1, 8–9 (D.C. Cir. 1978) (quoting United States v. Marchetti, 466 F.2d

4 1309, 1318 (4th Cir. 1972)). The Government’s assessment of potential harm must be given

5 deference because of the expertise and experience of intelligence officials in understanding when

6 and why “each individual piece of intelligence information, much like a piece of jigsaw puzzle,

7 may aid in piecing together other bits of information even when the individual piece is not of

8 obvious importance itself.” Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982) (quoting

9 Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)).

10 In light of the absence of such necessary experience and “broad view” of foreign

11 intelligence matters, see Marchetti, 466 F.2d at 1318, the judiciary should not second-guess the

12 national security and foreign relations concerns articulated by the Executive Branch. See Al-

13 Haramain, 507 F.3d at 1203 (discussed above); Ctr. for Nat’l Sec. Studies, 331 F.3d at 928 (“It is

14 abundantly clear that the government’s top counterterrorism officials are well-suited to make this

15 predictive judgment. Conversely, the judiciary is in an extremely poor position to second-guess

16 the executive’s judgment in this area of national security.”); McGehee, 718 F.2d at 1149

17 (“[J]udicial review of CIA classification decisions, by reasonable necessity, cannot second-guess

18 CIA judgments on matters in which the judiciary lacks the requisite expertise.”). For these

19 reasons, “it is the responsibility of the [Executive], not that of the judiciary, to weigh the variety

20 of complex and subtle factors in determining whether disclosure of information may lead to an

21 unacceptable risk of compromising the Agency’s intelligence-gathering process.” CIA v. Sims,

22 471 U.S. 159, 180 (1985); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)

23 (“when it comes to collecting evidence and drawing factual inferences [on national security

24 matters], the lack of competence on the part of the courts is marked, and respect for the

25 Government’s conclusions is appropriate”). This Court should, therefore, accord substantial

26 weight to the Government’s determination concerning the national security harms that could

27 reasonably be expected to result from disclosure of the information redacted from Twitter’s draft

28 Transparency Report.

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1

Moreover, the views of the Executive should be afforded even greater weight, where, as

2 here, Congress and the Executive agree on the need and manner for protecting the type of

3 information at issue. Cf. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083–84 (2015) (quoting

4 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J. concurring))

5 (“when the President acts pursuant to an express or implied authorization of Congress, his

6 authority is at its maximum, for it includes all that he possesses in his own right plus all that

7 Congress can delegate.”). Actions taken by the Executive with specific congressional

8 endorsement, therefore, are “supported by the strongest presumptions and the widest latitude of

9 judicial interpretation, and the burden of persuasion would rest heavily upon any who might

10 attack it.” Dames & Moore v. Regan, 453 U.S. 654, 656 (1981) (quoting Youngstown, 343 U.S.

11 at 637) (Jackson, J., concurring). Here, the reporting options available under Section 603 reflect

12 both the judgment of the DNI to declassify aggregate data concerning national security process,

13 if reported in a manner consistent with one of the four formats set forth in the Act, and

14 Congressional judgment regarding the measure of disclosure that can be permitted “while

15 attempting not to compromise sensitive sources and methods of intelligence operations.”

16 HPSC/I Rep. § 701.

17

Plaintiff’s claims seeking to publish even more granular data than that permitted by the

18 bands is therefore contrary not only to the judgment of the Executive Branch, but also the

19 informed policy judgment of Congress. Plaintiff’s speculation that no harm would be wrought

20 by its proposed disclosure, see SAC ¶ 79, cannot outweigh the determinations of both political

21 branches. Indeed, courts have repeatedly, and necessarily, rejected such non-governmental

22 views regarding whether a particular disclosure may harm national security, even when

23 presented by former intelligence officers. See, e.g., Snepp, 444 U.S. at 512 (“When a former 24 agent relies on his own judgment about what information is detrimental, he may reveal 25 information that the CIA – with its broader understanding . . . could have identified as 26 harmful.”); Gardels, 689 F.2d at 1106 & n.5 (former agent’s “own views as to the lack of harm 27 which would follow the disclosure” are insufficient to justify further inquiry beyond the

28

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1 Government’s “plausible and reasonable” informed position).7 Here, too, the Court should reject

2 Plaintiff’s apparent view that its proposed disclosures would be innocuous; that view cannot

3 overcome the Executive Branch’s judgment and determination that disclosure of the classified

4 information at issue reasonably could be expected to damage national security. See Steinbach

5 Decl. at ¶¶ 29, 39.

6

B. The Information Redacted from the Draft Transparency Report is Properly

Classified Pursuant to Executive Order 13526. 7
Pursuant to the President’s constitutional authority to protect and control national security

8 information, see Egan, 484 U.S. at 527 (citing U.S. Const., Art. II, § 2), the President issued

9 Executive Order 13526: Classified National Security Information. This Executive Order requires

10 four conditions for the classification of national security information: (1) the information must be

11 classified by an “original classification authority”; (2) the information must be “owned by,

12 produced by or for, or [be] under the control of” the Government; (3) the information must fall

13 within one of the authorized classification categories listed in section 1.4 of the Executive Order;

14 and (4) the original classification authority must “determine[ ] that the unauthorized disclosure of

15 the information reasonably could be expected to result in damage to the national security” and

16 must be “able to identify or describe the damage.” Exec. Order 13526, § 1.1. Additionally,

17 Executive Order 13526 contains procedures for “derivative” classification, which occurs when

18 “information that is already classified” is “incorporat[ed], paraphras[ed], restat[ed], or

19 generat[ed] in new form.” Id. § 6.1(o). Persons who “reproduce, extract, or summarize

20 classified information . . . need not possess original classification authority” and are directed to

21 “observe and respect original classification decisions,” including by “carry[ing] forward to any

22 newly created documents the pertinent classification markings.” Id. § 2.1(a), (b). Here, the

23 information at issue meets all four classification requirements, pursuant to established principles

24 governing original and derivative classification.

25 7 See also Halperin v. Nat’l Sec. Council, 452 F. Supp. 47, 51 (D.D.C. 1978) (Even
26 though plaintiff was a self-proclaimed “scholar and actor in the field of foreign policy and

27

national security,” nothing in “plaintiff’s submissions justifie[d] the substitution of this Court’s judgment or the informed judgment of plaintiff for that of the officials constitutionally

28 responsible for the conduct of United States foreign policy as to the proper classification of

[documents].”), aff’d, 612 F.2d 586 (D.C. Cir. 1980).

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 22 of 32

1

1. An Original Classification Authority Has Determined that the Information Is Classified.

2

The information redacted from the draft Transparency Report has been determined to be

3 properly classified by an original classification authority. Executive Order 13526 defines

4 “Original Classification Authority” as “an individual authorized in writing . . . by agency heads

5 or other officials designated by the President, to classify information in the first instance.” Exec.

6 Order 13526, § 6.1(gg). As described above, EAD Steinbach, as the head of the FBI’s National

7 Security Branch, exercises original classification authority delegated by the Director of the FBI.

8 See Steinbach Decl. ¶ 3. In the exercise of that authority, he has determined that the information

9 redacted from the Transparency report is properly classified, satisfying the criteria set forth in

10 Section 1.1(1) of Executive Order 13526. Id. ¶¶ 29, 39.

11

2. The Information “Is Owned By, Produced By or For, or Is Under

12

the Control of” the Government.

The information at issue is also “owned by, produced by or for, or is under the control of” 13

the Government, as required under Section 1.1(2). At issue in this case are aggregate numbers 14

concerning national security process the Government has served upon Twitter. In particular, 15

Plaintiff puts at issue the disclosure of information concerning FISA process it has received, if 16

any, or may receive in the future, as well as NSLs issued by the Government. Any FISA orders 17

or directives served upon Twitter, or any NSLs issued to Twitter, were undoubtedly “owned by” 18

and “produced by or for” the Government. Such materials do not lose their secrecy protections 19

when they are served upon third parties. To the contrary, parties who are served with such 20

process are subject to secrecy obligations imposed by the Government, typically in the form of 21

nondisclosure agreements with recipients of such process, see E.O. 13526, § 4.1(2). 22

Furthermore, secrecy obligations may be supported by judicial orders (such as from the FISC) to 23

maintain the secrecy of legal process where the Government determines that is required to 24

protect national security interests. See supra, Background, I.A (describing FISA secrecy 25

authorities); see also, e.g., 18 U.S.C. § 2709(c) (providing for imposition of nondisclosure 26

requirements on NSL recipients). These materials, therefore, do not lose the characteristics of 27

28

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 23 of 32

1 having been owned, produced by, and under control of the Government when the Government

2 seeks to serve legal process on third parties and entrusts those parties with sensitive information.

3

The principles concerning derivative classification underscore this point. Executive

4 Order 13526 recognizes that individuals may “reproduce, extract, or summarize classified

5 information.” In such instances, the material need not be classified by an original classification

6 authority; instead, people who produce such materials are directed to “observe and respect

7 original classification decisions.” E.O. 13526 § 2.1(a), (b). Otherwise, classified materials

8 would lose their protections anytime another person summarized or discussed those materials in

9 some other form. The same principles apply here to Twitter’s summary of any classified

10 materials it has received: where sensitive materials are produced by the Government, served

11 upon a third party, and subject to binding secrecy requirements, the materials do not lose their

12 protected character whenever a third party seeks to summarize those materials in some other

13 form. Aggregate descriptions concerning receipt of national security process thus flow directly 14 from any materials that the Government has created and given to Twitter.8

15

3. The Information Falls Within the Classification Categories of

Section 1.4 of Executive Order 13526.

16

The information redacted from the draft Transparency Report falls squarely within three

17 of the classification categories under Section 1.4 of Executive Order 13526. As relevant here,

18 that section provides that information shall be considered for classification if it pertains to:

19 intelligence activities (including covert action), intelligence sources or methods, or cryptology,

20 Exec. Order 13526, § 1.4 (c); foreign relations or foreign activities of the United States, id. § 1.4

21 (d); or vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or

22 protection services relating to the national security, id. § 1.4 (g).

23 As stated in EAD Steinbach’s Declaration, the disclosure of the information at issue

24 would provide our adversaries a clear picture of the Government’s surveillance activities

25 pertaining to national security investigations, thereby revealing information pertaining to

26

27 8 To be sure, Twitter also contends that the information at issue here is not properly
28 classified because it has been summarized in such a way as to avoid the risk of any harm to national security. In that regard, Twitter is mistaken for the reasons explained in Section B.4.

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 24 of 32

1 intelligence sources and methods, and foreign relations or foreign activities of the United States,

2 falling within Section 1.4(c) and 1.4 (d). See Steinbach Decl. ¶¶ 30–38. Such disclosures also

3 would allow adversaries to infer whether or not the Government has acquired a collection

4 capability on particular communication services, thereby revealing information pertaining to

5 “capabilities of systems . . . relating to the national security,” falling within Section 1.4(g). See

6 id. Similarly, because such disclosures could also permit adversaries to identify “safe” platforms

7 on which their communications are not likely to be subject to surveillance, they would also

8 reveal information pertaining to “vulnerabilities . . . of systems . . . relating to the national

9 security.” E.O. 13526 at § 1.4(g); see id. The classified Declaration of EAD Steinbach,

10 submitted to the Court in camera and ex parte, further elaborates on why the information at issue

11 falls within the protections of the Executive Order.

12

4. Disclosure of the Information Reasonably Could Be Expected to

Cause Identifiable Harm to National Security.

13 Finally, in satisfaction of Section 1.1(4) of the Executive Order, EAD Steinbach, an

14 original classification authority, “has determined that the unauthorized disclosure of the

15 information reasonably could be expected to result in damage to the national security,” and EAD

16 Steinbach has been “able to identify or describe the damage.” The Supreme Court and Ninth

17 Circuit guidance discussed above, as well as the approach taken by other courts to have

18 considered the Government’s explanations of its classification determinations, see Argument

19 Section I.A, indicate that the Court should review the judgments of EAD Steinbach (and related

20 classification judgments by the DNI) with “utmost deference,” consistent with the expertise and

21 constitutional authority of the Executive in national security matters. And here as well, the

22 judgment of Congress, reflected in the disclosure bands set forth in the USA FREEDOM Act,

23 provides still more reason to give great weight to the Executive’s judgment regarding the level of

24 detail about a company’s receipt of national security process that can be publicly disclosed

25 without incurring an unacceptable risk to national security.

26 Of course, deferential review does not mean that courts have no role to play in the review

27 of a Government decision that information cannot be published because it is classified. See Ctr.

28 for Nat’l Sec. Studies, 331 F.3d at 932. In such cases, courts focus on whether the Government

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 25 of 32

1 “in fact had good reason to classify, and therefore censor the materials at issue.” Shaffer, 102 F.

2 Supp. 3d at 11 (citing McGehee, 718 F.2d at 1148). Specifically, courts require that the

3 Government justify its redactions “with reasonable specificity, demonstrating a logical

4 connection between the detailed information and the reasons for classification.” Id. (citing

5 McGehee, 718 F.2d at 1148–49); accord, e.g., Wilson v. CIA, 586 F.3d 171, 185–86 (2d Cir.

6 2009) (same). “The court’s task is not to second-guess the Agency, but simply to ensure that its

7 reasons for classification are rational and plausible ones.” Wilson, 586 F.3d at 185–86.

8

As the Government explained in its Opposition to the Plaintiff’s Motion for an Order

9 Directing Defendants to Initiate an Expedited Security Clearance Process for Plaintiff’s Counsel,

10 see ECF No. 133 at 2–3, 4–6, in analogous cases addressing a challenge by persons subject to

11 nondisclosure obligations pursuant to a Government determination that information cannot be

12 published because it is classified, courts conduct the above inquiry by examining both the

13 materials submitted by the Government in its publicly-available briefing, as well as the

14 Government’s classified explanations, submitted in camera and ex parte. The D.C. Circuit in

15 McGehee “anticipate[d] that in camera review of affidavits, followed if necessary by further

16 judicial inquiry, would be the norm” in such cases,” 718 F.2d at 1149, and, in Stillman, held that

17 the district court had erred when it did not begin its review with that step. See 319 F.3d at 548–

18 49 (remanding to the district court for that court “to determine first whether it [could] resolve the

19 classification [of the information at issue] ex parte”). Since Stillman, courts have followed this

20 guidance. See Shaffer, 102 F. Supp. 3d at 10 (“a district court must first attempt to resolve a

21 classification challenge ex parte”) (citing Stillman, 319 F.3d at 548–49); Boening v. CIA, 579 F.

22 Supp. 2d 166, 174 (D.D.C. 2008); Berntsen, 618 F. Supp. 2d at 28, 30.

23

This line of authority presents the closest analogue to the present situation, and, as this

24 Court noted in its May 2, 2016 Order, these cases “describ[e] [the] procedures for [a] challenge

25 to classification decision[s]” in this setting. ECF No. 113 at 8 (citing Stillman, 319 F.3d at 548–

26 49). Accordingly, the Government has followed those procedures, and submitted the Classified

27 Declaration of EAD Steinbach, solely for in camera and ex parte review, which provides a

28 detailed explanation of the reasons why, in the judgment of the EAD of the FBI, the disclosure of

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 26 of 32

1 the information at issue here reasonably could be expected to cause serious damage to the

2 national security.

3

To the extent possible consistent with national security, EAD Steinbach’s unclassified

4 declaration discusses those reasons on the public record. See generally Ex. 1. Specifically, EAD

5 Steinbach explains that disclosure of the granular aggregate data in the draft Transparency

6 Report would “allow our adversaries and targets of investigations to piece together a mosaic of

7 information that would provide them significant insight into the U.S. Government’s

8 counterterrorism and counterintelligence efforts and capabilities.” Id. ¶ 30; see also ¶¶ 7–8, 36.

9 Relying on that mosaic, adversaries could “undermine both current and future efforts by the

10 Government to collect foreign intelligence and to detect, obtain information about, or prevent or

11 protect against threats to the national security” by, among other possibilities, taking “operational

12 security measures to conceal their activities, alter[ing] their methods of communication to exploit

13 secure channels of communication, or otherwise counter[ing], thwart[ing], or frustrat[ing] the

14 ability of the Government to pursue them.” Id. ¶ 31. Adversaries thereby could “not only []

15 ascertain the direction and focus of past national security investigation, but also . . . proactively

16 exploit transparency reporting to detect and thwart current and future surveillance by the

17 Government.” Id. Data released at the level of granular specificity sought by Twitter, moreover,

18 would reveal or tend to reveal highly valuable information about the Government’s national

19 security collection capabilities and investigative interests. Id. ¶¶ 7, 36. And, of course, if

20 Plaintiff were to make such disclosures, other companies likely would publish similar data, and

21 our adversaries could soon obtain a comprehensive picture of the Government’s national security

22 surveillance activity. See id. ¶ 6 n.4, ¶ 32. Importantly, our adversaries actively “gather publicly

23 available information to learn about the capabilities, sources, and methods of U.S. intelligence

24 and law enforcement agencies,” and react to the information they learn by taking

25 countermeasures to limit the effectiveness of U.S. intelligence and law enforcement activities. 26 See Steinbach Decl. ¶¶ 33–35.9 These factors demonstrate that the disclosure of the information

27

28

9 Accord In re Mot. for Release of Ct. Records, 526 F. Supp. 2d 484, 494 (F.I.S.C. 2007)

(“The identification of . . . methods of surveillance would permit adversaries to evade

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 27 of 32

1 at issue here could significantly harm counterterrorism and counterintelligence efforts, and

2 otherwise could reasonably be expected to cause at least serious damage to the national security.

3

Taken together, EAD Steinbach’s unclassified declaration and the more-detailed

4 discussion in his classified declaration demonstrate that the Government “in fact had good reason

5 to classify, and therefore censor,” Shaffer, 102 F. Supp. at 11, the information redacted from the

6 Plaintiff’s draft Transparency Report. Through these materials, the Government has justified its

7 redactions “with reasonable specificity, demonstrating a logical connection between the

8 [redacted information] and the reasons for classification.” Id. Under the authority discussed

9 above, such a showing establishes that the information at issue is properly classified.

10

*****

11

As this Court has recognized, “[t]he First Amendment does not permit a person subject to

12 secrecy obligations to disclose classified national security information.” ECF No. 113 at 8

13 (dismissing First Amendment claims because Plaintiff had not challenged the classification of

14 the information that it sought to publish). Now that the Government has established that the

15 information in question is properly classified, that showing is dispositive; Plaintiff has no First

16 Amendment right to publish such information, and summary judgment should be entered for the 17 Government on Counts I–III.10

18

II. The Legislative and Judicial Branches Also Lawfully May Take Steps to

19

Safeguard National Security Information.

20

As part of Count I and Count II, Plaintiff seeks a declaration under the First Amendment

21 that Executive Order 13526 “constitute[s] the only grounds on which the government may rely to

22 prohibit disclosure of the redacted information in the draft Transparency Report,” SAC ¶¶ 85, 90.

23 Plaintiff also seeks a declaration that FISA does not prohibit the disclosures at issue here, or that,

24 insofar as it does prohibit them, it is unconstitutional. But the Court need not, and should not,

25

surveillance, conceal their activities, and possibly mislead investigators through false 26 information.”).

27

10 Because Twitter acknowledges that it has no First Amendment right to publish properly

classified information, see SAC ¶ 73, and the Government has demonstrated that the information

28 at issue is properly classified, no inquiry into whether “the restriction on Twitter’s speech is []

narrowly tailored to serve a compelling governmental interest,” SAC ¶ 84, is necessary.

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 28 of 32

1 reach these questions; if the Court finds that the information at issue is properly classified, as

2 discussed above, then there is no First Amendment right to publish it. The Ninth Circuit recently

3 reiterated that, as a “‘fundamental rule of judicial restraint,’ [a court] ‘must consider

4 nonconstitutional grounds for decision’ before ‘reaching any constitutional questions.’” In re

5 Ozenne, --- F.3d ---, 2016 WL 6608963, at *4 (9th Cir. Nov. 9, 2016) (quoting Jean v. Nelson,

6 472 U.S. 846, 854 (1985)). Based on the same principle, the D.C. Circuit in Stillman held that

7 the district court had abused its discretion by deciding a First Amendment issue before

8 determining, based on the Government’s ex parte submission, whether the information that the

9 plaintiff sought to publish was classified. 319 F.3d at 547–49. In so holding, the D.C. Circuit

10 highlighted that “[i]f the Government classified the information properly, then Stillman simply

11 [had] no first amendment right to publish it.” Id. at 548. So, too, in this case. See supra 11.

12

In any event, if the Court were to consider Plaintiff’s other arguments, the Court would

13 find that Plaintiff’s attempts to limit the protection for the information at issue are without merit.

14 Plaintiff cites no authority for the proposition that the only manner in which national security

15 information can be protected from disclosure is through Executive Order. To be sure, the

16 protection of classified information by the Executive Branch, which is based on the President’s

17 Article II constitutional authority, is undoubtedly the paramount consideration in deciding

18 whether information should be protected from disclosure. See supra Argument, I.A. But, as

19 discussed below, other authorities may also apply to protect the information redacted from the

20 draft Transparency Report from disclosure, including statutes and court orders.

21

To begin with, Plaintiff’s contention that FISA nondisclosure provisions would not

22 protect aggregate data from disclosure is contrary to the text of the statute as written by

23 Congress. For example, Title I provides that FISC orders, under certain conditions, “shall direct” 24 recipients to assist the Government “in such a manner as will protect [the] secrecy [of the 25 acquisition],” 50 U.S.C. § 1805(c)(2)(B), and “maintain under security procedures approved by 26 the Attorney General and the [DNI] any records concerning [the acquisition] or the aid 27 furnished,” id. § 1805(c)(2)(C). Title VII contains similar provisions that may be included in 28 directives issued thereunder. See 50 U.S.C. § 1881a(h)(1)(A), (B). These provisions are not

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 29 of 32

1 limited, as Plaintiff contends, to “the contents of specific FISA orders, their targets, and details

2 of ongoing investigations,” SAC ¶ 83. Instead, in them, Congress instructs broadly that the

3 “secrecy of the acquisition” must be protected. The most natural reading of this statutory

4 language is that the fact of the acquisition—the existence of the FISC order or directive—must

5 not be disclosed. Indeed, the orders typically issued by the FISC under Title I pursuant to

6 Section 1805(c)(2)(B) expressly require recipients “not to disclose to the targets or to any other

7 person the existence of the order. . . or the fact of any of the activities authorized [in the order].”

8 Of course, the disclosure that a company has received a certain aggregate number of FISC

9 orders, by the plain meaning of the terms, would disclose “the existence” of the orders. Titles III

10 and IV of FISA, which also contain provisions authorizing FISC orders protecting information

11 from disclosure, likewise speak broadly of protecting the “secrecy” of each acquisition—without

12 limitation—and provide for Government control of the security procedures under which

13 information related to each acquisition is maintained. See 50 U.S.C. § 1824(c)(2)(B), (C) (Title

14 III); 50 U.S.C. § 1842(d)(2)(B) (Title IV).

15

Finally, Title V, the last provision of FISA that might be applicable here, imposes

16 nondisclosure obligations directly on recipients of FISC orders issued thereunder. Title V

17 provides: “No person shall disclose to any other person that the [FBI] has sought or obtained

18 tangible things pursuant to an order under [Title V of FISA].” Once again, protection for

19 aggregate data falls within the meaning of the statutory text. A disclosure that a company

20 received a specific number of orders would “disclose . . . that the [FBI] has sought . . . tangible

21 things pursuant to an order under” Title V of FISA as many times as the number of orders

22 disclosed. And, as with the other four FISA provisions discussed above, the nondisclosure

23 requirement is not limited to “the contents of specific FISA orders, their targets, and details of 24 ongoing investigations,” SAC ¶ 83.11 Whether the specific terms of any order have been violated

25 11 Section 603 of USA FREEDOM Act reinforces that Congress understands aggregate
26 data regarding receipt of national security process to be protected from disclosure. In Section

27

603, Congress introduced the reporting bands that outline the permissible bounds of disclosure by explaining that: “A person subject to a nondisclosure requirement accompanying an order or

28 directive under [FISA] or a national security letter may, with respect to such order, directive, or

national security letter, publicly report the following information using one of the following

Twitter, Inc. v. Lynch, et al., Case No. 14-cv-4480

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 30 of 32

1 may entail further examination by the Government and issuing court, depending on what

2 information is disclosed. But Plaintiff’s contention that no other authority would apply to protect

3 the information at issue is meritless on its face.

4

Furthermore, apart from the statutory protections that shield the data in question from

5 disclosure, nothing prevents an Article III court from reinforcing with a court order other

6 protections against disclosure. Cf. In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005)

7 (“Absent restriction, courts have inherent power, subject to the Constitution and federal statutes,

8 to impose secrecy orders incident to matters occurring before them”); In re Grand Jury

9 Proceedings, 17 F. Supp. 3d 1033, 1035-36 (S.D. Cal. 2013). Plaintiff cites no contrary

10 authority; indeed, if there were a rule that prevented courts from issuing such orders, the

11 provisions of FISA that authorize FISC nondisclosure orders all would amount to a nullity.

12 Indeed, there is nothing anomalous about the presence of multiple legal nondisclosure

13 requirements overlapping to protect the same sensitive national security information.

14

For the foregoing reasons, Plaintiff’s challenges to statutory or judicially-imposed

15 nondisclosure obligations, if any, prohibiting the disclosure of classified aggregate data, fail as a 16 matter of law.12

17

structures.” Section 603(a). While Section 603(c) clarifies that the Government may, in its 18 discretion, permit other forms of reporting, the quoted language from Section 603(a) reflects that

19 Congress understood other formats of reporting aggregate data as being prohibited unless the Government took such actions.

20

12 Unconnected with the three Counts asserted in the Complaint, Plaintiff asks the Court,

21

to find “[t]he FISA secrecy provisions are facially unconstitutional under the First Amendment because they do not require nondisclosure orders to contain a defined duration.” See SAC,

22 Prayer for Relief, (A)(v). It is not clear what, precisely, Plaintiff is challenging; if this language relates to the disclosure of aggregate data in the format presented in the draft Transparency
23 Report, then the Court should not reach this constitutional issue because the data is classified as

24

discussed in Section I. If this objection is untethered to the request to disclose aggregate data, then Plaintiff cannot establish that it has standing to raise such a broad challenge; instead, if it

25 has received any process from the FISC (which, if true, would be a classified fact), then Plaintiff

must challenge the duration of obligations imposed by the FISC before that court.

26

But even if Plaintiff could bring this challenge as currently framed, it would be without

27

merit because the Government has long interpreted the FISA nondisclosure obligations as protecting only information that is classified. See, e.g., Notice, In re Mot. for Decl. J. (Jan. 27,

28 2014), submitted as Exh. 2 to Plaintiff’s Compl., ECF No. 1-1 (explaining that because the DNI

had declassified aggregate data reported in a manner consistent with the January 27, 2014

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 31 of 32

1

CONCLUSION

2

The Supreme Court has recognized that “no governmental interest is more compelling

3 than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). The Government has

4 demonstrated, through the Declarations of EAD Steinbach, that disclosure of the information

5 redacted from the draft Transparency Report reasonably could be expected to cause serious

6 damage to the national security, including by providing adversaries with a roadmap of the

7 Government’s surveillance activities and capabilities, and thus is properly classified. See supra

8 18–21. As this Court has recognized, restrictions on the disclosure of classified information by

9 persons subject to secrecy obligations are lawful under the First Amendment. See ECF No. 113

10 at 8. For the foregoing reasons, the Court should grant Defendants’ motion for summary

11 judgment and dismiss the Plaintiff’s Second Amended Complaint.

12 13 Dated: November 22, 2016

Respectfully submitted,

14

BENJAMIN C. MIZER

15

Principal Deputy Assistant Attorney General

16

BRIAN STRETCH

United States Attorney

17

18

ANTHONY J. COPPOLINO Deputy Branch Director

19

/s/ Julia A. Berman

20

ERIC J. SOSKIN

21

JULIA A. BERMAN, Bar No. 241415

22 framework, the Government would “therefore treat such disclosures as no longer prohibited under any legal provision that would otherwise prohibit the disclosure of classified data,
23 including data relating to FISA surveillance”). Classification, in turn, as Plaintiff notes in its

24

Complaint, cannot be indefinite. See SAC ¶ 39 (citing Exec. Order No. 13526, § 2.2(f)); see also Exec. Order 13526, § 1.5(d) (“No information may remain classified indefinitely”). Because

25 “[i]t is well established that courts should resolve ambiguities in statutes in a manner that avoids

substantial constitutional issues,” Mukasey, 549 F.3d at 872, and equally well-established that 26 time limitations may be read into statutes where that is consistent with the legislative purpose,

27

see id. (citing United States v. Thirty–Seven Photographs, 402 U.S. 363, 368–70 (1971)), Plaintiff is mistaken that the lack of express time limitations in the FISA “secrecy provisions”

28 renders those provisions unconstitutional.

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Defendants’ Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 145 Filed 11/22/16 Page 32 of 32

1

Trial Attorneys U.S. Department of Justice

2

Civil Division, Federal Programs Branch

P.O. Box 883

3

Washington, D.C. 20044

4

julia.berman@usdoj.gov

5

Attorneys for Defendants

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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Defendants’ Motion for Summary Judgment

 
 Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 1 of 21

United States District Court Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

TWITTER, INC., 8
Plaintiff, 9
v. 10
JEFFERSON B. SESSIONS, III, ET AL., 11
Defendants. 12

Case No. 14-cv-04480-YGR
ORDER DENYING GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE; GRANTING TWITTER’S MOTION FOR ORDER DIRECTING DEFENDANTS TO EXPEDITE SECURITY CLEARANCE
Re: Dkt. Nos. 124, 145

13 Defendants Jefferson B. Sessions, III,1 the United States Department of Justice, and the
14 Federal Bureau of Investigation (“the Government”) filed a motion for summary judgment on the
15 claims in Plaintiff Twitter, Inc.’s second amended complaint. (Dkt. No. 145.) Twitter filed a
16 motion for an order directing the Government to expedite a security clearance process for lead
17 counsel in this matter to review materials relevant to this litigation. (Dkt. No. 124.)
18 Having carefully considered the papers submitted, the admissible evidence2, and the
19

pleadings in this action, and for the reasons set forth below, the Court DENIES the motion for 20

21

1 Mr. Sessions has been substituted as the Attorney General of the United States by

22 automatic operation of Fed. R. Civ. P. 25(d).

23

2 Twitter seeks judicial notice of documents obtained on the internet, purporting to be

24

transparency reports and annual reports of various companies. Twitter offers them to show that such reports and data are publicly available and accessible to foreign enemies of the United States.

25 “The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be

26 questioned.” See Fed. R. Evid. 201(b)(2). Further, any evidence considered by the Court must be

relevant evidence. Here, the documents neither appear to be relevant to any matter at issue nor do 27 they appear to be from a source the accuracy of which cannot be questioned. The request for

28 judicial notice is therefore DENIED.

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 2 of 21

United States District Court Northern District of California

1 summary judgment WITHOUT PREJUDICE. The Court finds the Government has not met its high

2 burden to overcome the strong presumption of unconstitutionality on the record before the Court.

3 The Government’s restrictions on Twitter’s speech are content-based prior restraints subject to the

4 highest level of scrutiny under the First Amendment. The restrictions are not narrowly tailored to

5 prohibit only speech that would pose a clear and present danger or imminent harm to national

6 security. The Government argues that the limitations imposed on Twitter are necessary because

7 disclosure of data concerning the number and type of national security legal process that it

8 received in a time period would impair national security interests and is properly classified.

9 However, the Government has not presented evidence, beyond a generalized explanation, to

10 demonstrate that disclosure of the information in the Draft Transparency Report would present

11 such a grave and serious threat of damage to national security as to meet the applicable strict

12 scrutiny standard.

13

The Court GRANTS the motion for an order directing the Government to expedite the

14 appropriate national security clearances for lead counsel, Andrew J. Pincus and Lee H. Rubin.

15 I.

BACKGROUND

16

The procedural history of this case is lengthy and is detailed in the Court’s prior orders.

17 (See October 14, 2015 Order Denying Motion To Dismiss As Moot (Dkt. No. 85); May 2, 2016

18 Order Granting In Part and Denying In Part Motion to Dismiss Amended Complaint (Dkt. No.

19 113).) The Court offers an abbreviated summary of the history relevant here.

20

On April 1, 2014, Twitter submitted to the Government a draft transparency report

21 containing information and discussion about the aggregate numbers of national security letters

22 (“NSLs”) and court orders pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”),

23 if any, it received in the second half of 2013. Twitter requested “a determination as to exactly

24 which, if any, parts of its Transparency Report are classified or, in the [government’s] view, may

25 not lawfully be published online.” (Second Amended Complaint, Dkt. No. 114, ¶ 55.) Several

26 months later, the Government notified Twitter that “information contained in the report is

27 classified and cannot be publicly released,” because it did not comply with the government’s

28 approved framework for reporting data about FISA orders and NSLs, as set forth in a letter from 2

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1 then-Deputy Attorney General James M. Cole (“the DAG Letter”). (Id. ¶¶ 49, 57.) The

2 framework set forth in the DAG Letter was abrogated subsequently by the USA FREEDOM Act,

3 which codified and broadened the scope of the reporting bands. However, the essentials of the

4 dispute continue unchanged.

5 II. SUMMARY JUDGMENT STANDARDS

6

Summary judgment is appropriate when there is no genuine dispute as to any material fact

7 and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Any party

8 seeking summary judgment bears the initial burden of identifying those portions of the pleadings

9 and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex

10 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome

11 of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material

12 fact is “genuine” if there is sufficient evidence for the finder of fact to return a verdict for the

13 nonmoving party. Id.

14

If the moving party meets its initial burden, the opposing party must then set out

15 specific facts showing a genuine issue for trial in order to defeat the motion. Anderson, 477

16 U.S. 242, 250; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also

17 Fed. R. Civ. P. 56(c), (e). A court may only consider admissible evidence in ruling on a motion

18 for summary judgment. See Fed.R.Civ.P. 56(c)(2); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d

19 1179, 1181 (9th Cir.1988) (“It is well settled that only admissible evidence may be considered by

20 the trial court in ruling on a motion for summary judgment.”). However, when deciding a

21 summary judgment motion, “the court does not make credibility determinations or weigh

22 conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, the court must view the evidence in

23 the light most favorable to the nonmoving party and draw all justifiable inferences in its favor.

24 Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir.2011).

25

Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for

26 specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer

27 considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

28 discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). The non-moving party 3

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1 should set forth the particular facts it expects to obtain and why it cannot provide those facts at the

2 time for opposition. See Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 524 (9th Cir. 1989) (citing

3 former Rule 56(f)).

4 III. DISCUSSION

5

A. Overview of Issues

6

The Government moves for summary judgment on the grounds that the information

7 Twitter seeks to publish in its Draft Transparency Report is all properly classified information that

8 would harm national security if disclosed, and therefore the First Amendment does not prohibit the

9 Government’s restrictions on Twitter’s publication of the Draft Transparency Report. Twitter

10 contends that the Government’s restrictions violate the First Amendment both as prior restraints

11 on speech and content-based limitations. Twitter asserts that more granular data on the volume of

12 process cannot be considered properly classified information under Executive Order 13526, since

13 the Government offers no specific evidence to demonstrate that the disclosure of this information

14 would pose a threat to national security, let alone one that is serious or exceptionally grave.

15 Twitter further argues that the motion is not ripe for consideration because it is entitled to

16 complete discovery pursuant to Rule 56(d) before the Court makes a determination on summary

17 judgment.

18

As the moving party, the burden is on the Government to show that Twitter’s constitutional

19 challenges have no merit. The Government’s basis for prohibiting disclosure relies on three

20 interrelated arguments: (1) the aggregate data is classified under Executive Order 13526; (2) the

21 USA FREEDOM Act, at 50 U.S.C. section 1874, limits disclosure of aggregate data about the

22 volume national security process to reporting within certain numerical bands; and (3) the

23 underlying FISA statutes permit the FBI to restrict disclosure about the existence of FISA process.

24 While the Government relies primarily on the first argument here, it intertwines the statutory bases

25 as further support for its classification decision.

26

The Government submits an unclassified declaration of Michael B. Steinbach, Executive

27

28 4

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1 Assistant Director of the National Security Branch of the Federal Bureau of Investigation. (Dkt. 2 No. 147-1, Steinbach Decl.)3 Steinbach attests that “[d]isclosure of the more detailed and

3 disaggregated information at issue in Twitter’s report reasonably could be expected to result in

4 damage to the national security, and it pertains to intelligence activities [section l.4(c)]; foreign

5 relations or foreign activities of the United States [section l.4(d)]; and vulnerabilities or

6 capabilities of systems, installations, infrastructures, project, plans, or protection services relating

7 to the national security [ section 1.4(g)].” (Steinbach Decl. at ¶ 29). Steinbach concludes that the

8 information “Twitter seeks to publish—data reflecting its receipt of national security process with

9 a level of specificity that is far more granular than has been declassified by the DNI and allowed

10 by the USA Freedom Act—was properly classified at the time that Twitter’s draft transparency

11 report was received by the FBI in 2014 and continues to be properly classified at this time.” (Id.)

12 The Government contends that Steinbach’s declarations specifically address the proposed

13 disclosure that Twitter seeks to make, rather than simply addressing the classification of all

14 materials generally under the bands prescribed in the USA FREEDOM Act. The Government

15 urges that Steinbach’s determination should be given the “utmost deference” by this Court, given

16 his expertise in national security matters.

17

In opposition, Twitter argues that the Government’s restrictions on its ability to report

18 more granular data regarding national security legal process requests it receives hinder its ability

19 communicate truthful information to users of the online information platform, and potentially chill

20 those users’ speech. Twitter seeks “to dispel . . . users’ [well-documented] fears” about the

21 privacy of the information they share with Twitter by providing more precise (but aggregate) data

22 about “the limited scope of U.S. surveillance on its platform.” (Notice Regarding Classified

23 Document, Dkt. No. 21–1, Exh. 1 Unclassified, Redacted Version of Twitter’s Draft Transparency

24 Report [“Draft Transparency Report”] at 2.) The Government’s restrictions not only prevent

25

26 3 Steinbach also submitted a declaration for the Court’s review in camera. Citations to the
27 Steinbach Declaration in this Order refer only to the unclassified, publicly filed declaration. 28
5

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1 Twitter from conveying this message, but also compel Twitter “to mislead [its] users by reporting

2 overly broad ranges of requests.” Id. Because social media users express concerns about

3 government surveillance, Twitter’s inability to report more detailed information about government

4 legal process seeking information about Twitter’s users could have a chilling effect on users’

5 speech. More broadly, Twitter argues that restricting information about the scope of a government

6 surveillance program will prevent the public from being able to scrutinize the program or hold

7 government officials accountable for their conduct.

8

Whether the restriction here on Twitter’s speech is viewed as a product of the FBI’s

9 classification decision, the underlying FISA statutes permitting the FBI to restrict disclosure about

10 the existence of FISA process, or the FISA public disclosure statute, 50 U.S.C. section 1874, the

11 fact remains that the Government has limited Twitter’s ability to speak on the subject of the

12 number of orders it may have received. For the reasons set forth below, the Court finds that such

13 limitations are subject to strict scrutiny under the First Amendment.

14

B. First Amendment Framework

15

“The First Amendment reflects ‘a profound national commitment to the principle that

16 debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562 U.S.

17 443, 452 (2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 [Pentagon Papers]

18 (1964)). “The right of citizens to inquire, to hear, to speak, and to use information to reach

19 consensus is a precondition to enlightened self-government and a necessary means to protect it.”

20 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010). “[S]peech on public issues

21 occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special

22 protection.” Connick v. Myers, 461 U.S. 138, 145 (1983).

23

At the same time, First Amendment rights are not absolute and do not automatically

24 override all other constitutional values. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570

25 (1976) (“We reaffirm that the guarantees of freedom of expression are not an absolute prohibition

26 under all circumstances, but the barriers to prior restraint remain high and the presumption against

27 its use continues intact.”). Government limitations on speech are subject to varying levels of

28 scrutiny depending upon such factors as substance of the speech and limitations involved. Strict 6

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1 scrutiny is reserved for speech implicating core concerns of the First Amendment. Republican

2 Party of Minn. v. White, 536 U.S. 765, 774–75 (2002). Our Supreme Court has held repeatedly

3 that both prior restraints and content-based restrictions are subject to strict scrutiny.

4

Prior restraints on speech are “the most serious and the least tolerable infringement on First

5 Amendment rights.” Nebraska Press Ass’n, 427 U.S. at 559; Near v. Minnesota ex rel. Olson, 283

6 U.S. 697 (1931) (“chief purpose of the (First Amendment’s) guaranty [is] to prevent previous

7 restraints upon publication”). The term prior restraint is used to describe administrative and

8 judicial orders forbidding certain communications when issued in advance of the time that such

9 communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993)

10 (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid

11 speech activities—are classic examples of prior restraints.”) A system of prior restraints “bear[s] a

12 heavy presumption against its constitutional validity,” and the Government “carries a heavy

13 burden of showing justification for the imposition of such a restraint.” Capital Cities Media, Inc.

14 v. Toole, 463 U.S. 1303, 1305 (1983) (citation omitted). In order to justify a prior restraint, the

15 government must demonstrate that the restraint is justified without reference to the content of the

16 speech, and is narrowly tailored to serve a compelling governmental interest. See Nebraska Press

17 Ass’n, 427 U.S. at 571; Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992);

18 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

19

Similarly, “[c]ontent-based laws—those that target speech based on its communicative

20 content—are presumptively unconstitutional and may be justified only if the government proves

21 that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz.,

22 __ U.S.__, 135 S.Ct. 2218, 2226 (2015). “Government regulation of speech is content based if a

23 law applies to particular speech because of the topic discussed or the idea or message expressed.

24 Id. at 2227 (citing Sorrell v. IMS Health, Inc., 564 U.S. 552, 564 (2011)); Consol. Edison Co. of

25 New York v. Pub. Serv. Comm’n, 447 U.S. 530, 536 (1980) (government regulation “may not be

26 based upon either the content or subject matter of speech.”); Berger v. City of Seattle, 569 F.3d

27 1029, 1051 (9th Cir. 2009) (en banc) (restriction “is content-based if either the underlying purpose

28 of the regulation is to suppress particular ideas or if the regulation, by its very terms, singles out 7

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1 particular content for differential treatment.”). Even if facially content-neutral, restrictions will be

2 considered content-based if they cannot be “justified without reference to the content of the

3 regulated speech,” and must likewise satisfy strict scrutiny. Reed, 1135 S.Ct. at 2227, quoting

4 Ward, 491 U.S. at 791; see also Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686

5 F.3d 965, 997, 1001 (9th Cir. 2012) (“Al Haramain v. Treasury”) (applying strict scrutiny and

6 finding content-based prior restraints unconstitutional despite government’s stated justification of

7 preventing terrorism); Doe v. Gonzales, 386 F. Supp. 2d 66, 75 (D. Conn. 2005) (finding FISA

8 restriction on ability to disclose receipt of NSL was content-based and subject to strict scrutiny

9 because disclosure could be a means of expressing a particular view about the reach of federal

10 investigative powers).

11

In addition to substantive concerns warranting heightened scrutiny, courts also consider

12 whether the First Amendment requires procedural safeguards to minimize the extent of any

13 government restrictions on speech. John Doe, Inc. v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008),

14 as modified (Mar. 26, 2009) [“Doe v. Mukasey”] (“Where expression is conditioned on

15 governmental permission, such as a licensing system for movies, the First Amendment generally

16 requires procedural protections to guard against impermissible censorship.”) (citing Freedman v.

17 State of Md., 380 U.S. 51, 58 (1965)). Such procedural protections include: (1) restraints prior to

18 judicial review may be imposed “only for a specified brief period during which the status quo

19 must be maintained;” (2) availability of “expeditious judicial review;” and (3) the government

20 entity seeking to restrain the speech bears the burden seeking judicial review and the burden of

21 proof in court. Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002) (citing Freedman, 380 U.S.

22 58-60). Courts considering whether content-based governmental restrictions or prior restraints on

23 speech will pass constitutional muster take into account both the procedural safeguards and

24 substantive strict scrutiny requirements. See Microsoft Corp. v. United States Dep’t of Justice,

25 No. C16-0538JLR, 2017 WL 530353, at *11 (W.D. Wash. Feb. 8, 2017) (“even if the procedural

26 safeguards outlined in Freedman are met, the Government must show that the statute in question

27 meets strict scrutiny”); In re Nat’l Sec. Letter, 930 F.Supp.2d 1064, 1071 (N.D. Cal. 2013) [“In re

28 NSL”] (government must “meet the heightened justifications for sustaining prior-restraints” in 8

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1 Freedman and “must be narrowly tailored to serve a compelling government interest”); Admiral

2 Theatre v. City of Chi., 832 F.Supp. 1195, 1203 (N.D. Ill. 1993) (noting that even if procedural

3 safeguards are met “the system is still subject to ‘least restrictive means’ scrutiny to determine its

4 constitutionality”).

5

C. Constitutional Analysis of Restrictions on Twitter’s Transparency Report

6

1. Application of Strict Scrutiny Standard

7

The Government argues its decision to preclude Twitter from disclosing and publishing in

8 its Draft Transparency Report information the Government deemed classified should be subject to

9 no greater First Amendment scrutiny than simply ascertaining whether the classification

10 determination was made “with reasonable specificity, demonstrat[ing] a logical connection

11 between the detailed information [at issue] and the reasons for classification.” Shaffer v. D.I.A.,

12 102 F. Supp. 3d 1, 11 (D.D.C. 2015) (citing McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir.

13 1983)); see Stillman v. C.I.A., 319 F.3d 546, 549 (D.C. Cir. 2003). The Government contends that

14 the Court should not “second guess” its classification determinations so long as it has provided a

15 reasonably specific explanation of the logical connection between the information classified and

16 its reasons for doing so, citing Shaffer, 102 F. Supp. 3d at 11, and Al-Haramain Islamic Found.,

17 Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (“Al-Haramain v. Bush”).4 Further, the

18

19

4 Executive Order 13526 stated four conditions for classifying information:

(1) the information must be classified by an “original classification authority”;

20

(2) the information must be “owned by, produced by or for, or [be] under the control

21

of” the Government;

(3) the information must fall within one of the authorized classification categories listed

22

in section 1.4 of the Executive Order; and

(4) the original classification authority must “determine[ ] that the unauthorized

23

disclosure of the information reasonably could be expected to result in damage to the

24

national security” and must be “able to identify or describe the damage.” (Exec. Order 13526, § 1.1.) For classification at the “Secret” and “Top Secret” levels, the

25 classifying entity must expect “serious” and “exceptionally grave” damage, respectively. (Id. § 1.2.) In addition to the categories listed in Executive Order 13526, the Federal Bureau of

26 Investigation National Security Information Classification Guide (“NSICG”) provides guidance

concerning the classification of national security information, advising that information should be 27 classified as “Secret” if it pertains to “investigative methods or techniques used in

28

counterterrorism or national security investigations, including the use of national security legal (cont’d . . . )

9

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1 Government argues that the judgment of Congress, as reflected in the USA FREEDOM Act’s

2 adoption of the disclosure band framework espoused by the Department of Justice, provides

3 further reason to give deference to the Executive’s determination that the more granular

4 information cannot be disclosed without incurring unacceptable risk to national security. The

5 Government’s position, however, ignores the important First Amendment safeguards that would

6 be imperiled by such extreme deference to the Executive’s classification decisions.

7

The Court previously determined that the First Amendment does not allow individuals

8 subject to secrecy obligations to disclose classified national security information. However, the

9 Court does not agree with the Government’s position that simply determining information meets

10 the requirements for classification under Executive Order 13526 ends the Constitutional analysis.

11 That the information is classified is not, in itself, a sufficient basis for the Government’s

12 prohibition on its disclosure in the absence of the sorts of secrecy obligations on government

13 employees and contractors present in Snepp, Wilson, and Stillman. See Stillman, 319 F.3d at 548

14 (citing longstanding principles of judicial restraint to avoid reaching constitutional questions

15 where it is unnecessary, court determined propriety of classification decision first because proper

16 restrictions on employee meant he had not First Amendment right to publish information); cf.

17 Snepp v. United States, 444 U.S. 507 (1980) (former CIA employee sought prepublication review

18 of confidential information in book draft); Wilson v. C.I.A., 586 F.3d 171 (2d Cir. 2009) (CIA

19 employee brought action against her employer).

20

The First Amendment requires strict scrutiny of content-based restrictions and prior

21 restraints, regardless of the Government’s basis for nondisclosure. Even in the context of

22

23 ( . . . cont’d)

24

process, where disclosure of that method or technique would, if made public, reduce the effectiveness of that technique.” (Id.) (Steinbach Decl. ¶ 27 n.10.)

25

Steinbach indicates that specific aggregate data concerning NSLs and FISA orders reported

in Department of Justice annual reports to Congress is classified as “Secret,” and that a 2013 order

26 containing aggregate numbers of NSLs and FISA orders by type, issued in 2013, was initially

classified as Top Secret, but declassified by the Director of National Intelligence on June 23, 2014. 27 (Steinbach Decl. ¶¶ 15 n. 7, 17.) He does not indicate any aggregate data is classified as “Top

28 Secret.”

10

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1 classified information, as the Supreme Court held in Pentagon Papers, “[a]ny system of prior

2 restraints of expression comes to this Court bearing a heavy presumption against its constitutional

3 validity and the Government thus carries a heavy burden of showing justification for the

4 imposition of such a restraint.” Pentagon Papers, 403 U.S. at 714 (internal citations omitted); see

5 also Nebraska Press Ass’n, 427 U.S. at 591 (Brennan, J., concurring) (while Near and Pentagon

6 Papers cases contemplated that there might be an exception to the near-complete ban on prior

7 restraints of speech due to countervailing interests such as national security, such an exception

8 “has only been adverted to in dictum and has never served as the basis for [the Supreme Court]

9 actually upholding a prior restraint against the publication of constitutionally protected

10 materials”); In re Washington Post Co., 807 F.2d 383, 391–92 (4th Cir. 1986) (“[T]roubled as we

11 are by the risk that disclosure of classified information could endanger the lives of both Americans

12 and their foreign informants, we are equally troubled by the notion that the judiciary should

13 abdicate its decisionmaking responsibility to the executive branch whenever national security

14 concerns are present.”)

15

In Pentagon Papers, while certain justices acknowledged their concern that disclosure of

16 the classified information at issue might be harmful to the national interest, the Supreme Court

17 nevertheless held that the Government had not met its burden under the First Amendment to 18 justify enjoining publication of that classified information. Pentagon Papers, 403 U.S. at 714.5

19 As Justice Stewart stated in his concurrence to the per curiam opinion, the government had not

20 shown that publication would result in “direct, immediate, and irreparable damage to our Nation or

21 its people” so as to support an injunction. Id. at 729 (Stewart, J. concurring). “[T]he First

22 Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or

23 conjecture that untoward consequences may result.” Id. at 725–26 (Brennan, J., concurring). Such

24

25 5 At the time of publication in the Pentagon Papers case, the United States was still
26 engaged in a war in Vietnam, and the information at issue contained material about the war that had been classified as “Top Secret” and “Secret.” See United States v. N.Y. Times Co., 328 F.
27 Supp. 324, 326 (S.D.N.Y. 1971).
28
11

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1 restraints are only permitted in an extremely narrow class of cases such as in times of war to

2 prevent disclosure of such information as troop locations and movements. Id. In the words of

3 Justice Black, “[t]he guarding of military and diplomatic secrets at the expense of informed

4 representative government provides no real security for our Republic.” Id. at 719. Thus, while

5 observing that the Executive branch is charged with great power in the areas of national defense

6 and international relations, the Supreme Court nevertheless found that it could not obstruct the

7 flow of information to its citizenry based solely on a statement that the matters were classified. Id. 8 at 727-28.6

9

The Court finds the most closely analogous cases have applied a high degree of scrutiny in

10 the context of constitutional challenges to restrictions on disclosure of information with national

11 security implications, though stopping short of unequivocally adopting the Pentagon Papers

12 standard. In Doe v. Mukasey, the plaintiff was an internet service provider upon which the FBI

13 had served an NSL seeking certain information about electronic communication records in

14 furtherance of an investigation, pursuant to 18 U.S.C. section 2709. Doe v. Mukasey, 549 F.3d at

15 864. Section 2709 permits the FBI to seek records relevant to an authorized investigation to

16 protect against international terrorism or clandestine intelligence activities. If the Director of the

17 FBI or his designee certifies that disclosure of the request may result in “a danger to the national

18 security of the United States; interference with a criminal, counterterrorism, or counterintelligence

19 investigation; interference with diplomatic relations; or danger to the life or physical safety of any

20 person,” section 2709(c) prohibits the recipient of an NSL from disclosing that such a request has

21

22

6 As stated by Justice Stewart, to simply rely on a classification decision to justify a prior 23 restraint would risk overuse of the classification authority:

24

For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be

25

manipulated by those intent on self-protection or self-promotion. I should suppose,

in short, that the hallmark of a truly effective internal security system would be the

26

maximum possible disclosure, recognizing that secrecy can best be preserved only

when credibility is truly maintained. 27 Pentagon Papers, 403 U.S. at 729. (Stewart, J., concurring).

28

12

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1 been received. The Second Circuit, in considering the appropriate level of scrutiny to apply to a

2 constitutional challenge to section 2709(c)’s nondisclosure requirement, found that “[a]lthough the

3 nondisclosure requirement is in some sense a prior restraint . . . it is not a typical example of such

4 a restriction for it is not a restraint imposed on those who customarily wish to exercise rights of

5 free expression, such as speakers in public fora, distributors of literature, or exhibitors of movies.”

6 Id. at 876. The court held that the nondisclosure requirement in the statute was “not a typical prior

7 restraint or a typical content-based restriction warranting the most rigorous First Amendment

8 scrutiny,” but at the same time was not a context which warranted “a significantly diminished

9 standard of review.” Id. at 877.

10

Though the context was narrow and limited to a single nondisclosure order, the corporate

11 plaintiff nonetheless had been restrained from public expression of information relevant to and

12 critical of a government activity, a core concern of the First Amendment. Id. at 877–78, citing

13 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (“There is no question that speech

14 critical of the exercise of the State’s power lies at the very center of the First Amendment.”);

15 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 838 (1978) (“Whatever differences may

16 exist about interpretations of the First Amendment, there is practically universal agreement that a

17 major purpose of that Amendment was to protect the free discussion of governmental affairs.”)

18 (internal citation and quotation marks omitted). While the panel could not agree on whether to

19 apply traditional strict scrutiny or something slightly less than that, it ultimately determined that

20 the distinction would not have changed the outcome. Doe v. Mukasey, 549 F.3d at 878.

21 Moreover, the Government conceded strict scrutiny was the appropriate standard. Id.

22

In another closely aligned case, In re NSL, the district court stated that it was adopting the

23 analysis in Doe v. Mukasey, but nevertheless hesitated to apply the “extraordinarily rigorous

24 Pentagon Papers test.” In re NSL, 930 F. Supp. 2d at 1071. There, an electronic communication

25 service provider petitioned the court to set aside an NSL received from the FBI under section

26 2709, as well as the associated nondisclosure requirement, seeking subscriber information. Id. at

27 1066. The court found that “while section 2709(c) may not be a ‘classic prior restraint’ or a

28 ‘typical’ content-based restriction on speech, the nondisclosure provision clearly restrains speech 13

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1 of a particular content—significantly, speech about government conduct.” Id. at 1071. The court

2 determined that the Pentagon Papers standard would be “too exacting” given the “text and

3 function of the NSL statute.” Id. However, the court found that the government was required to

4 offer “heightened justifications for sustaining prior restraints on speech,” as required by Freeman,

5 and to demonstrate that its restrictions were “narrowly tailored to serve a compelling

6 governmental interest.” Id. at 1071; see also Microsoft v. DOJ, 2017 WL 530353, at *10-12

7 (W.D. Wash. Feb. 8, 2017) (plaintiff stated a constitutional challenge to statutory provisions

8 indefinitely restraining communication about the existence of electronic surveillance orders

9 whether strict scrutiny or some standard short of that, applied).

10

Both In re NSL and Doe v. Mukasey counsel application of a heightened level of scrutiny

11 in the case at bar. At the same time, they are distinguishable from the present case in ways that

12 suggest the Supreme Court’s usual strict scrutiny standard, rather than some modified version,

13 should apply here. In re NSL and Doe v. Mukasey concerned challenges to nondisclosure

14 provisions in individual orders, implicating different concerns from those attending the

15 dissemination of abstracted data about the volume of requests at issue here. The relative balance

16 of jeopardy to an investigation, or to national security generally, as compared to the public’s need

17 for information about the functioning of its government weighs very differently when the

18 disclosure concerns the details of a single, particular FBI request as compared to data about the

19 mere quantity of requests without touching upon the specifics of any of them.

20

Further, both In re NSL and Doe v. Mukasey were focused on the circumstance where the

21 recipient of the NSL or other legal process was a telephone or internet service provider, not a

22 social media outlet that functions as an information broadcast medium more akin to a newspaper

23 or television network. The challenges in those cases arose from nondisclosure restrictions on

24 entities which arguably do not occupy the same sort of communicative role as Twitter does. In

25 some ways, Twitter acts as the modern, electronic equivalent of a public square. The court in Doe

26 v. Mukasey determined it should apply something other than strict scrutiny because, “[a]lthough

27 the nondisclosure requirement is in some sense a prior restraint . . . it is not a typical example of

28 such a restriction for it is not a restraint imposed on those who customarily wish to exercise rights 14

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 15 of 21

United States District Court Northern District of California

1 of free expression, such as speakers in public fora, distributors of literature, or exhibitors of

2 movies.” Doe v. Mukasey, 549 F.3d at 876 (analogizing to Seattle Times Co. v. Rhinehart, 467

3 U.S. 20, 33 (1984), where prohibitions on disclosure of pretrial discovery was held not to be a

4 “class prior restraint” subject to strict scrutiny). Here, restrictions on Twitter’s ability to disclose

5 information relevant to its own functioning as a social media outlet appear much more like the

6 kind of restraints on “speakers in public fora, distributors of literature, or exhibitors of movies”

7 that would not permit an exception to strict scrutiny. Doe v. Mukasey, 549 F.3d at 876; see also

8 Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013), as amended (Sept. 23, 2013) (“liking a

9 political candidate’s campaign page [on Facebook] communicates the user’s approval of the

10 candidate and . . . is the Internet equivalent of displaying a political sign in one’s front yard,”

11 implicating First Amendment protections).

12

Thus, the Court finds the Government’s decision to restrict the information in Twitter’s

13 Draft Transparency Report is based upon its content and a prior restraint of publication.

14 Accordingly, Supreme Court authority requires that such restrictions be subject to strict scrutiny.

15 See, e.g., Pentagon Papers, 403 U.S. at 714 (prior restraints bear “a heavy presumption against

16 [their] constitutional validity” and are subject to strict scrutiny, regardless of assertions of national

17 security); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Nebraska Press

18 Assn., 427 U.S. at 589 (prior restraints are “the essence of censorship” and accorded greater First

19 Amendment protection than subsequent punishments for particular speech); Forsyth County, 505

20 U.S. at 130 (permitting regulation on free speech cannot be based upon content and must be

21 narrowly tailored with objective and definite standards for abridgment); Reed, 135 S. Ct. at 2227

22 (content-based regulations subject to strict scrutiny).

23

Even where courts have hesitated to apply the highest level of scrutiny due to competing

24 secrecy and national security concerns, they have nevertheless held that heightened or rigorous

25 scrutiny of such restrictions on speech is required. Doe v. Mukasey, 549 F.3d at 876; Holder v.

26 Humanitarian Law Project, 561 U.S. 1, 27–28 (2010) (applying “rigorous scrutiny,” and rejecting

27 “intermediate scrutiny,” in context of statute that criminalized knowing provision of material

28 support to terrorist organizations standard, and distinguishing facts from a prior restraint 15

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 16 of 21

United States District Court Northern District of California

1 restriction on “pure political speech” which would be even less likely to survive review); see also

2 Matter of Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F.Supp.3d 1091, 1091 (N.D.

3 Cal. 2015) (striking down gag order under Stored Communications Act because “an indefinite

4 order would amount to an undue prior restraint of Yahoo!’s First Amendment right to inform the

5 public of its role in searching and seizing its information.”); In re Sealing & Non-Disclosure of

6 Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 882 (S.D. Tex. 2008) (nondisclosure requirements 7 in connection with FBI surveillance orders were subject to “rigorous scrutiny”)7; cf. Defense

8 Distributed v. United States Dep’t of State, 838 F.3d 451, 466 (5th Cir. 2016) (holding, under

9 strict scrutiny analysis, that regulation on export of technical data related to prohibited munitions

10 via publication on the internet of instructions for 3-D printing of firearms violated plaintiff’s First

11 Amendment as an unconstitutional prior restraint and content-based regulation, despite State

12 Department’s national security concerns). Though it has been classified by the FBI as information

13 that “reasonably could be expected to result in damage to the national security,” that fact alone

14 does not exempt the restriction from rigorous scrutiny. Simply asserting that information is

15 classified under the Executive Order does not meet the Government’s burden to justify the

16 disclosure in the face of such rigorous scrutiny. See Pentagon Papers, 403 U.S. at 714; see also

17 Al-Haramain v. Bush, 507 F.3d at 1203 (“[s]imply saying ‘military secret,’ ‘national security,’ . . .

18 ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient” 19 to justify a content-based restraint on speech)8.

20

21

7 As the district court in In re Sealing aptly noted, disclosure of the existence and numbers

of surveillance orders is important to an informed public since, “[c]umulatively considered, these

22 secret orders, issued by the thousands year after year by court after court around the country, may

conceal from the public the actual degree of government intrusion that current legislation

23 authorizes.” In re Sealing, 562 F. Supp. 2d at 886. “It may very well be that, given full disclosure

24

of the frequency and extent of these orders, the people and their elected representatives would heartily approve without a second thought. But then again, they might not.” Id.

25

8 The Ninth Circuit’s decision in Al-Haramain v. Bush, although not a constitutional

26 challenge, is instructive. The Ninth Circuit reached its conclusion there only after “spen[ding]

considerable time examining the government’s declarations (both publicly filed and those filed 27 under seal),” and finding that the government’s assertions were “exceptionally well documented.”

28

Id. at 1203 (emphasis added). While the court “acknowledge[d]” the need for some “defer[ence] (cont’d . . . )

16

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 17 of 21

United States District Court Northern District of California

1

Here, the declarations of Steinbach, both in camera and public, fail to provide sufficient

2 details indicating that the decision to classify the information in the Draft Transparency Report

3 was based on anything more specific than the reporting bands in section 1874 and the FBI’s

4 position that more granular information “could be expected to harm national security.” The

5 declarations do not provide an indication of grave or imminent harm arising from the disclosures

6 in the Draft Transparency Report. Rather, the concerns raised to relate to the overall concern from

7 one or more of any electronic communication service regardless of the specific provider or

8 circumstance. Merely declaring a view that more granular reporting would create an unacceptable

9 risk does not make it so, especially in light of the Government’s acknowledgement of the strong

10 public interest in the information.

11

The Government has not sufficiently explained how a restriction on reporting, beyond the

12 bands in section 1874, could be characterized as narrowly tailored to prevent a national security

13 risk of sufficient gravity to justify the restraint, either in general or with respect to Twitter

14 specifically. Steinbach does not indicate that the classification decision reflected any narrow

15 tailoring of the decision to take into consideration, for instance, the nature of the provider, the

16 volume of any requests involved or the number of users on the platform. These considerations are

17 significant, since Twitter, by recent estimation, had users numbering in the hundreds of millions.

18 Despite it being over three years since the decision, Steinbach stands by the continued 19 classification of the information therein. (Steinbach Decl. at ¶ 29.)9 Rather, the declaration

20

21 ( . . . cont’d)
to the Executive on matters of foreign policy and national security,” it nonetheless insisted that the 22 Government produce “sufficient detail” to permit “meaningful examination” of its state secrets

23 privilege claim. Id. at 1203.

24

9 The Government concedes that it previously classified its own report summarizing the

aggregate number of NSLs and FISA orders issued in 2013 as “Top Secret,” reflecting an

25 assessment that public disclosure was “expected to cause exceptionally grave damage to the national security.” (Steinbach Decl. ¶ 17.) That report was declassified on June 23, 2014—within
26 six months—and is now available to public. (Id.) The Government does not indicate that

“exceptionally grave damage” to national security resulted from disclosure of that report or other 27 subsequently declassified material.

28

17

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United States District Court Northern District of California

1 largely relies on a generic, and seemingly boilerplate, description of the mosaic theory and a broad

2 brush concern that the information at issue will make more difficult the complications associated

3 with intelligence gathering in the internet age. Cf. Detroit Free Press v. Ashcroft, 303 F.3d 681,

4 709–10 (6th Cir. 2002) (seemingly unlimited logic of mosaic theory would permit the government

5 to “operate in virtual secrecy in all matters dealing, even remotely, with ‘national security,’

6 resulting in a wholesale suspension of First Amendment rights.”) Without some more specific

7 articulation of the inference the Government believes can be drawn from the information Twitter

8 itself seeks to publish, even years later, the Court cannot find that the Government has met the

9 high burden to overcome a presumption that its restrictions are unconstitutional.

10

Moreover, the Supreme Court has held that restrictions of this type require procedural

11 safeguards to ensure that they are imposed for a limited time and subject to review at the earliest

12 juncture. Freedman, 380 U.S. at 58-60. Neither the Government’s classification decision nor the

13 disclosure reporting statute provide such safeguards, nor do the FISA nondisclosure provisions at

14 issue provide for review that would encompass just the aggregate volume data. Indeed, the ban on

15 disclosure of this aggregate data, relying as it does on section 1874, does not appear to have a limit

16 to the duration of nondisclosure, only a narrowing of the disclosure bands after one year. 50

17 U.S.C. § 1874(a)(4). Despite section 1874(c)’s grant of discretion to permit greater detail in

18 reporting, the statute offers no procedure to petition for such exercise of discretion. It does not

19 provide a mechanism for review of any Government decisions under that exception, or

20 classification decisions in connection with such disclosures generally. Further, as noted it does

21 not distinguish in any way between large and small providers, the nature of the provider itself, and

22 the levels of information they may report.

23

In short, the Government’s restrictions here are not the product of an individualized

24 inquiry or narrow tailoring. They impose a prior restraint on Twitter’s speech, not based on an

25 actual finding that permitting the speech would seriously damage national security, but because

26 Twitter’s proposed disclosure was more precise than the permissive band structure in the USA

27 FREEDOM Act and its predecessor DAG Letter. Finally, they do not include any procedural

28 safeguards to ensure that the decision is one that comports with the appropriate high level of 18

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 19 of 21

United States District Court Northern District of California

1 scrutiny warranted by such prior restraints.

2

2. Government’s Authorities Espousing Deferential Review Are Not

3

Applicable

4

The Government relies on Stillman, Wilson, and Shaffer, in which employees or

5 contractors of the Government were prohibited from publishing classified information. These

6 cases do not persuade. As the Supreme Court has held, a government employee “voluntarily

7 assume[s] a duty of confidentiality, governmental restrictions on disclosure are not subject to the

8 same stringent standards that would apply to efforts to impose restrictions on unwilling members

9 of the public.” United States v. Aguilar, 515 U.S. 593, 606 (1995); see United States v. Nat’l

10 Treasury Employees Union, 513 U.S. 454, 465-66 (1995) (“Congress may impose restraints on the

11 job-related speech of public employees that would be plainly unconstitutional if applied to the

12 public at large.”). Stillman concerned restrictions on a government employee, and the court there

13 specifically held that “[o]nce a government employee signs an agreement not to disclose

14 information properly classified pursuant to executive order, that employee ‘simply has no first

15 amendment right to publish’ such information. Stillman 319 F.3d at 548, citing Snepp, 444 U.S. at

16 510 n. 3 (“When Snepp accepted employment with the CIA [Central Intelligence Agency], he

17 voluntarily signed the agreement that expressly obligated him to submit any proposed publication

18 for prior review”). Stillman held that the CIA, as the employer had the power to “impos[e]

19 reasonable restrictions on employee activities that in other contexts might be protected by the First

20 Amendment.” Id. Similarly, the court in Wilson very specifically stated that the “CIA’s

21 requirement that current and former employees obtain Agency clearance before disseminating any

22 material related to their employment is not, however, a ‘system of prior restraints’ in the classic

23 sense.” Wilson, 586 F.3d at 183-84 (citing McGehee, 718 F.2d at 1147-48); accord Doe v.

24 Mukasey, 549 F.3d at 871, 876 n. 12, 877 (distinguishing between former CIA employees and

25 entities that “had no interaction with the Government until the Government imposed its

26 nondisclosure requirement upon [them]”). The courts in these cases subject the Government

27 agency’s censorship to a minimal and deferential review: “if the Agency censors a manuscript

28 because it contains classified information, the author is entitled to judicial review of that decision

19

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 20 of 21

United States District Court Northern District of California

1 to ensure that the information in question is, in fact, properly classified under the standards set

2 forth in the applicable executive order,” not more. Wilson, 586 F.3d at 185-86; see also Shaffer,

3 102 F.Supp.3d at 14-15 (conducting review of classification decision precluding former military

4 officer’s request to publish information in his memoir under Stillman). Here, the caselaw offers

5 no basis to treat restraints on speech by Twitter the same as “reasonable restrictions on employee

6 activities,” worthy of less than the full panoply of rights under the First Amendment.

7

3. Government’s efforts to distinguish Pentagon Papers fail

8

The Government seeks a lower level of scrutiny contending that Pentagon Papers is

9 distinguishable because the New York Times and Washington Post had obtained the classified

10 information at issue through an apparent leak of information while here the information at issue

11 arises from Twitter’s “participation” in judicial proceedings. Thus, the Government argues that,

12 like a party in discovery or a grand jury witness, Twitter can be restricted from disclosing

13 information.

14

The Government’s analogies are not particularly apt. Restrictions on disclosure of grand

15 jury testimony have only been upheld when they were limited in duration, allowed for broad

16 judicial review, and did not preclude an individual from disclosing information known outside of

17 their direct participation in the proceedings. See Butterworth v Smith, 494 U.S. 624, 632 (1990).

18 Further, the justification for limitations on disclosure of information learned in pre-trial civil

19 litigation yields when the information bears on public proceedings or concerns. Cf. Seattle Times,

20 467 U.S. at 33 (distinguishing restrictions on pretrial discovery disclosure from information

21 admitted into evidence).

22

The Government also distinguishes Pentagon Papers on the ground that it concerned an

23 injunction against publication rather than a statutory limitation on publication or a Court-ordered

24 limitation imposed pursuant to a statute permitting the Executive to request nondisclosure. These

25 distinctions lack substance. Whether a Government restriction is imposed as a flat-out injunction

26 or a nondisclosure order by a court, it still constitutes a prior restraint based upon the content of

27 the message. Similarly, regardless of whether the Executive’s decision to limit the scope of the

28 disclosure arises out of a statutory framework enacted by Congress or a request made to the Court, 20

Case 4:14-cv-04480-YGR Document 172 Filed 07/06/17 Page 21 of 21

United States District Court Northern District of California

1 the Executive’s exercise of discretion results in the same prohibition on speech.

2

The Government offers no evidence that Congress’s decision to adopt the disclosure

3 framework, first applied in the DAG letter, was based upon a determination that disclosure of any

4 more granular information would be, in all cases, a clear and present danger or a serious and

5 imminent threat to a compelling government interest such that less restrictive, more narrowly

6 tailored means to protect that interest did not exist. See generally Nebraska Press Ass’n, 427 U.S.

7 at 565; In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at 882.

8 Thus, while evidence may exist, the Government has not yet made a sufficient showing.

9 IV. CONCLUSION

10

The motion for summary judgment is DENIED WITHOUT PREJUDICE to a renewed motion

11 upon a more fulsome record. Twitter has sought a security clearance to be permitted to review any

12 in camera filing by the Government.

13

The Government is ORDERED to move forward on granting Twitter’s lead counsel,

14 Andrew J. Pincus and Lee H. Rubin, security clearances that would permit review of relevant

15 classified materials in this matter.

16

IT IS SO ORDERED.

17

This terminates Docket Nos. 124 and 145.

18 Dated: July 6, 2017

19

______________________________________

20

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28 21

 
 Case 4:14-cv-04480-YGR Document 301 Filed 06/21/19 Page 1 of 2

United States District Court Northern District of California

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

TWITTER, INC.,

4

Plaintiff,

5

v.

6

WILLIAM P. BARR, ET AL.,

7

Defendants.

Case No. 14-cv-04480-YGR ORDER TO SHOW CAUSE WHY THIS COURT SHOULD NOT RECONSIDER ITS ORDER DENYING THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

8

9

TO ALL PARTIES HEREIN AND THEIR COUNSEL:

10

YOU ARE HEREBY ORDERED TO SHOW CAUSE why this Court should not reconsider its

11 prior Order Denying Government’s Motion for Summary Judgment Without Prejudice (Dkt. No.

12 172), issued July 6, 2017, in light of new evidence submitted to the Court in camera. Specifically,

13 the Court is inclined to reconsider the decision based upon information provided in the classified

14 declaration of Michael C. McGarrity, Acting Executive Assistant Director of the National Security

15 Branch of the Federal Bureau of Investigation, submitted in camera for the Court’s review. (See

16 Dkt. No. 282, Notice of Lodging of Classified Declaration of Michael C. McGarrity for Ex Parte

17 In Camera Review.)

18

The Court notes, by way of background, that the Government’s motion for summary

19 judgment (Dkt. No. 145) was based upon the declarations of Michael Steinbach, Executive

20 Assistant Director of the National Security Branch of the Federal Bureau of Investigation. (See

21 Notice of Lodging of Classified Declaration of Michael Steinbach for In Camera, Ex Parte

22 Review, Dkt. No. 144.) The Court denied the Government’s motion without prejudice, finding

23 under the applicable constitutional standards that the Steinbach declarations were inadequate to

24 meet the Government’s burden to overcome the strong presumption of unconstitutionality of its

25 content-based prior restrictions on Twitter’s speech. (Dkt. No. 172 at 17-18.) The Court gave the

26 Government leave to submit additional evidence to support its restrictions, and the Government

27 declined to provide additional evidence at that time or thereafter. (See, e.g., Dkt. No. 182,

28 Transcript of Case Management Conference, at 4:3-23.)

Case 4:14-cv-04480-YGR Document 301 Filed 06/21/19 Page 2 of 2

United States District Court Northern District of California

1

Following a formal request by Twitter (Dkt. No. 250), and an Order to Show Cause

2 (“OSC”) concerning disclosure of the classified Steinbach Declaration to Twitter’s counsel (Dkt.

3 No. 261), the Government filed a response to the OSC including a motion to dismiss the action

4 based on the state secrets privilege. (Dkt. No. 281.) In connection with that response, the

5 Government submitted, for the first time, an in camera classified declaration of Michael C.

6 McGarrity, Acting Executive Assistant Director of the National Security Branch of the Federal

7 Bureau of Investigation. (See Dkt. No. 282, Notice of Lodging of Classified Declaration of

8 Michael C. McGarrity for Ex Parte In Camera Review.) Drafted to support the Government’s

9 assertion of the state secrets privilege, the declaration provides an explanation of the

10 Government’s basis for restricting the information that can be published in the Draft Transparency

11 Report, and the grave and imminent harm that could reasonably be expected to arise from its

12 disclosure, in far greater detail than the Government provided previously.

13

In light of its review of the classified McGarrity Declaration, the Court is inclined to

14 reconsider its prior order denying summary judgment. The Court is inclined to find that classified

15 McGarrity Declaration meets the Government’s burden under strict scrutiny to justify

16 classification and restrict disclosure of information in the Draft Transparency Report, based upon a

17 reasonable expectation that its disclosure would pose grave or imminent harm to national security,

18 and that no more narrow tailoring of the restrictions can be made. Further, the Court is inclined to

19 conclude that the classified McGarrity Declaration cannot be disclosed to counsel for Twitter

20 based upon the national security concerns it raises.

21

The parties shall file their responses to this Order to Show Cause no later than July 26,

22 2019. The Court will entertain a later deadline if the parties so stipulate. Should the Court

23 determine a hearing is necessary, the parties will be provided further notice of the date and time.

24

IT IS SO ORDERED.

25 Dated: June 21, 2019

______________________________________

26

YVONNE GONZALEZ ROGERS

27

UNITED STATES DISTRICT JUDGE

28

2

 
 Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 1 of 31

1 JOSEPH H. HUNT

2

Assistant Attorney General DAVID L. ANDERSON

3

United States Attorney ANTHONY J. COPPOLINO

4 Deputy Branch Director

5

JULIA A. HEIMAN Senior Counsel

6 CHRISTOPHER HEALY Trial Attorney

7 United States Department of Justice

8 Civil Division, Federal Programs Branch

9 P.O. Box 883 Washington, D.C. 20044

10 Telephone: (202) 616-8480

11

Facsimile: (202) 616-8470 Email: julia.heiman@usdoj.gov

12 Attorneys for Defendants
13 IN THE UNITED STATES DISTRICT COURT
14 FOR THE NORTHERN DISTRICT OF CALIFORNIA
15 __________________________________________

16 TWITTER, INC.,

)

)

Case No. 14-cv-4480-YGR

17

)

Plaintiff,

)

18

)

19

v.

) )

20 WILLIAM P. BARR, Attorney

)

21 General of the United States, et al.,

) )

22

Defendants.

)

)

DEFENDANTS’ RENEWED

23

)

MOTION FOR

24

)

SUMMARY JUDGMENT

)

25

)

No Hearing Scheduled

)

26

)

Courtroom 1, Fourth Floor

27

) __________________________________________)

Hon. Yvonne Gonzalez Rogers

28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 2 of 31

1

NOTICE OF MOTION

2

PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 56,

3 Defendants seek dismissal of the Plaintiff’s Second Amended Complaint for the reasons set forth

4 in Defendants’ accompanying Memorandum of Points and Authorities.

5

6 Dated: September 27, 2019 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
DAVID L. ANDERSON United States Attorney
ANTHONY J. COPPOLINO Deputy Branch Director
/s/ Julia A. Heiman JULIA A. HEIMAN, Bar No. 241415 Senior Counsel CHRISTOPHER HEALY Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 julia.heiman@usdoj.gov Attorneys for Defendants

21

22

23

24

25

26

27

28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 3 of 31

1

TABLE OF CONTENTS

2 INTRODUCTION .......................................................................................................................... 1
3 4 BACKGROUND ............................................................................................................................ 3

5

I. Statutory and Regulatory Background................................................................................ 3

6

A. FISA .............................................................................................................................. 4

7

B. USA FREEDOM Act.................................................................................................... 5

8

9

II. Factual and Procedural Background ................................................................................... 6

10

III. Plaintiff’s Claims in the Second Amended Complaint ..................................................... 11

11 LEGAL STANDARD................................................................................................................... 13

12 ARGUMENT................................................................................................................................ 14

13

I. The Restriction on Plaintiff’s Speech is Narrowly Tailored

14

to Meet a Compelling State Interest.................................................................................. 14

15

II. Plaintiff has not Pled a Challenge under Freedman v. Maryland,

16

and that Authority Does Not Apply to Restrictions

on Disclosures About National Security Legal Process ................................................... 18 17

18

A. The Court Should Decline to Reach a Constitutional Issue Not Pled in the Complaint. ......................................................................................... 18

19

20

B. Restrictions on Disclosure of Classified Aggregate Data about Receipt of National Security Process are Not a Censorship or Licensing

21

Scheme Requiring the Procedural Protections of Freedman. ..................................... 20

22

III. The Legislative and Judicial Branches Also Lawfully

23

May Take Steps to Safeguard National Security Information. ......................................... 22

24 CONCLUSION............................................................................................................................. 24

25

26

27

28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR

i

Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 4 of 31

1

TABLE OF AUTHORITIES

2 Cases

3 Al-Haramain Islamic Found., Inc. v. Bush, 4 507 F.3d 1190 (9th Cir. 2007) ................................................................................................... 14

5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................................................................... 13
6

7

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................................... 13

8

9

Dep’t of Navy v. Egan, 484 U.S. 518 (1988)............................................................................................................. 15, 22

10 Dorfmont v. Brown,
11 913 F.2d 1399 (9th Cir. 1990) ................................................................................................... 22

12 Freedman v. Maryland, 13 380 U.S. 51 (1965).............................................................................................................. passim

14 Holder v. Humanitarian Law Project, 15 561 U.S. 1 (2010)....................................................................................................................... 15

16 In re Application of USA for an Order Pursuant to 28 U.S.C. § 1651(a), 2019 WL 4619698 (D.D.C. Aug. 6, 2019) ................................................................................ 24
17

18

In re Grand Jury Proceedings, 17 F. Supp. 3d 1033 (S.D. Cal. 2013)........................................................................................ 24

19

20

In re Grand Jury Proceedings, 417 F.3d 18 (1st Cir. 2005) ........................................................................................................ 24

21 In re Nat’l Sec. Letter, 22 863 F.3d 1110 (9th Cir. 2017) ............................................................................................ passim

23 John Doe, Inc. v. Mukasey, 24 549 F.3d 861 (2d Cir. 2008)............................................................................................. 5, 18, 20

25 Lyng v. Nw. Indian Cemetery Protective Ass’n, 26 485 U.S. 439 (1988)................................................................................................................... 19
27 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................................................................................................... 15
28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR

ii

Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 5 of 31

1

Snepp v. United States, 444 U.S. 507 (1980)......................................................................................................... 3, 15, 21

2 Stillman v. CIA,
3 517 F. Supp. 2d 32 (D.D.C. 2007) ............................................................................................. 14

4 Stillman v. CIA, 5 319 F.3d 546 (D.C. Cir 2003) .......................................................................................... 7, 14, 21

6 Thomas v. Chicago Park Dist., 7 534 U.S. 316 (2002)................................................................................................................... 19

8 United States v. Hanson, 9 2019 WL 4051595 (9th Cir. Aug. 28, 2019)........................................................................ 19, 22

10 United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) ................................................................................................... 21
11

12

United States v. Snepp., 897 F.2d 138 (4th Cir. 1990) ..................................................................................................... 21

13

14

15 Statutes
16 18 U.S.C. § 792............................................................................................................................. 13 17
50 U.S.C. § 1801............................................................................................................................. 3 18 19 50 U.S.C. § 1805....................................................................................................................... 4, 23

20 50 U.S.C. § 1824....................................................................................................................... 4, 23

21 50 U.S.C. § 1842....................................................................................................................... 5, 23 22
50 U.S.C. § 1861....................................................................................................................... 5, 23 23 24 50 U.S.C. § 1874..................................................................................................................... 4, 5, 6
25 50 U.S.C. § 1881a ..................................................................................................................... 4, 23

26

27

28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR

iii

Defs.’ Renewed Motion for Summary Judgment

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1 Other Legislative Materials 2 H.R. 3361, 113th Cong. (2014)....................................................................................................... 5 3 S. 2685, 113th Cong. (2014)........................................................................................................... 5 4 5
Rules 6 7 Fed. R. Civ. P. 56.......................................................................................................................... 13 8 9 Executive Materials 10
Exec. Order No. 13526 .......................................................................................................... passim 11 12 Exec. Order No. 12333 ................................................................................................................... 3 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

Plaintiff Twitter, Inc. seeks to publish in a draft “Transparency Report” precise detail

4 describing the amount and types of national security legal process that it received for the period

5 of July 1 to December 31, 2013, pursuant to the Foreign Intelligence Surveillance Act (“FISA”)

6 and National Security Letter (“NSL”) statutes, and to publish analogous data for subsequent

7 periods.1 See Second Am. Compl., ECF No. 114 (“SAC”) ¶ 4, 86, 91. Plaintiff contends that the

8 First Amendment requires that it be permitted to make such a disclosure. See SAC, Counts I–III.

9 That is not so.

10

Four different original classification authorities—all of them then serving as Executive

11 Assistant Director (“EAD”) or Acting EAD of the National Security Branch of the Federal

12 Bureau of Investigation (“FBI”)—have examined the information that Plaintiff seeks to publish

13 and determined that disclosure of that information reasonably could be expected to cause serious

14 damage to the national security.2 See ECF No. 147-1, ¶¶ 5–8, 29, 39; ECF No. 179-1, ¶ 6; ECF

15 No. 281-2, ¶¶ 19, 22, 25–27; Decl. of EAD Tabb, Ex. 1 hereto (“Tabb Decl.”), ¶¶ 5, 16, 29.

16 Most recently, EAD Tabb considered the information that Plaintiff seeks to publish and

17 determined that such information would provide “highly valuable insights” to international

18 terrorists, terrorist organizations, foreign intelligence services, cyber threat actors, and other

19 persons or entities who pose a threat to the national security (collectively, “adversaries”), giving

20 them a roadmap to the existence or extent of Government surveillance and capabilities associated

21 with Twitter. See Tabb Decl. ¶¶ 5, 7. EAD Tabb’s unclassified declaration describes the

22 information that adversaries could learn from Plaintiff’s proposed disclosures, to the detriment of

23

1As with Defendants’ other submissions in this litigation, the discussion herein of FISA

24 process that Plaintiff could have received is not intended to confirm or deny that Plaintiff has, in

25 fact, received any such national security legal process. 2 The EAD or Acting EAD of the National Security Branch has official supervision over
26 all of the FBI’s investigations to deter, detect, and disrupt national security threats to the United

27

States, and is responsible for, inter alia, overseeing the national security operations of the FBI’s Counterintelligence Division, Counterterrorism Division, High-Value Detainee Interrogation

28 Group, Terrorist Screening Center, and Weapons of Mass Destruction Directorate. See Tabb

Decl., ¶ 2.

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1 this country’s national security. See id. ¶¶ 5–8, 16–23. In sum, Plaintiff’s proposed disclosures

2 would inform adversaries where and how the United States is or is not deploying its investigative

3 and intelligence resources, and would tend to reveal which communications services may or may

4 not be secure, which types of information may or may not have been collected, and thus whether

5 or to what extent the United States is or is not aware of the activities of its adversaries. See id.

6 ¶ 7. Although EAD Tabb cannot address with more specificity, in this unclassified setting,

7 exactly what information adversaries could learn from Plaintiff’s proposed disclosures without

8 revealing the very information the Government is seeking to protect, EAD Tabb’s classified

9 declaration, submitted solely for the Court’s ex parte, in camera review contains further detail

10 about just why Plaintiff’s proposed disclosures would be so harmful.

11

Under any standard of review—whether the correct inquiry is if the Government had

12 “good reason” to classify the information Plaintiff seeks to publish, or whether strict scrutiny

13 applies to the restriction on Plaintiff’s speech—the First Amendment does not permit Plaintiff’s

14 proposed disclosures. As discussed herein, the protection of information the disclosure of which

15 reasonably could be expected to harm national security is inarguably a compelling state interest,

16 and the restriction on Plaintiff’s proposed disclosures about its receipt of national security

17 process is narrowly tailored to meet that interest. Importantly, not all reporting about national

18 security process is prohibited; on the contrary, the Director of National Intelligence (“DNI”) has

19 declassified multiple reporting formats through which Plaintiff may choose to publish detailed

20 information about this topic. See id. ¶¶ 13–14. The level of detail that Plaintiff seeks to divulge,

21 however, for the timeframe covered by its draft Transparency Report as well as subsequent

22 periods, would empower adversaries with information that they can use to take operational

23 security measures to conceal their activities, alter their methods of communication to exploit

24 secure channels of communication, or otherwise counter, thwart, or frustrate efforts by the

25 Government to collect foreign intelligence and to detect, obtain information about, or prevent or

26 protect against threats to the national security. Id. ¶ 19. More than that, adversaries also could

27 use such information to engage in deceptive tactics or disinformation campaigns that could

28 undermine lawful intelligence operations of the United States, and to carry out hostile actions

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1 that would expose Government personnel and their families to the risk of physical harm. Id. ¶ 9.

2 Because the restriction on Plaintiff’s speech is narrowly tailored to prevent these serious national

3 security harms, the determination that Plaintiff may not publish the information at issue is lawful

4 even under the most exacting strict scrutiny analysis.

5

Furthermore, because all three counts pled in Plaintiff’s Second Amended Complaint turn

6 on whether Plaintiff has a First Amendment right to publish the data at issue, the showing that

7 the restriction on publication is narrowly tailored to meet these compelling state interests is

8 dispositive. For all these reasons, explained herein and in the unclassified and classified

9 declarations of EAD Tabb, summary judgment should be entered for the Government and

10 Plaintiff’s Second Amended Complaint should be dismissed.

11

BACKGROUND

12

I. Statutory and Regulatory Background

13

The FBI is charged with primary authority for conducting counterintelligence and

14 counterterrorism investigations in the United States. See Exec. Order No. 12333 §§ 1.14(a),

15 3.4(a), 46 Fed. Reg. 59941 (Dec. 4, 1981). Today, the FBI carries out national security

16 operations, including counterintelligence, counterterrorism, and other activities to defeat national

17 security threats directed against the United States through the FBI’s National Security Branch,

18 which is overseen by EAD Tabb. See Tabb Decl. ¶ 2.

19

The conduct of national security investigations and the collection, production, and

20 dissemination of intelligence to support counterterrorism, counterintelligence, and other U.S.

21 national security objectives requires the FBI to collect, analyze, and disseminate information.

22 Congress has authorized the FBI to collect such information with a variety of legal tools,

23 including various authorities under the FISA and pursuant to the supervision of the Foreign

24 Intelligence Surveillance Court (“FISC”), an Article III court. See 50 U.S.C. § 1801 et seq.

25 Because the targets of national security investigations and others who seek to harm the United

26 States will take countermeasures to avoid detection, secrecy is often essential to protecting

27 national security while effectively carrying out counterterrorism and counterintelligence

28 investigations. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980). Recognizing that,

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1 Congress has empowered the FISC and the Executive Branch to maintain the confidentiality of

2 national security legal process. See, e.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(i)(1)(A); see also

3 Tabb Decl. ¶ 11. In the Uniting and Strengthening America by Fulfilling Rights and Ensuring

4 Effective Discipline Over Monitoring Act of 2015 (“USA FREEDOM Act”), Congress likewise

5 expressed its judgment regarding the manner in which recipients of national security process

6 may publish information about their receipt of such process, in the aggregate, without imposing

7 an unacceptable risk of harm to the national security. USA FREEDOM Act § 603, codified at 50

8 U.S.C. § 1874.

9

A. FISA

10

Multiple provisions of FISA provide that the FISC may issue orders that “direct”

11 recipients to provide certain information “in a manner that will protect the secrecy of the

12 acquisition.” See, e.g., 50 U.S.C. §§ 1805(c)(2)(B), 1881a(i)(1)(A). For example, Titles I and

13 VII of FISA provide that FISC orders “shall direct,” and FISA directives issued by the Attorney

14 General and DNI after FISC approval of an underlying certification “may direct,” recipients to

15 provide the Government with “all information, facilities, or assistance necessary to accomplish

16 the acquisition in a manner that will protect the secrecy of the acquisition,” without limitation.

17 50 U.S.C. § 1881a(i)(1)(A) (Title VII); see also id. § 1805(c)(2)(B) (similar language for Title I).

18 Additionally, the orders “shall direct” and the directives “may direct” that recipients “maintain

19 under security procedures approved by the Attorney General and the [DNI] any records

20 concerning the acquisition or the aid furnished” that such recipient maintains. 50 U.S.C.

21 § 1881a(i)(1)(B) (Title VII); see also id. § 1805(c)(2)(C) (similar language for Title I).

22 Consistent with the Executive Branch’s authority to control classified information, these

23 provisions explicitly provide for Executive Branch approval of the companies’ procedures for

24 maintaining the secrecy of records associated with FISA-authorized surveillance.

25

Other FISA titles that provide search or surveillance authorities also provide for secrecy

26 obligations to be imposed. See 50 U.S.C. § 1824(c)(2)(B)–(C) (requiring Title III orders to

27 require the recipient to assist in the physical search “in such a manner as will protect its secrecy”

28 and to provide that “any records concerning the search or the aid furnished” that the recipient

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1 retains be maintained under appropriate security procedures); Id. § 1842(d)(2)(B) (requiring Title

2 IV orders to direct that recipients “furnish any information, facilities, or technical assistance

3 necessary to accomplish the installation and operation of the pen register or trap and trace device

4 in such a manner as will protect its secrecy,” and that “any records concerning the pen register or

5 trap and trace device or the aid furnished” that the recipient retains shall be maintained under

6 appropriate security procedures); Id. § 1861(d)(1) (providing that “[n]o person shall disclose to

7 any other person that the [FBI] has sought or obtained tangible things pursuant to an order”

8 under Title V of FISA). Accordingly, to the extent that Plaintiff has received any process

9 pursuant to Titles I and VII of FISA, the Title VII directives would contain the statutorily

10 permitted nondisclosure provisions, while the Title I orders would contain nondisclosure

11 requirements that track the statutory provision. Likewise, Title III, IV, or V orders would be

12 accompanied by the statutory requirements described above.

13

B. USA FREEDOM Act

14

Between 2013 and 2015, Congress considered various bills relating to the appropriate

15 level of transparency regarding the Government’s use of national security process. See, e.g.,

16 H.R. 3361, 113th Cong. (2014); S. 2685, 113th Cong. (2014). The bills were introduced to

17 address developments affecting the Government’s use of national security process, including the

18 public interest in greater transparency, and the decision of the Second Circuit Court of Appeals

19 in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008). These efforts culminated with the

20 enactment of the USA FREEDOM Act.

21

In Section 603, codified at 50 U.S.C. § 1874, the USA FREEDOM Act reflects both

22 Congress’s and the Executive’s judgment regarding the manner in which providers may lawfully

23 report aggregate data reflecting their receipt of national security process. This section sets forth

24 two reporting methods that are similar or identical to options previously available to

25 communications providers following the declassification of such aggregate data by the DNI on

26 January 27, 2014. See 50 U.S.C. §§ 1874(a)(1), (a)(3). In addition, Section 603 sets forth two

27 additional methods of reporting on the receipt of national security process, which allow for even

28 more precise numerical reporting of the quantity of process received over a longer time period.

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1 See 50 U.S.C. §§ 1874(a)(2), (a)(4). On July 2, 2015, the DNI, in his discretion and consistent

2 with Section 603, declassified data related to national security process received by providers if

3 publicly reported by means of one of the four options which are set forth in the USA FREEDOM

4 Act.3 See ODNI Memorandum for Distribution (ES 2015-00366), Tabb Decl., Ex. 2. Thus, in

5 accordance with the DNI’s discretionary declassification and as provided in the USA

6 FREEDOM Act, recipients of national security process now may choose to publicly report

7 information about the quantity of national security process they receive in one of four ways. The

8 DNI’s 2015 declassification decision and the four public reporting options enumerated in the

9 USA FREEDOM Act thereby superseded the previous framework for public reporting set forth

10 at the time of the DNI’s prior declassification determination on January 27, 2014.

11

II. Factual and Procedural Background

12

On April 1, 2014, Twitter sent a draft proposed Transparency Report to the FBI, seeking

13 advice from the FBI as to which, if any, parts of the proposed report were classified and which

14 could be lawfully published. See Steinbach Decl., ECF No. 147-1, ¶ 22. The report contained

15 data reflecting the specific numbers and types of national security legal process that Twitter had

16 received from July 1 through December 31, 2013, in figures much more precise than had been

17 declassified at that time, or have been declassified today. Id. By letter dated September 9, 2014,

18 the FBI General Counsel informed counsel for Twitter that, after careful review of Twitter’s

19 proposed Transparency Report, the FBI had concluded that certain information contained in the

20 report was classified and could not lawfully be publicly released. Id. ¶ 23. On November 17,

21 2014, DOJ provided Twitter, through counsel, an unclassified version of Twitter’s draft

22 Transparency Report from which classified information had been redacted. Id. ¶ 24.

23

As the legal framework described above has evolved, so has this action. Plaintiff’s

24 original Complaint, ECF No. 1, focused on the disclosure options available in connection with

25 the January 27, 2014 DNI declassification. The Court held that the claims therein were mooted

26

27

3 While the DNI confirmed that there is harm to national security associated with the disclosure of the data even reported in these formats, the DNI determined that exceptional

28 circumstances outweighing the need for protection merited a limited declassification of data. See ODNI Memorandum for Distribution (ES-2015-00366), Tabb Decl., Ex. 2.

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1 by the passage of the USA FREEDOM Act. See ECF No. 85. Subsequently, the Court also

2 dismissed Plaintiff’s First Amended Complaint, finding that Plaintiff’s constitutional claims

3 were not viable absent a challenge to the classification of information in the draft Transparency

4 Report. Order, ECF No. 113 at 8.

5

Plaintiff then filed the currently-operative complaint, challenging, inter alia, whether the

6 information that it seeks to publish is properly classified. See SAC; see also Section III infra

7 (detailing the claims in the currently-operative complaint). Defendants responded by seeking a

8 conference to set a schedule for summary judgment briefing, urging the Court to resolve this case

9 using the procedures set forth in Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003), which provides

10 that in First Amendment challenges to classification determinations brought by persons subject

11 to non-disclosure requirements, “in camera review of affidavits, followed if necessary by further

12 judicial inquiry, will be the norm.” See ECF No. 116 at 2 (quoting Stillman, 319 F.3d at 548–

13 49). The Court denied the Defendants’ request, and indicated that a responsive pleading would

14 be required prior to summary judgment briefing. See ECF No. 119. Defendants submitted their

15 answer to the Second Amended Complaint on July 5, 2016. See Answer, ECF No. 120.

16

Shortly thereafter, Plaintiff moved for a background investigation to permit its counsel to

17 obtain a security clearance, stating that it sought such a clearance so that counsel could review

18 classified information in connection with these proceedings. See ECF No. 124. Defendants

19 opposed that motion, explaining that counsel access to classified information in this setting was

20 neither necessary nor appropriate. See ECF No. 133. At a subsequent case management

21 conference, Defendants expressed concern about proceeding to submit classified information to

22 the Court with Plaintiff’s motion still pending, but the Court directed Defendants to submit their

23 motion for summary judgment, including classified evidence supporting that motion. Oct. 24,

24 2016 Tr., ECF No. 138, 30:14–22, 31:2–24; 32:4–13. Consistent with the Court’s Order,

25 Defendants submitted their motion for summary judgment, see ECF No. 145, including the

26 Classified Declaration of EAD Steinbach, explaining why publication of the information in

27 Plaintiff’s draft Transparency Report reasonably could be expected to harm national security.

28 See Notice of Lodging of Classified Declaration, ECF No. 144. Defendants also submitted an

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1 unclassified version of that declaration, providing as much information from EAD Steinbach’s

2 classified declaration as possible, consistent with the national security, on the public record. See

3 Unclassified Steinbach Decl., ECF No. 147-1, ¶ 1. On July 6, 2017, the Court denied without

4 prejudice the Government’s summary judgment motion, and granted Plaintiff’s motion to initiate

5 a background investigation of its counsel to determine whether counsel was eligible for a

6 security clearance. See ECF No. 172.4 Defendants sought reconsideration based on the Ninth

7 Circuit’s decision in In re National Security Letter, 863 F.3d 1110 (9th Cir. 2017) (“In re NSL”),

8 see ECF No. 180, and the Court denied Defendants’ motion. See ECF No. 186.

9

While the Defendants’ summary judgment motion was pending, Plaintiff served its

10 discovery requests, and Defendants responded with their objections. Although Plaintiff’s

11 requests sought classified and unclassified responses, including the Classified Steinbach

12 Declaration, the parties’ February 17, 2017 joint letter brief made clear that Plaintiff was not

13 seeking to compel access to classified information at that time. See Joint Letter Brief, ECF No.

14 167 at 1 n.2. On August 8, 2017, Defendants submitted a declaration from EAD Carl Ghattas,

15 who became EAD of FBI’s National Security Branch after EAD Steinbach retired, describing the

16 requirements that must be fulfilled before any individual may access classified information. See

17 ECF No. 175-1, ¶¶ 9–16. EAD Ghattas attested that the FBI had determined that Plaintiff’s

18 counsel do not fulfill those requirements with respect to the classified information at issue in this

19 case—including the Classified Steinbach Declaration—because the FBI has determined that

20 counsel lack a “need-to-know” that information, as defined by the operative Executive Order.

21 See id. ¶¶ 17–21. On February 12, 2018, the Court overruled a number of Defendants’

22 objections to Plaintiff’s discovery requests, see ECF No. 188, and the parties proceeded with

23 discovery. See ECF No. 244 at 10–13. Defendants, inter alia, reviewed for responsiveness and

24 logged classified materials, including the Classified Steinbach Declaration.

25

At a November 26, 2018 case management conference, Plaintiff requested access to the

26

27

4 Consistent with the Court’s Order, the Government completed a background investigation of Plaintiff’s counsel. That background investigation was favorably adjudicated.

28 See Fourth Updated Joint Case Management Statement, ECF No. 244 at 7.

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1 Classified Steinbach Declaration that Defendants had submitted in support of their first summary

2 judgment motion, see Nov. 26, 2018 Tr., ECF No. 251, at 8:20–22, 13:2–5; see also ECF No.

3 250). Briefing then followed in which the Defendants urged the Court to deny the request for

4 access and to return to consideration of the merits of Plaintiff’s claims based on the model set

5 forth in Stillman v. CIA for persons subject to non-disclosure obligations – ex parte, in camera

6 review of the Government’s explanation as to why disclosure of the kind of information in

7 Twitter’s Draft Transparency Report would harm national security. See ECF No. 256.

8 Defendants also noted that they had initiated the process of considering whether to assert the

9 state secrets privilege to protect the information in the Classified Steinbach Declaration from

10 disclosure but asked that the Court deny Plaintiff’s request on other grounds.

11

On January 2, 2019, the Court entered the Order to Show Cause re: Disclosure of

12 Declaration Submitted in Camera, ordering Defendants to show cause why they should not be

13 compelled to disclose the Classified Steinbach Declaration to Plaintiff’s Counsel. See ECF No.

14 261. In briefing submitted in response to the Order to Show Cause, Defendants noted that they

15 were continuing to consider an assertion of the state secrets privilege to protect the classified

16 information in the Classified Steinbach Declaration, but urged the Court to obviate the need for

17 such an assertion by denying the Plaintiff’s request for access on legal grounds. See ECF No.

18 264 at 4, 9–14, 18; ECF No. 269 at 2, 15. Because the Plaintiff’s request and the Order to Show

19 Cause remained pending, the Attorney General invoked the state secrets privilege to protect the

20 classified information in the Classified Steinbach Declaration. See ECF No. 281.

21

In its submission asserting the state secrets privilege, the Government asked in the first

22 instance that that the Court discharge the Order to Show Cause and deny Plaintiff’s request for

23 access to the Classified Steinbach Declaration and to proceed with the case under Stillman-like

24 procedures for judicial review of the merits; the Government sought dismissal of this action on

25 state secrets grounds only in the alternative. See ECF No. 281. In support of its privilege

26 assertion, the Government submitted a declaration from the Attorney General, as well as

27 classified and unclassified declarations from Acting EAD McGarrity explaining the harms to

28 national security that reasonably could be expected to result from the disclosure of information

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1 contained in the Classified Steinbach Declaration, including to Plaintiff’s counsel. See ECF Nos.

2 281-1, 281-2, 282. Necessarily—because the very purpose of the Classified Steinbach

3 Declaration, submitted with the Government’s first summary judgment motion, was to explain

4 the harms of disclosing granular data about Plaintiff’s receipt of national security process, such

5 as that contained in the draft Transparency Report—the McGarrity declarations specifically

6 addressed the information that Plaintiff seeks to publish in its transparency reporting and

7 explained the harms to national security that could reasonably be expected to result from

8 disclosure of that information. See ECF No. 281-2, ¶¶ 13, 18, 19, 23, 25–27. Following briefing

9 directed at Plaintiff’s request for access to classified information, the Court issued a separate

10 Order to Show Cause Why This Court Should Not Reconsider its Order Denying the Govt’s Mot.

11 for Summary Judgment, ECF No. 301 (“June 21, 2019 Order to Show Cause”).

12

In that June 21, 2019 Order to Show Cause, the Court noted that it had previously denied

13 the Government’s summary judgment motion without prejudice, and that the classified

14 declaration of Acting EAD McGarrity (submitted in litigating the question of Plaintiff’s access to

15 classified information) “provide[d] an explanation of the Government’s basis for restricting the

16 information that can be published in the Draft Transparency Report, and the grave and imminent

17 harm that could reasonably be expected to arise from its disclosure, in far greater detail than the

18 Government provided previously.” Id. at 2. The Court noted that it was “inclined to find that the

19 classified McGarrity Declaration meets the Government’s burden under strict scrutiny to justify

20 classification and restrict disclosure of information in the Draft Transparency Report, based upon

21 a reasonable expectation that its disclosure would pose grave or imminent harm to national

22 security, and that no more narrow tailoring of the restrictions can be made.” Id. The Court

23 therefore ordered the parties to show cause why the Court should not reconsider its prior Order

24 Denying the Government’s Motion for Summary Judgment Without Prejudice. Id. at 1.

25

On August 23, 2019, the parties jointly responded to the June 21, 2019 Order to Show

26 Cause, and asked that the classified McGarrity declaration itself not be used to inform the

27 Court’s consideration of the Government’s motion for summary judgment (since it was

28 submitted to address a different issue – the disclosure of classified information submitted by the

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1 Government in this litigation, including to Plaintiff’s counsel), but instead that Defendants be

2 permitted to submit a new summary judgment motion, supported by a new declaration, which

3 would incorporate, as appropriate, those aspects of the information proffered in the McGarrity

4 declaration germane to the merits of the case. See ECF No. 306 at 2–3. The Court granted the

5 parties’ request and issued an Order setting a new briefing schedule, permitting cross-motions for

6 summary judgment in this matter. ECF No. 307. Defendants respectfully submit the instant

7 summary judgment motion pursuant to that Order, supported by the classified and unclassified

8 declarations of EAD Tabb, which incorporate those aspects of the information proffered in the

9 declarations of Acting EAD McGarrity that are germane to the merits of the case.

10

III. Plaintiff’s Claims in the Second Amended Complaint

11

Plaintiff asserts three duplicative causes of action, see SAC ¶¶ 71–96, based on which it

12 seeks declaratory and injunctive relief to allow it to publish the information in the draft

13 Transparency Report that the Government has determined to be properly classified, as well as

14 similar information covering subsequent time periods, see id., Prayer for Relief. All of

15 Plaintiff’s requests for relief, like the three counts of the Second Amended Complaint, turn on

16 whether Plaintiff has a First Amendment right to publish the information at issue; if, as discussed

17 herein, Plaintiff has no First Amendment right to publish such information, then all of its claims

18 must be dismissed.

19

Count I is styled as an implied cause of action under the First Amendment. See id. at 17.

20 Plaintiff acknowledges that there is no First Amendment right to publish the information at issue

21 if it is properly classified, see id. ¶ 73, but alleges, that because the information redacted from the

22 draft Transparency Report is not properly classified, any prohibition on its disclosure constitutes

23 a unconstitutional prior restraint on its speech, see id. ¶¶ 72, 76, 79–82, 84–86. There are two

24 separate components to Count I. First, Plaintiff alleges that the information redacted from the

25 draft Transparency Report is not properly classified because it does not satisfy the requirements

26 of Executive Order 13526, id. ¶¶ 73–81; Plaintiff contends that by “improperly classif[ying]

27 information and then prevent[ing] its publication,” the Government has violated the First

28 Amendment. Id. ¶ 85. Also as part of Count I, Plaintiff contends that the Court should issue a

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1 declaratory judgment that “the standards set forth in Executive Order 13526 constitute the only

2 grounds on which the government may rely to prohibit disclosure of the redacted information in

3 the draft Transparency Report.” Id. It appears that this request is based on Plaintiff’s contention

4 that “[i]f the information that Twitter seeks to publish is not properly classified under Executive

5 Order 13526, then the government has no other basis for prohibiting its disclosure.” Id. ¶ 82.

6

Count II is a duplicative First Amendment claim that mirrors the substance of the claim

7 and relief sought in Count I, compare id. ¶¶ 85–86 with id. ¶¶ 90–91, but is asserted through the

8 waiver of sovereign immunity provided under the Administrative Procedure Act (“APA”), see id.

9 at 21. Like Count I, the essence of Count II is Plaintiff’s allegation that the information redacted

10 from the draft Transparency Report is not properly classified, and that Plaintiff therefore has a

11 First Amendment right to publish it. See id. ¶¶ 88–89. In Count II, Plaintiff challenges the

12 “decision to censor Twitter’s transparency report” as a “final agency action” through which it has

13 suffered a legal wrong, because the agency decision not to allow publication “violates the First

14 Amendment.” Id. ¶ 88–89. Count II does not specifically identify the action to which it refers,

15 but the SAC refers elsewhere to the September 9, 2014 letter from FBI General Counsel James

16 A. Baker to counsel for Plaintiff, which advised Plaintiff that “information contained in the

17 report is classified and cannot be publicly released.” ECF No. 1-5 (“FBI Letter”); SAC ¶ 57

18 (describing and quoting the FBI Letter). The Second Amended Complaint also refers to the

19 Government’s production, on November 17, 2014, of a redacted version of the draft

20 Transparency Report, from which the Government redacted classified national security

21 information. See SAC ¶ 61. In any event, this purported APA claim amounts to another version

22 of the same challenge to the Government’s determination that information in the draft

23 Transparency Report is classified, and for which Plaintiff seeks the same relief that it does with

24 Count I: injunctive relief permitting publication of information that it alleges is not properly

25 classified and three forms of declaratory relief.5 Compare id. ¶¶ 85–86 with id. ¶¶ 90–91.

26

5 Specifically, Plaintiff seeks: 1) a declaration that Executive Order 13526 is the only

27

basis on which the Government can restrict publication of the information redacted from the draft Transparency Report; 2) a declaration that the FISA nondisclosure provisions do not restrict

28 publication of the information redacted from the draft Transparency Report; and 3) a declaration

that the information redacted from the draft Transparency Report was improperly classified, and

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1

In Count III, Plaintiff raises another First Amendment claim, again nearly identical in

2 scope, asserting that the Espionage Act is unconstitutional as it would allegedly be applied to it

3 to foreclose publication of the information the Government has determined to be classified.6 See

4 id. ¶¶ 92–96. Plaintiff avers that it has a “reasonable concern” that it would face prosecution if it

5 were to disclose the classified information redacted from its draft Transparency Report. Id. ¶ 93.

6 Arguing that any such prosecution would violate its First Amendment right to speak truthfully

7 about matters of public interest, Plaintiff seeks declaratory and injunctive relief barring any such

8 prosecution. Id. ¶¶ 95–96. In short, all three Counts are First Amendment claims that turn on

9 one issue: whether the Government properly determined that disclosure of the information

10 redacted from the draft Transparency Report, and analogous information for subsequent time

11 periods, reasonably could be expected to harm national security.

12

The Prayer for Relief largely reflects the requests for relief in Plaintiff’s Counts I–III, but

13 also contains a freestanding request that the Court enter a declaratory judgment that “[t]he FISA

14 secrecy provisions are facially unconstitutional under the First Amendment because they do not

15 require nondisclosure orders to contain a defined duration.” See id. Prayer for Relief, (A)(v).

16 That request is not tethered to Plaintiff’s request to publish its draft Transparency Report, which

17 is the focus of all three of the Counts in the Second Amended Complaint. See id. ¶¶ 71–96.

18

LEGAL STANDARD

19

Summary judgment is appropriate where “there is no genuine dispute as to any material

20 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is properly

22 regarded “not as a disfavored procedural shortcut, but rather as an integral part of the Federal

23 Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination

24 of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

25 that Plaintiff therefore has the right to publish such information. Id. ¶ 90. Only the last listed

26 declaration pertains to the decision that Plaintiff seeks to challenge—the Government

determination that information is classified, see id. ¶¶ 57, 61, 88.

27

6 The Espionage Act of 1917, 40 Stat. 217, was enacted to protect information related to

28 national defense from being used to the advantage of adversaries. It has been amended

numerous times and is currently codified at 18 U.S.C. § 792, et seq.

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1 In cases where the central dispute is whether information is properly classified, summary

2 judgment is proper if the Court is able to reach such a determination based upon materials

3 submitted by the Government, including through in camera and ex parte review. See, e.g.,

4 Stillman v. CIA, 517 F. Supp. 2d 32 (D.D.C. 2007) (granting summary judgment upon remand).

5

ARGUMENT

6

I. The Restriction on Plaintiff’s Speech is Narrowly Tailored to Meet a Compelling State Interest.

7

In In re NSL, 863 F.3d 1110 (9th Cir. 2017), the Court of Appeals held that a prohibition

8 on the disclosure of “the bare fact of receiving” an NSL is a content-based restriction to which

9 the Supreme Court’s strict scrutiny test applies. Id. at 1124. Although much more than the bare

10 fact of receiving national security process would be revealed by the information that Plaintiff

11 seeks to disclose here, see infra at 17–18, this Court, too, has held that strict scrutiny applies to

12 the Government’s determination that the information at issue in this case may not be published.

13 See ECF No. 172 at 15; ECF No. 186 at 3–4. In its recent Order to Show Cause, the Court again

14 referred to “the Government’s burden under strict scrutiny to justify classification and restrict

15 disclosure of information in the Draft Transparency Report.” ECF No. 301 at 1.

16

For the reasons explained in the Defendants’ prior motion for summary judgment, see

17 ECF No. 145 at 11–15, 18–19, Defendants respectfully disagree that a challenge to a

18 nondisclosure requirement imposed on the recipient of national security legal process—or the

19 Government determination that a party subject to a nondisclosure obligation may not publish

20 information because it is classified—must satisfy strict scrutiny as a content-based restriction on

21 speech. See, e.g., Stillman, 319 F.3d at 548 (party under nondisclosure obligations had no First

22 Amendment right to publish classified information); Al-Haramain Islamic Found., Inc. v. Bush,

23 507 F.3d 1190, 1203 (9th Cir. 2007) (“acknowledg[ing] the need to defer to the Executive on

24 matters of . . . national security”). However, while Defendants reserve the right to argue on a

25 subsequent appeal that a different standard should apply, for purposes of this motion, Defendants

26 address the analysis in In re NSL as presently controlling, as well as the standard that this Court

27 previously found applicable. But even if strict scrutiny applies to the Government’s

28 determination in this setting, that test is satisfied here: the restriction on the publication of the

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1 classified data in the draft Transparency Report, and analogous data for subsequent periods, is

2 “narrowly tailored to serve a compelling state interest.” In re NSL, 863 F.3d at 1123 (quoting

3 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)).

4

First, as the Court of Appeals “readily conclude[d],” the national security constitutes a

5 compelling Government interest. Id. (noting that the Supreme Court “has recognized that

6 ‘[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective

7 of the highest order’”) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010)).

8 More specifically, the Court of Appeals recognized that “keeping sensitive information

9 confidential in order to protect national security is a compelling government interest.” Id. In so

10 holding, the Court of Appeals relied on the Supreme Court’s reasoning that the Government has

11 a compelling interest “in withholding national security information from unauthorized persons in

12 the course of executive business,” id. (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988)),

13 and in “protecting both the secrecy of information important to our national security and the

14 appearance of confidentiality so essential to the effective operation of our foreign intelligence

15 service,” id. at 1124 (quoting Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)).

16

The declarations of EAD Tabb explain why the determination at issue here—that Plaintiff

17 may not publish the information redacted from the draft Transparency Report or analogous data

18 for subsequent timeframes—is narrowly tailored to meet these compelling interests. The

19 classified declaration of EAD Tabb details what the Court has recognized as “the grave and

20 imminent harm that could reasonably be expected to arise from [the] disclosure” of such

21 information.7 ECF No. 301 at 2. The Court further recognized, based on that detailed classified

22 explanation “that no more narrow tailoring of the restrictions [on Twitter’s publication of the

23

24

7 As noted above, see supra at 10–11, the explanation to which the Court was referring was offered in an earlier declaration, in which Acting EAD McGarrity explained the harm of

25 disclosure of classified information, including to Plaintiff’s counsel, contained in materials the Government had submitted solely for the Court’s ex parte, in camera review – a discussion that
26 necessarily addressed the harm of disclosing the classified information in Plaintiff’s draft

27

Transparency Report. In the classified declaration submitted in support of the instant renewed summary judgment motion, EAD Tabb has included those facets of Acting EAD McGarrity’s

28 explanation, i.e. the detailed explanation of the harms of disclosing the information that Plaintiff

seeks to publish.

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1 information at issue] can be made.” Id. While it is not possible for EAD Tabb to explain in an

2 unclassified setting with the same level of specificity the harm that reasonably could be expected

3 to result from disclosure, his unclassified declaration discusses the harms of disclosure and the

4 reasons for classification to the extent possible consistent with national security.

5

EAD Tabb explains that disclosure of the information at issue here would provide

6 adversaries with a roadmap to the existence or extent of Government surveillance at Twitter,

7 giving them highly valuable insights into where and how the United States is or is not deploying

8 its investigative and intelligence resources, revealing the extent, scope, and reach of the

9 Government’s national security collection capabilities and investigative interests. Tabb Decl. ¶¶

10 5, 16. Such information would give adversaries insight into the Government’s counterterrorism

11 and counterintelligence efforts and capabilities—or, significantly, the lack thereof—and into

12 particular sources, methods, and techniques. Id. ¶ 16. Specifically, the data that Plaintiff seeks

13 to disclose would reveal such information as: (i) incremental increases or decreases in collection

14 over time, which would show whether the Government has a significant presence or investigative

15 focus on a particular platform, reflecting the extent to which the platform becomes more or less

16 “safe” over time; (ii) the collection of content or non-content information, which would show

17 whether and to what extent the Government is collecting certain types of information on the

18 platform; and (iii) the fact of whether or when the recipient received a particular type of process

19 at all, which may reflect different collection capabilities and focus on that platform, different

20 types of information collection, and locations of FBI targets. Id. ¶¶ 16, 17, 18, 21.8

21

Armed with such information, adversaries reasonably can be expected to exploit it. As

22 EAD Tabb explained, the FBI has long known that adversaries gather publicly available

23 information to learn sources, methods, and techniques of U.S. intelligence and law enforcement

24

25

8 It is important to note that these revelations would not be limited to national security

process served on Twitter. Tabb Decl. ¶¶ 8, 20. If the Court were to permit the disclosure that 26 Plaintiff seeks to make here, other electronic communication service providers would seek to

27

make similarly detailed disclosures, ultimately yielding for adversaries a comprehensive picture of the Government’s use of national security process that they could use to evaluate the

28 Government’s collection capabilities and vulnerabilities, and which they could then use to the

detriment of our national security. Id.; see also infra at 18.

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1 agencies, in order to take countermeasures to attempt to limit the effectiveness of or thwart these

2 sources, methods, and techniques. Id. ¶¶ 24–26. Based on this knowledge and experience, EAD

3 Tabb has concluded that “we must expect our adversaries to obtain and exploit information

4 regarding national security process contained within transparency reporting.” Id. ¶ 25. That is,

5 we must expect that adversaries will take action based on the information that Plaintiff seeks to

6 disclose. Id. In particular, EAD Tabb sets forth a number of ways in which adversaries

7 reasonably could be expected to use the information that Plaintiff seeks to publish: based on

8 such information, adversaries can be expected to take operational security measures to conceal

9 their activities, alter their methods of communication to exploit secure channels of

10 communication, or otherwise counter, thwart or frustrate efforts by the Government to obtain

11 foreign intelligence and to detect, obtain information about, or prevent or protect against threats

12 to the national security. Id. ¶ 19. Moreover, adversaries could use such information to engage in

13 deceptive tactics or disinformation campaigns that could undermine lawful intelligence

14 operations of the United States, and to carry out hostile actions that would expose Government

15 personnel and their families to the risk of physical harm. Id. ¶ 9.

16

Although EAD Tabb made clear that the above-discussed effects would apply to a broad

17 variety of adversaries, he highlighted, in particular, the potential harm to the Government’s

18 counterterrorism efforts that reasonably could be expected from the disclosures that Plaintiff

19 proposes. See id. ¶¶ 22–23. EAD Tabb noted that his determination regarding the potential

20 harm of disclosing the information at issue is informed by the use of social media, including

21 Twitter, by terrorist organizations such as the Islamic State of Iraq and Syria (“ISIS”). Id. ¶ 22.

22 Especially given the use of social media like Twitter by terrorist adversaries, it is imperative that

23 the Government maintain the capability to monitor communications platforms, as authorized,

24 without disclosures related to national security legal process that would reveal the extent and

25 nature of such surveillance and capabilities, id ¶ 23, and which would thus empower those

26 terrorist adversaries to avoid detection or to carry out hostile actions.

27

For all these reasons, the determination that Plaintiff cannot publish the information at

28 issue here is narrowly tailored to serve the compelling interest of national security. As noted

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Defs.’ Renewed Motion for Summary Judgment

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1 above, the classified declaration of EAD Tabb provides further detail regarding exactly why no

2 further narrow tailoring is possible, and why Plaintiff may not disclose the information that it

3 seeks to publish without risking serious harm to the national security. The same analysis of the

4 harm that reasonably could be expected to arise from disclosure of this information also fulfills

5 the requirement, noted by the Court, that the Government justify classification, see ECF No. 301

6 at 2, and EAD Tabb’s declaration explains why the information at issue fulfills the other

7 requirements for classification under Executive Order 13526. See Tabb Decl. ¶¶ 27–31. Based

8 on the Government’s detailed showing, justifying classification and explaining the serious

9 national security harm that reasonably could be expected to result from Plaintiff’s proposed

10 disclosure, the Court should find that this restriction on publication comports with strict scrutiny,

11 and thus that Plaintiff has no First Amendment right to publish the data in its draft Transparency

12 Report or analogous data for subsequent periods.

13

II. Plaintiff has not Pled a Challenge under Freedman v. Maryland, and that

Authority Does Not Apply to Restrictions on Disclosures About National

14

Security Legal Process.

15

In the decision on the Government’s prior motion for summary judgment, the Court went

16 beyond the application of strict scrutiny to the Government determination that Plaintiff may not

17 publish the information at issue, and considered the application of Freedman v. Maryland, 380

18 U.S. 51 (1965), to the instant case. See ECF No. 172 at 18. The Court should decline to do so

19 again. As discussed below, Plaintiff has not pled a challenge under Freedman in the Second

20 Amended Complaint, and Constitutional avoidance principles counsel against addressing this

21 theory. But if the Court were to reach the issue, it should find, based on the guidance of the

22 Ninth Circuit in In re NSL and the reasoning of the Second Circuit in Doe v. Mukasey, that the

23 present circumstances are not a setting in which the Freedman framework applies. Finally, if

24 such protections were applicable here, the requirements of Freedman would be satisfied.

25

A. The Court Should Decline to Reach a Constitutional Issue Not Pled in the

26

Complaint.

“A fundamental and longstanding principle of judicial restraint requires that courts avoid 27

28 reaching constitutional questions in advance of the necessity of deciding them.” United States v.

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1 Hanson, --- F.3d ---, 2019 WL 4051595, at *9 n.10 (9th Cir. Aug. 28, 2019) (quoting Lyng v.

2 Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)). Here, the Court should not

3 decide whether the procedural requirements of Freedman v. Maryland are satisfied—or apply in

4 the first instance—because Plaintiff has pled no such challenge in its complaint.

5

In Freedman v. Maryland, the Supreme Court set forth three requirements designed to

6 ensure that the judicial review of a licensing body’s decisions happens swiftly enough to protect

7 would-be speakers’ First Amendment rights:

8

(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial

9

review of that decision must be available; and (3) the censor must bear the burden

of going to court to suppress the speech and must bear the burden of proof once in

10

court.

11 Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002) (discussing Freedman). The very heart

12 of the decision in Freedman, evident in all three of its procedural safeguards, is facilitating

13 judicial review. See id. The crux of the argument in that case was that the judicial review

14 previously available to challenge the licensing body’s decisions had been “too little and too late.”

15 Freedman, 380 U.S. at 57. Thus, the Supreme Court set forth three safeguards all designed to

16 ensure that a party subject to a licensing scheme would have access to timely judicial review of

17 any restriction on its speech: the first safeguard limits the length of a restriction on speech only

18 “prior to judicial review”; the second safeguard expressly requires the availability of

19 “expeditious judicial review”; and the third safeguard requires the Government to bear the

20 burden of “going to court,” i.e. obtaining judicial review. Thomas, 534 U.S. at 321. In sum, the

21 Freedman safeguards, where applicable, are aimed at ensuring that judicial review of a censor’s

22 restriction on speech is neither too slow nor too cumbersome to provide for meaningful

23 protection of a party’s First Amendment rights.

24

In the instant case, Plaintiff has pled no such challenge. Rather, Plaintiff alleges that, as a

25 substantive matter, the information that it seeks to publish is not properly classified, and that

26 there are no lawful grounds on which the Government may restrict its publication. See supra at

27 12–14 (detailing the three Counts in the Second Amended Complaint). For this reason alone, the

28 Court should decline to reach the question of whether the Freedman safeguards apply here.

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1

B. Restrictions on Disclosure of Classified Aggregate Data about Receipt of National Security Process are Not a Censorship or Licensing Scheme

2

Requiring the Procedural Protections of Freedman.

3

Even if the Court were to consider the Freedman framework, it should find that it has no

4 application here. The sharp contrast between the instant setting and the circumstances in

5 Freedman, as well as the reasoning of the Ninth Circuit and the Second Circuit in cases

6 addressing nondisclosure requirements applicable to NSLs, all support this conclusion.

7

First, Freedman itself focused on purely executive restrictions on speech—a requirement

8 that films be submitted to a state board of censors—and did not implicate any statutorily or

9 judicially-imposed nondisclosure obligations analogous to any NSLs or FISC process the

10 Plaintiff may have received here. See Freedman, 380 U.S. at 52. Indeed, the Ninth Circuit has

11 recognized the significant difference between the nondisclosure requirements stemming from the

12 statutory framework applicable to NSLs and those settings in which the Supreme Court has

13 found the Freedman framework applicable. See In re NSL, 863 F.3d at 1128. Although there

14 was no need in that case for the Ninth Circuit to reach the constitutional question of whether the

15 Freedman framework applied to the NSL statutes, see id. at 1129, the Court of Appeals at great

16 length discussed that “the NSL law does not resemble [the] government censorship and licensing

17 schemes” in which procedural safeguards have been found to be required. Id. at 1128. The

18 Ninth Circuit looked to the reasoning of the Second Circuit in Doe v. Mukasey, noting that

19 “‘[u]nlike an exhibitor of movies,’ the recipient of a nondisclosure requirement ‘did not intend to

20 speak and was not subject to any administrative restraint on speaking prior to the Government’s

21 issuance of an NSL.’” Id. at 1128 (quoting Doe, 549 F.3d at 880) (emphasis the Ninth Circuit’s).

22 The Court reasoned that “[r]ather than resembling a censorship or licensing scheme, the NSL law

23 is more similar to governmental confidentiality requirements that have been upheld by the

24 courts.” Id. at 1129 (analogizing to restrictions in grand jury proceedings). Here, as in In re

25 NSL, Plaintiff was not subject to nondisclosure restrictions prior to the Government’s issuance of

26 process to the Plaintiff. As the Ninth Circuit pointed out in reviewing the NSL law, “the

27 [Supreme] Court has not held that these sorts of government confidentiality restrictions must

28 have the sorts of procedural safeguards required for censorship and licensing schemes.” Id.

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1

Indeed, application of these factors would make little sense where the data regarding

2 national security legal process itself arises from either NSLs, which already are accompanied by

3 procedural safeguards comporting with the Freedman framework, see In re NSL, 863 F.3d at

4 1129, or from FISA process, which begins with a Court order or a directive issued in connection

5 with judicially-reviewed process. See supra at 5–6 (discussing various forms of FISA process).

6 In this setting, if the Freedman framework were applied, it would be satisfied: as to the first

7 Freedman requirement, there is no restraint on speech prior to judicial review, because FISA

8 process emanates from FISC orders or process overseen by that court. As to the second factor,

9 because of the FISC’s involvement in and supervision of process issued under FISA, judicial

10 review is available, not just “expeditious[ly],” but from the very outset. And, finally, with

11 respect to the third factor, the burden of “going to court” necessarily rests with the Government,

12 which initiates FISC process. Thus, far from constituting a licensing scheme subject to

13 Freedman, restrictions on the disclosure of aggregate data on national security legal process

14 already emanate from non-disclosure obligations subject to the judicial process.

15

More generally, no case of which Defendants are aware obligates the Government to

16 initiate judicial review on an expedited basis in order to protect classified information entrusted

17 to persons subject to non-disclosure obligations whenever they claim a First Amendment right to

18 disclose it. See United States v. Snepp, 897 F.2d 138, 141–43 (4th Cir. 1990) (rejecting the

19 argument that the CIA should be required to initiate judicial review to protect classified

20 information in prepublication review context); United States v. Marchetti, 466 F.2d 1309, 1317

21 (4th Cir. 1972) (rejecting same argument, reasoning “[b]ecause of the sensitivity of the area and

22 confidentiality of the relationship in which the information was obtained . . . we find no reason to

23 impose the burden of obtaining judicial review upon the CIA”). Such a requirement could lead

24 to constant emergency efforts by the Government to enlist courts to prevent disclosures that

25 would jeopardize national security. Indeed, the law is clear that persons subject to nondisclosure

26 obligations have no First Amendment right to disclose classified information, see Snepp, 444

27 U.S. at 509–510 & n.3, but that such persons have a remedy to obtain judicial review of

28 restrictions in particular cases, see, e.g., Stillman, 319 F.3d at 548–549.

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1

III. The Legislative and Judicial Branches Also Lawfully May Take Steps to Safeguard National Security Information.

2

As part of Count I and Count II, Plaintiff seeks a declaration under the First Amendment

3 that Executive Order 13526 “constitute[s] the only grounds on which the government may rely to

4 prohibit disclosure of the redacted information in the draft Transparency Report.” SAC ¶¶ 85,

5 90. Plaintiff also seeks a declaration that FISA does not prohibit the disclosures at issue here, or

6 that, insofar as it does prohibit them, it is unconstitutional. But the Court need not, and should

7 not reach these questions; if the Court finds that the Government’s determination that Plaintiff

8 may not publish the information at issue is narrowly tailored to meet the Government’s

9 compelling interest in national security, then Plaintiff has no First Amendment right to publish it.

10 See Hanson, --- F.3d ---, 2019 WL 4051595, at *9 n.10 (reiterating that courts should “avoid

11 reaching constitutional questions in advance of the necessity of deciding them”).

12

In any event, if the Court were to consider these other arguments, the Court would find

13 that Plaintiff’s attempts to limit the protection for the information at issue are without merit.

14 Plaintiff cites no authority for the proposition that the only manner in which national security

15 information can be protected from disclosure is through Executive Order. To be sure, the

16 protection of classified information by the Executive Branch, which is based on the President’s

17 Article II constitutional authority, is undoubtedly the paramount consideration in deciding

18 whether information should be protected from disclosure. As Defendants have explained in prior

19 briefing, the Constitution confers on the Executive the exclusive responsibility for the protection

20 and control of national security information, see Egan, 484 U.S. at 527; Dorfmont v. Brown, 913

21 F.2d 1399, 1401 (9th Cir. 1990), and Executive Order 13526, which sets forth the framework for

22 classification, was promulgated pursuant to that constitutional authority. See ECF No. 145 at

23 12–13. But, as discussed below, other authorities may also apply to protect the information

24 redacted from the draft Transparency Report from disclosure, including statutes and court orders.

25

Plaintiff’s contention that FISA nondisclosure provisions would not protect aggregate

26 data from disclosure is contrary to the text of the statute and lacks common sense. For example,

27 Title I provides that FISC orders, under certain conditions, “shall direct” recipients to assist the

28 Government “in such a manner as will protect [the] secrecy [of the acquisition],” 50 U.S.C.

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1 § 1805(c)(2)(B), and “maintain under security procedures approved by the Attorney General and

2 the [DNI] any records concerning [the acquisition] or the aid furnished,” id. § 1805(c)(2)(C).

3 Title VII contains similar provisions that may be included in directives issued thereunder. See 50

4 U.S.C. § 1881a(i)(1)(A), (B). These provisions are not limited, as Plaintiff contends, to “the

5 contents of specific FISA orders, their targets, and details of ongoing investigations.” SAC ¶ 83

6 (emphasis added). Instead, Congress instructs broadly that the “secrecy of the acquisition” must

7 be protected. The most natural reading of this statutory language is that the fact of the

8 acquisition—the existence of the FISC order or directive—must not be disclosed. Indeed, the

9 orders typically issued under Title I pursuant to Section 1805(c)(2)(B) expressly require

10 recipients “not to disclose to the targets or to any other person the existence of the order. . . or the

11 fact of any of the activities authorized [in the order].” Of course, the disclosure that a company

12 has received a certain number of FISC orders, by the plain meaning of the terms, would disclose

13 “the existence” of those orders. Titles III and IV of FISA, which also contain provisions

14 authorizing FISC orders protecting information from disclosure, likewise speak broadly of

15 protecting the “secrecy” of each acquisition—without limitation—and provide for Government

16 control of the security procedures under which information related to each acquisition is

17 maintained. See 50 U.S.C. § 1824(c)(2)(B), (C) (Title III); 50 U.S.C. § 1842(d)(2)(B) (Title IV).

18

Finally, Title V, the last provision of FISA that might be applicable here, imposes

19 nondisclosure obligations directly on recipients of FISC orders issued thereunder. Title V

20 provides: “No person shall disclose to any other person that the [FBI] has sought or obtained

21 tangible things pursuant to an order under [Title V of FISA].” 50 U.S.C. § 1861(d)(1). Once

22 again, protection for aggregate data falls well within the meaning of the statutory text. A

23 disclosure that a company received a specific number of orders would “disclose . . . that the

24 [FBI] has sought . . . tangible things pursuant to an order under” Title V of FISA as many times

25 as the number of orders disclosed. Id. And, as with the other four FISA provisions discussed

26 above, the nondisclosure requirement is not limited to “the contents of specific FISA orders, their

27 targets, and details of ongoing investigations.” SAC ¶ 83. Whether the specific terms of any

28 order have been violated may entail further examination by the Government and the issuing

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1 court, depending on what information is disclosed. But Plaintiff’s contention that no other

2 authority would apply to protect the information at issue is meritless on its face.

3

Indeed, Section 603 of the USA FREEDOM Act reinforces that Congress understands

4 aggregate data regarding receipt of national security process to be protected from disclosure. In

5 Section 603, Congress introduced the permissible bounds of disclosure by explaining: “A person

6 subject to a nondisclosure requirement accompanying [process] under [FISA] or a national

7 security letter may, with respect to such order, directive, or national security letter, publicly

8 report the following information using one of the following structures.” Section 603(a). While

9 Section 603(c) clarifies that the Government may, in its discretion, permit other forms of

10 reporting, the quoted language from Section 603(a) reflects that Congress understood other

11 formats of reporting aggregate data as being prohibited unless the Government took such actions.

12

Furthermore, apart from the statutory protections that shield the data in question from

13 disclosure, nothing prevents an Article III court from reinforcing with a court order other

14 protections against disclosure. Cf. In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005)

15 (“Absent restriction, courts have inherent power, subject to the Constitution and federal statutes,

16 to impose secrecy orders incident to matters occurring before them.”); In re Application of USA

17 for an Order Pursuant to 28 U.S.C. § 1651(a), --- F. Supp. 3d ---, 2019 WL 4619698 (D.D.C.

18 Aug. 6, 2019); In re Grand Jury Proceedings, 17 F. Supp. 3d 1033, 1035-36 (S.D. Cal. 2013).

19 Plaintiff cites no contrary authority; indeed, if there were a rule that prevented courts from

20 issuing such orders, the provisions of FISA that authorize FISC nondisclosure orders all would

21 amount to a nullity. Indeed, there is nothing anomalous about the presence of multiple legal

22 nondisclosure requirements overlapping to protect sensitive national security information.

23

Thus, Plaintiff’s challenges to statutory or judicially-imposed nondisclosure obligations,

24 if any, prohibiting the disclosure of classified aggregate data, fail as a matter of law.

25

CONCLUSION

26

For the foregoing reasons, and the reasons set forth in EAD Tabb’s classified and

27 unclassified declarations, the Court should grant Defendants’ renewed motion for summary

28 judgment and dismiss Plaintiff’s Second Amended Complaint.

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR

24

Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309 Filed 09/27/19 Page 31 of 31

1 Dated: September 27, 2019 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
DAVID L. ANDERSON United States Attorney
ANTHONY J. COPPOLINO Deputy Branch Director
/s/ Julia A. Heiman JULIA A. HEIMAN, Bar No. 241415 Senior Counsel CHRISTOPHER HEALY Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 julia.heiman@usdoj.gov Attorneys for Defendants

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR

25

Defs.’ Renewed Motion for Summary Judgment

Case 4:14-cv-04480-YGR Document 309-1 Filed 09/27/19 Page 1 of 22
Exhibit 1

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Case 4:14-cv-04480-YGR Document 309-2 Filed 09/27/19 Page 1 of 9

1 JOSEPH H. HUNT

2

Assistant Attorney General DAVID L. ANDERSON

3

United States Attorney ANTHONY J. COPPOLINO

4 Deputy Branch Director

5

JULIA A. HEIMAN Senior Counsel

6 CHRISTOPHER HEALY Trial Attorney

7 United States Department of Justice

8 Civil Division, Federal Programs Branch

9 P.O. Box 883 Washington, D.C. 20044

10 Telephone: (202) 616-8480

11

Facsimile: (202) 616-8470 Email: julia.heiman@usdoj.gov

12
Attorneys for Defendants 13
IN THE UNITED STATES DISTRICT COURT 14
FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 __________________________________________

16 TWITTER, INC.,

)

)

Case No. 14-cv-4480-YGR

17

)

Plaintiff,

)

18

)

19

v.

)

DEFENDANTS’

)

SEPARATE STATEMENT

20 WILLIAM P. BARR, United States

21

Attorney General, et al.,

)

OF UNDISPUTED FACTS

)

)

22

Defendants.

)

)

No Hearing Scheduled

23

)

24

) __________________________________________)

Hon. Yvonne Gonzalez Rogers

25

26

27

28

Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR Defendants’ Separate Statement of Undisputed Facts

 
 Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 1 of 32

1 MAYER BROWN LLP ANDREW JOHN PINCUS (Pro Hac Vice)
2 apincus@mayerbrown.com 1999 K Street, NW

3 Washington, DC 20006 Tel: (202) 263-3220 / Fax: (202) 263-3300

4 MAYER BROWN LLP

5 LEE H. RUBIN (SBN 141331) lrubin@mayerbrown.com

6 DONALD M. FALK (SBN 150256) dfalk@mayerbrown.com

7 SAMANTHA C. BOOTH (SBN 298852) sbooth@mayerbrown.com

8 Two Palo Alto Square, Suite 300 3000 El Camino Real

9 Palo Alto, CA 94306-2112 Tel: (650) 331-2000 / Fax: (650) 331-2060

10

Attorneys for Plaintiff Twitter, Inc.

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14 TWITTER, INC.,

Case No. 14-cv-4480-YGR

15 TWITTER’S NOTICE OF CROSS-

16

Plaintiff,

MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT;

17

v.

ALTERNATIVE MOTION FOR AN ORDER GRANTING CLEARED

18

COUNSEL ACCESS TO THE

19

WILLIAM P. BARR, United States Attorney General, et al.,

CLASSIFIED TABB DECLARATION Date: January 7, 2020

20

Time: 2:00 PM

21

Defendants.

Courtroom 1, Fourth Floor

22

Judge: Hon. Yvonne Gonzalez Rogers

23

24

25

26

27

28

TWITTER’S NOTICE OF CROSS-MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT

- Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 2 of 32

1

NOTICE OF CROSS-MOTION AND CROSS-MOTION

2

PLEASE TAKE NOTICE that, on January 7, 2020 at 2:00 p.m., or as soon thereafter as

3 counsel may be heard, at 1301 Clay Street, Oakland, CA 94612, in the Oakland Courthouse,

4 Courtroom 1 – Fourth Floor, before Judge Yvonne Gonzalez Rogers, Plaintiff Twitter, Inc.

5 (“Twitter”) will, and hereby does, move for an order granting summary judgment to Twitter on

6 claims set forth in the Second Amended Complaint or, in the alternative, granting Twitter access to

7 the Classified Declaration of Jay S. Tabb, Jr. (Dkt. No. 310), submitted in support of the

8 Government’s Renewed Motion for Summary Judgment (Dkt. No. 309). This motion is based on

9 this Notice of Motion and Motion, Twitter’s Memorandum of Points and Authorities, the

10 Declaration of Lee Rubin in Support thereof, Twitter’s Separate Statement of Undisputed Facts,

11 and Twitter’s Request for Judicial Notice, the pleadings on file with the Court, and any further

12 argument or briefing that may be presented prior to the Court’s decision on the Motion.

13

14 Dated: October 25, 2019

MAYER BROWN LLP

15

/s/ Lee H. Rubin

16

LEE H. RUBIN (SBN 141331)

lrubin@mayerbrown.com

17

SAMANTHA C. BOOTH (SBN 298852)

sbooth@mayerbrown.com

18

Two Palo Alto Square, Suite 300

3000 El Camino Real

19

Palo Alto, CA 94306-2112

Telephone: (650) 331-2000

20

Facsimile: (650) 331-2060

21

Attorneys for Plaintiff Twitter, Inc.

22

23

24

25

26

27

28

1

TWITTER’S NOTICE OF CROSS-MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT

Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 3 of 32

1

MAYER BROWN LLP ANDREW JOHN PINCUS (Pro Hac Vice)

2

apincus@mayerbrown.com 1999 K Street, NW

3

Washington, DC 20006 Tel: (202) 263-3220 / Fax: (202) 263-3300

4 MAYER BROWN LLP

5

LEE H. RUBIN (SBN 141331) lrubin@mayerbrown.com

6

DONALD M. FALK (SBN 150256) dfalk@mayerbrown.com

7

SAMANTHA C. BOOTH (SBN 298852) sbooth@mayerbrown.com

8

Two Palo Alto Square, Suite 300 3000 El Camino Real

9

Palo Alto, CA 94306-2112 Tel: (650) 331-2000 / Fax: (650) 331-2060

10 Attorneys for Plaintiff Twitter, Inc.

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14 TWITTER, INC.,

Case No. 14-cv-4480-YGR

15

TWITTER’S MEMORANDUM OF

16

Plaintiff,

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’

17

v.

MOTION FOR SUMMARY JUDGMENT, AND IN SUPPORT OF (1) ITS CROSS-

18 19

WILLIAM P. BARR, United States Attorney General, et al.,

MOTION FOR SUMMARY JUDGMENT & (2) ITS RENEWED MOTION FOR ACCESS TO CLASSIFIED MATERIALS

20

Date: January 7, 2020 Time: 2:00 p.m.

21

Defendants.

Courtroom 1, Fourth Floor

22

Judge: Hon. Yvonne Gonzalez Rogers

23

24

25

26

27

28

TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION - Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 4 of 32

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 MEMORANDUM OF POINTS & AUTHORITIES.......................................................................1 STATEMENT OF ISSUES TO BE DECIDED ..............................................................................1
5 INTRODUCTION ...........................................................................................................................1
6 FACTUAL AND PROCEDURAL HISTORY ...............................................................................3

7 ARGUMENT ...................................................................................................................................5

8

A. Twitter Is Entitled to Summary Judgment (and the Government’s Motion Should

Be Denied) Because the Government Has Not Satisfied Strict Scrutiny. ..........................5

9

1. As a Content-Based Prior Restraint, the Government’s Censorship Is

10

Subject to the Pentagon Papers Strict Scrutiny Standard. .........................................5

11

2. The Government Cannot Satisfy Strict Scrutiny. .......................................................7

B. Independently, Twitter Is Entitled to Summary Judgment Because the

12

Government’s Prior Restraint Lacked All of Freedman’s Procedural Safeguards. .........14

13

1. Twitter Adequately Pled that the Government’s Censorship of Its 2014

Transparency Report Was an Unconstitutional Prior Restraint. ...............................15

14

2. Freedman Applies to the Executive’s Discretionary Classification of Speech

15

about the Receipt of National Security Process. .......................................................16

16

a. The Ninth Circuit’s Dictum Is Neither Controlling Nor Consistent with Supreme Court Authority....................................................................................17

17

b. The FISA Process Does Not Save the Government’s Prior Restraint on

18

Aggregate Reporting from Constitutional Infirmity. ..........................................20

3. Twitter Is Entitled to an Injunction Against Enforcement of the

19

Government’s Procedurally Unconstitutional Censorship Authority. ......................22

20

C. Independently, the Government’s Motion for Summary Judgment Should Be

Denied Under Federal Rule of Civil Procedure 56(d)......................................................23

21 CONCLUSION..............................................................................................................................25

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 3 Cases

Page(s)

4

Al-Haramain Islamic Found. Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) ...................................................................................................6

5 Am. Timber & Trading Co. v. First Nat. Bank of Or.,

6

690 F.2d 781 (9th Cir. 1982) ...................................................................................................15

7 Berger v. City of Seattle,

8

569 F.3d 1029 (9th Cir. 2009) (en banc) ...................................................................................5

9

Butterworth v. Smith, 494 U.S. 624 (1990).....................................................................................................18, 19, 20

10 Crull v. GEM Ins. Co.,

11

58 F.3d 1386 (9th Cir. 1995) ...................................................................................................16

12 Doe v. Gonzales, 386 F. Supp. 2d 66 (D. Conn. 2005) ..........................................................................................7
13

14

Doe v. Mukasey, 549 F.3d 861 (2d. Cir. 2008)........................................................................................19, 20, 22

15 Forsyth Cty. v. Nationalist Movement,

16

505 U.S. 123 (1992)...................................................................................................................7

17 Freedman v. Maryland,

380 U.S. 51 (1965)........................................................................................................... passim 18

19

Garcia v. Google, Inc., 786 F.3d 727 (9th Cir. 2015) .....................................................................................................7

20 Microsoft Corp. v. U.S. Dep’t of Justice,

21

233 F. Supp. 3d 887 (W.D. Wash. 2017).................................................................................14

22 N.Y. Times Co. v. United States,

403 U.S. 713 (1971)......................................................................................................... passim

23

In re Nat’l Sec. Letter,

24

863 F.3d 1110 (9th Cir. 2017) ......................................................................................... passim

25 In re Nat’l Sec. Letter,

26

930 F. Supp. 2d 1064 (N.D. Cal. 2013) ...................................................................................23

27 Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)...................................................................................................................6
28

ii TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION - Case No. 14-cv-4480-YG

Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 6 of 32

1

TABLE OF AUTHORITIES

2

(continued)

Page(s)

3

R.A.V. v. City of St. Paul,

4

505 U.S. 377 (1992)...................................................................................................................7

5 Reed v. Town of Gilbert,

6

135 S. Ct. 2218 (2015) ...............................................................................................................5

7

Rother v. Lupenko, 515 F. App’x. 672 (9th Cir. 2013) ...........................................................................................16

8 Se. Promotions, Ltd. v. Conrad,

9

420 U.S. 546 (1975)...........................................................................................................14, 17

10 In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders,

11

562 F. Supp. 2d 876 (S.D. Tex. 2008) .......................................................................................7

12

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).............................................................................................................18, 19

13 Smith v. Butterworth,

14

866 F.2d 1318 (11th Cir. 1989) ...............................................................................................18

15 Thomas v. Chi. Park Dist.,

16

534 U.S. 316 (2002).................................................................................................................22

17

United States v. Marchetti, 466 F.2d 1309 (4th Cir.1972) ..................................................................................................20

18 United States v. N.Y. Times Co.,

19

328 F. Supp. 324 (S.D.N.Y. 1971).............................................................................................6

20 United States v. Snepp, 897 F.2d 138 (4th Cir. 1990) ...................................................................................................20
21

22

Vance v. Universal Amusement Co., 445 U.S. 308 (1980).................................................................................................................17

23 In re Washington Post Co.,

24

807 F.2d 383 (4th Cir. 1986) .....................................................................................................7

25 Statutes, Rules and Regulations

26 18 U.S.C. § 3511(b)(1)(B) .............................................................................................................23

27 18 U.S.C. § 3511(b)(1)(C) .............................................................................................................23
28
iii TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION
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1

TABLE OF AUTHORITIES

2

(continued)

Page(s)

3 50 U.S.C. § 1801(h) .......................................................................................................................21
4

50 U.S.C. § 1805(a) .......................................................................................................................21 5

6 50 U.S.C. § 1874.................................................................................................................... passim

7 50 U.S.C. § 1874(c) ............................................................................................................... passim

8 50 U.S.C. § 1881a(i)(1)(B) ............................................................................................................21

9 Fed. R. Evid. 902(5).........................................................................................................................9

10 Federal Rule of Civil Procedure 56(d)...................................................................................1, 3, 23

11 Federal Rule of Evidence 801(d)(2) ................................................................................................9

12 Federal Rule of Evidence 803(8) .....................................................................................................9

13 Foreign Intelligence Surveillance Act of 1978 (“FISA”) ................................................................3

14 Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective

15

Discipline Over Monitoring Act of 2015 (“USAFA”) .................................................... passim

16 Other Authorities

17 Twitter’s 2014 Transparency Report ..................................................................................... passim

18

19

20

21

22

23

24

25

26

27

28
iv TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION
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1

MEMORANDUM OF POINTS & AUTHORITIES

2

STATEMENT OF ISSUES TO BE DECIDED

3

A. Is Twitter entitled to summary judgment on its First Amendment claims, because

4 the Government cannot justify its censorship of Twitter’s 2014 draft Transparency Report under

5 strict scrutiny?

6

B. Alternatively, is Twitter entitled to summary judgment because the restriction on

7 its speech was a prior restraint, yet neither the Government’s classification criteria, nor the

8 USAFA provision authorizing such discretionary classification, comports with Freedman v.

9 Maryland?

10

C. At minimum, should the Government’s motion for summary judgment be denied

11 under Federal Rule of Civil Procedure 56(d), in order to provide Twitter’s cleared counsel access

12 and a meaningful opportunity to respond to the classified evidence the Government claims is

13 dispositive of Twitter’s claims?

14

INTRODUCTION

15

The Government’s ongoing censorship of now six-year-old aggregate data in Twitter’s

16 2014 Transparency Report is constitutionally unsustainable. The Government cannot show—as

17 it must under strict scrutiny—that those limited disclosures would cause any harm whatsoever to

18 national security, much less the kind of “grave or imminent risk” that is necessary to justify a

19 content-based prior restraint on speech about the operation of government. Unable to show any

20 harm that could result from the specific disclosures contained in Twitter’s Transparency Report,

21 the Government resorts to sweeping assertions about national security harms that could flow

22 from hypothetical, future disclosures by Twitter and other communications providers, over an

23 extended period of time.

24

The Government’s exaggerated claims do not justify suppression of Twitter’s proposed

25 speech. Most fundamentally, they ignore the governing First Amendment standard—which

26 requires an “individualized” assessment of the speaker and speech at issue. The Government

27 cannot carry its burden of showing that the speech in Twitter’s 2014 Transparency Report would

28 harm national security by relying on harms that might result from other hypothetical future
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1 disclosures. Additionally, the Court should not credit the Government’s mere speculation that a

2 ruling authorizing publication of the 2014 Transparency Report would necessarily lead to broad-

3 scale disclosures about other companies’ receipt of national security process. Even if other

4 companies sought to make similar disclosures, courts would not necessarily grant those requests;

5 numerous attributes potentially distinguish the speech here from future publication requests—

6 including Twitter’s size, its unique role in society, the age of the data Twitter seeks to publish,

7 and other information about the Government’s use (and Twitter’s receipt) of national security

8 process that is already in the public domain.

9

Independently, Twitter is entitled to summary judgment on its claims because the

10 Government does not (and cannot) meaningfully dispute that its discretionary classification of

11 Twitter’s speech occurred without the procedural safeguards required by Freedman v. Maryland.

12 Neither the classification guidelines that the Government applied, nor the statutory authority

13 under which that classification review was conducted (50 U.S.C. § 1874(c)), provides a

14 mechanism for a recipient of national security process to obtain expedited, government-initiated

15 judicial review of a restraint on aggregate reporting, as required by Freedman.

16

The Government’s attempts to avoid Freedman are unavailing. It is bedrock law that in

17 considering a First Amendment challenge to a Government-imposed prior restraint, a Court must

18 apply strict scrutiny and consider both the substantive and procedural constitutionality of the

19 Government’s censorship. Twitter’s claims that the Government’s classification decision was an

20 “unconstitutional prior restraint” (Counts I and II) thus incorporated its challenge to the absence

21 of procedural safeguards (under Freedman) as a matter of law. Consistent with this legal

22 principle, the Court specifically addressed the Government’s lack of adherence to Freedman in

23 its original order denying summary judgment and in its order denying reconsideration. And the

24 Government’s attempts to avoid hornbook law by arguing that Freedman does not apply to its

25 censorship of Twitter here are similarly unpersuasive.

26

Both these defects—substantive and procedural—independently render the Government’s

27 censorship of Twitter’s 2014 Transparency Report unconstitutional. Twitter’s motion for

28 summary judgment should be granted on this basis. At absolute minimum, though, the
2 TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION
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1 Government’s competing motion should be denied under Federal Rule of Civil Procedure 56(d).

2 The Government has at every turn sought to thwart Twitter’s access to key discovery—including

3 the opportunity for Twitter to respond (through cleared counsel) to the classified evidence on

4 which the Government now relies in seeking judgment on Twitter’s claims.

5

FACTUAL AND PROCEDURAL HISTORY

6

The speech restriction at issue in this case dates back to April 1, 2014, when Twitter

7 submitted to the FBI for review a draft Transparency Report describing the amount of national

8 security process Twitter had received in 2012 and 2013 (the “Transparency Report”). In

9 particular, the Transparency Report sought to disclose the total number of National Security

10 Letters (“NSLs”) and orders issued pursuant to the Foreign Intelligence Surveillance Act of 1978

11 (the “FISA”) that Twitter had received in the second half of 2013—now more than six years ago.

12 Rubin Decl. ¶ 2, Ex. 4 (“unclassified” version). Twitter also sought permission to disclose that it

13 had received “zero” of a particular kind of request, whenever that might be the case. Id. Twitter

14 sought in publishing the Transparency Report to participate in a public debate and respond to

15 concerns regarding then-recent revelations about the scope of NSA surveillance.

16

Five months later, the FBI informed Twitter that the Transparency “[R]eport was

17 “classified” to the extent it contained the “specific numbers of orders received, including

18 characterizing the numbers in fractions or percentages” and to the extent it “br[oke] out

19 particular types of process received” (i.e., FISA orders versus NSLs). Id. Ex. 3. As justification,

20 the FBI’s letter stated only that such data was “inconsistent with the January 27th framework”—

21 referring to the reporting framework adopted by the Director of National Intelligence (“DNI”) on

22 January 27, 2014, which authorized Electronic Communications Service Providers (“ECSPs”)

23 like Twitter to disclose the amount of national security process they received in certain broad

24 bands (e.g., 0-250 or 0-500). Id. The FBI later issued an “unclassified” version of Twitter’s

25 report with all numerical data (and narrative descriptions of that data) redacted. Id. Ex. 4.

26 Twitter filed suit in late 2014.

27

In 2015 and while this case was pending, Congress passed the Uniting and Strengthening

28 America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015
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1 (“USAFA”). The USAFA confirmed that recipients of individual FISA orders and NSLs could

2 lawfully disclose aggregate data about their receipt of those orders in the broad reporting bands

3 codified in 50 U.S.C. § 1874(a) (part of the FISA).1 However, the USAFA makes clear that the

4 bands are permissive—nothing prohibits the Executive from “agreeing to the publication of

5 information” about an ECSP’s receipt of national security process in a “form” other than the

6 safe-harbor bands. Id. § 1874(c).

7

Twitter filed its currently operative complaint (“SAC”) on May 24, 2016. Dkt. No. 114.

8 The SAC alleged, in pertinent part, that the Government’s “decision to censor Twitter’s

9 transparency report” was unconstitutional—because it imposed both a “content-based restriction

10 on [Twitter’s] speech” and a “prior restraint.” See SAC pp. 17–21. The SAC sought, inter alia,

11 a declaratory judgment that “Twitter has a First Amendment right to release the entire report

12 publicly in unredacted form.” Prayer for Relief ¶ A(ii).

13

In November 2016, the Government moved for summary judgment. Dkt. No. 145. In an

14 order dated July 6, 2017 (Dkt. No. 172), the Court denied that motion, ruling, in pertinent part,

15 that: (1) the speech restriction here is a content-based, prior restraint on the modern equivalent of

16 a public square (id. at 2, 14); (2) the restraint was subject to the Pentagon Papers strict scrutiny

17 standard, which requires the Government to show that Twitter’s proposed disclosures “would

18 pose a clear and present danger or imminent harm to national security” (id. at 2, 14–15, 21); (3)

19 the Classified Declaration of Executive Assistant Director Michael Steinbach (“Classified

20 Steinbach Declaration”) failed to carry the Government’s burden (id. at 17); and (4) “[n]either

21 the Government’s classification decision” nor any other specified statutory provisions provide

22 “any procedural safeguards to ensure that the decision [to restrict speech] is one that comports

23 with the appropriate high level of scrutiny warranted by such prior restraints.” Id. at 18–19.

24

The Government thereafter moved for reconsideration of the Court’s denial of its

25 summary judgment motion on the basis of the Ninth Circuit’s intervening In re NSL decision.

26 1 The USAFA also ended the NSA’s bulk collection of Americans’ telephone data, revised the
27 NSL law to incorporate a mechanism for expeditious, government-initiated judicial review of individual NSL nondisclosure obligations, and added annual public reporting obligations about
28 the Executive’s use of national security process.
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1 On November 28, 2017, the Court denied that motion, too, finding that In re NSL only confirmed

2 the Court’s bases for its prior summary judgment ruling. Dkt. No. 186.

3

Now, nearly three years later, the Government has renewed its motion for summary

4 judgment. That motion is as insupportable today as it was three years ago—if not more so, given

5 that the information at issue is now even older and thus the Government’s claim that its

6 disclosure would harm national security is even more untenable.

7

The Court should accordingly resolve this case once and for all by denying the

8 Government’s Renewed Motion for Summary Judgment, and granting Twitter’s Cross-Motion

9 for the same. In particular, Twitter is entitled to a ruling (1) authorizing publication of the 2014

10 Transparency Report and (2) enjoining the Government from restraining Twitter’s disclosure of

11 the aggregate amount of national security process it has received until the Government adopts

12 procedural safeguards for the censorship of this information that comport with Freedman v.

13 Maryland.

14

ARGUMENT

15

A. Twitter Is Entitled to Summary Judgment (and the Government’s Motion Should

Be Denied) Because the Government Has Not Satisfied Strict Scrutiny. 16
The Government cannot carry its burden under strict scrutiny of showing that Twitter

17 may constitutionally be prohibited from publishing aggregate data about the amount of national

18 security process it received more than six years ago.

19

1. As a Content-Based Prior Restraint, the Government’s Censorship Is Subject to

20

the Pentagon Papers Strict Scrutiny Standard.

21

The Government’s Motion takes issue with both this Court’s and the Ninth Circuit’s

22 application of strict scrutiny to restraints on speech about the Government’s use of NSLs and

23 FISA orders. Mot. at 14. But a long line of precedent requires strict scrutiny of the speech

24 restrictions here—not only because they are content-based,2 but also because they impose a

25 2 “The Government’s restrictions on Twitter’s speech are [indisputably] content-based.” Dkt. 26 No. 172, at 2. They “target[]” Twitter’s speech specifically “because of the topic discussed or
the idea or message expressed,” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015); Berger v. 27 City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (en banc)—namely, aggregate numerical
data about Twitter’s receipt of compulsory national security process that does not conform with 28 the Government’s preapproved reporting bands in 50 U.S.C. § 1874(a).
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1 viewpoint-based prior restraint on Twitter’s ability to contribute to public debate about the

2 Government’s use of national security process. Accordingly, as the Court has already correctly

3 recognized, the Government’s prior restraint is “presumptively unconstitutional and may be

4 justified only if the [G]overnment” can show that Twitter’s proposed speech “would pose a clear

5 and present danger or imminent harm to national security.” Dkt. No. 172, at 2, 7; N.Y. Times Co.

6 v. United States, 403 U.S. 713, 714 (1971) [hereinafter “Pentagon Papers”]; Nebraska Press

7 Assn. v. Stuart, 427 U.S. 539, 589 (1976) (prior restraints are “the essence of censorship”).

8

The Government cannot carry that burden simply by asserting that the information was

9 properly “classified under the Executive Order.” Dkt. No. 172, at 16; Al-Haramain Islamic

10 Found. Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (“Simply saying ‘military secret,’

11 ‘national security,’ . . . ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten

12 our nation is insufficient” to justify a content-based restraint). Rather, narrow tailoring requires

13 the Government to show—based on “an individualized analysis of” the speaker and speech at

14 issue (In re Nat’l Sec. Letter, 863 F.3d 1110, 1125 (9th Cir. 2017))—that the “disclosure . . . will

15 surely result in direct, immediate, and irreparable damage to our Nation or its people.” Pentagon

16 Papers, 403 U.S. at 730 (Stewart. J, concurring).3

17

Applying that standard in Pentagon Papers, the Supreme Court held that the government

18 failed to carry that burden with respect to a far more detailed “study” on the United States’

19 engagement in Vietnam. Id. at 714. The Court found the restraint on publication

20 unconstitutional, even though the United States was still engaged in Vietnam at the time of

21 publication, and the study involved material that had been classified as “Top Secret” and

22 “Secret.” United States v. N.Y. Times Co., 328 F. Supp. 324, 326 (S.D.N.Y. 1971).

23

As this Court has recognized, that standard applies here because, with respect to Twitter’s

24 publication of its Transparency Report, Twitter is akin to the “speakers in public fora,

25 distributors of literature, or exhibitors of movies” to whom courts have historically conferred the

26

27 3 This standard, which derives from Justice Stewart’s concurrence, is controlling because Justice

28

Stewart’s rationale offered the narrowest grounds (i.e., the least expansive view of the First Amendment) that still supported the majority holding.

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1 highest First Amendment protection. Dkt. No. 172, at 14–15; see, e.g., Pentagon Papers, 403

2 U.S. at 725–26 (Brennan, J., concurring) (“[T]he First Amendment tolerates absolutely no prior

3 judicial restraints of the press predicated upon surmise or conjecture that untoward consequences

4 may result.”); In re Washington Post Co., 807 F.2d 383, 391–92 (4th Cir. 1986). The same

5 interests are implicated here, where “Twitter acts as the modern, electronic equivalent of a public

6 square.” Dkt. No. 172, at 14. Furthermore, the content of Twitter’s speech implicates a matter

7 of significant public concern: “[D]isclosure of the existence and number of surveillance orders is

8 important to an informed public” since suppression of this information tends to “‘conceal from

9 the public the actual degree of government intrusion that current legislation authorizes.’” Dkt.

10 No. 172, at 16 & n.7 (quoting In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562

11 F. Supp. 2d 876, 882 (S.D. Tex. 2008)); see also Pentagon Papers, 403 U.S. at 717 (Black, J.,

12 joined by Douglas, J., concurring) (First Amendment was intended to prevent the government

13 from suppressing newsworthy speech that “reveal[s] the workings of government” and to

14 “prevent[] … the government from deceiving the people.”); Garcia v. Google, Inc., 786 F.3d

15 727, 730 (9th Cir. 2015). And finally, suppression of Twitter’s ability to speak about this topic

16 has the practical effect of suppressing “‘a particular point of view’”—“the view that certain

17 federal investigative powers impose profoundly on individual civil liberties to the point that they

18 violate our constitution.” Doe v. Gonzales, 386 F. Supp. 2d 66, 75 (D. Conn. 2005) (quoting

19 Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130–31 (1992)); R.A.V. v. City of St. Paul,

20 505 U.S. 377, 392 (1992).

21

All of these factors amplify Twitter’s (and the public’s) First Amendment interests in the

22 speech the Government seeks to restrict, and confirm the need for the most exacting standard of

23 review here. Accordingly, the more robust Pentagon Papers standard applies.

24

2. The Government Cannot Satisfy Strict Scrutiny.

25

The Government cannot carry its heavy burden of showing, based on “an individualized

26 analysis” of Twitter and the restricted speech, that disclosure will “surely result in direct,

27 immediate, and irreparable damage to our Nation or its people.” Pentagon Papers, 403 U.S. at

28 730. To prove that, the Government would have to show that even taking into account key
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1 factual considerations including the “size of [Twitter’s] customer base,” In re NSL, 863 F.3d at

2 1125, the age and aggregated nature of the proposed numerical reporting, and other quantitative

3 information already in the public domain about the Government’s use of national security

4 process, the disclosure of the specific information in the Transparency Report would cause

5 “imminent harm to national security,” Dkt. No. 172, at 2.

6

Though Twitter has yet to be given access to the Classified Declaration of Jay S. Tabb, Jr.

7 (“Classified Tabb Declaration”) submitted with the Government’s current motion (yet another

8 factor requiring denial of that motion, see infra, pp. 23–25), the reasons offered in the

9 Unclassified Tabb Declaration fall well short of that demanding standard and strongly suggest

10 that the classified submission does too.

11

To start, the Unclassified Tabb Declaration makes clear that the Government’s proffered

12 justifications are not tethered to Twitter’s proposed disclosures, and that they ignore the

13 information already in the public domain about Twitter’s receipt of national security process.

14 The Government claims, for example, that “disclosure of the information Twitter seeks to

15 publish”—aggregate statistics about its receipt of national security process in 2012 and 2013—

16 would provide “highly valuable insights into where and how the United States is or is not

17 deploying its investigative and intelligence resources” and whether Twitter is a “secure”

18 platform. Dkt. No. 309-1, ¶ 7. But it is hard to see how that could be so. Not only is the

19 information at issue over six years old, but adversaries certainly know (because it is a matter of

20 public record) that Twitter receives national security process, as well as the types of information

21 that the Government seeks with that process.

22

As of April 2019, Twitter had published 14 individual NSLs dating back to 2009,

23 samples of which were introduced into evidence in connection with the parties’ briefing on the

24 Government’s state secrets claim. See Rubin Decl. Ex. 13. Those disclosures were far more

25 comprehensive than the aggregate data here—revealing not only the fact that the NSLs had been

26 received, but also their content. Id. For example, the NSLs disclosed the “types of information”

27 the Government sought from Twitter with respect to particular accounts, such as the date the

28 account was opened, associated email and physical addresses, billing information, Internet
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1 Protocol (“IP”) address and Uniform Resource Locator (“URL”) information, and the names of

2 all “upstream and downstream providers facilitating th[e] account’s communications.” See, e.g.,

3 id. Ex. 13 (Islay Decl., Exs. A–C, at 3).

4

Disclosure of the total number of NSLs and FISA orders Twitter received more than six

5 years ago would tell the public far less about the extent to which Twitter is (or was) a “safe”

6 platform and the “extent, scope, and reach of the Government’s national security collection

7 capabilities” than the public already knows.

8

Nor could disclosure of the mere fact of whether Twitter received any FISA process

9 during 2012 and 2013 tell adversaries anything meaningful about the Government’s national

10 security collection capabilities (i.e., to the extent the Government claims that fact would permit

11 adversaries to piece together harmful, nonpublic information about its collection capabilities as

12 to Twitter). The Government’s arguments are premised on the notion that the type of

13 information that it can obtain under each FISA title is a secret; it is not. The statutes themselves

14 indicate whether the Government can collect content or non-content information, as well as the

15 types of records it may target. Moreover, as the Government has observed, the FISA is not

16 monolithic: Title I permits electronic surveillance; Title III permits physical searches; Title IV

17 permits the use of pen register and trap and trace devices; and Title V permits the collection of

18 business records, including call detail records. Thus, Twitter’s proposed disclosure of the total

19 number of FISA orders it has received across all titles would not, in fact, permit adversaries to

20 identify the type of information that was sought in those orders (if any).

21

The Government’s argument further ignores the detailed information already in the

22 public domain as a result of annual reporting by the Administrative Office of the United States

23 Courts (“AOUSC”), the U.S. Department of Justice Office of Legal Affairs (“OLA”) and the

24 Office of the Director of National Intelligence (“ODNI”). See RJN, Exs. A–N.4 These reports,

25

26 4 These annual government reports are judicially noticeable. See Twitter’s Request for Judicial
27 Notice (“RJN”) filed concurrently herewith. And as government documents, they are selfauthenticating as a “publication purporting to be issued by a public authority.” Fed. R. Evid.
28 902(5). Independently, the Government’s reports are admissible as opposing party admissions
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1 both individually and collectively, already tell adversaries far more about the Government’s

2 collection capabilities and how the Government uses its authority under various specific FISA

3 titles than Twitter’s far higher-level disclosures could. For example, for each year since at least

4 2014,5 the AOUSC has disclosed the exact number of DOJ applications made, and how many of

5 those applications were granted, modified, denied in part, or denied in full—both in the

6 aggregate and broken down by specific sections of the FISA. See, e.g., RJN Ex A. at 3, Exs. B–

7 D, at 4 (AOUSC reporting charts). The ODNI’s reporting further discloses—again, for specific

8 sections of the FISA—the total number of orders issued, as well as the exact number of targets

9 covered by those orders, the number of unique identifiers used to collect information about those

10 targets, and (in the context of business records sought under FISA Title V) the number of call

11 detail records collected and stored by the NSA. See, e.g., RJN Exs. E–I. The ODNI reporting

12 also provides details about how collection works under different FISA provisions and the types

13 of information that is targeted. See, e.g., RJN Ex. H, at 4–12; Ex. E, at 1–2, Ex. F, at 1–2.6

14

In sum, a highly generalized disclosure that Twitter received over six years ago a

15 specified number of orders under the entire FISA statutory scheme—which does not identify the

16 precise authority the orders (if any) were issued under—could not possibly tell adversaries

17 anything beyond what they can already discern from public information about the Government’s

18 collection capabilities.

19

The Government’s remaining efforts to justify its suppression of Twitter’s speech rest on

20 the straw man that Twitter’s claim constitutes a facial attack on the USAFA safe-harbor bands.

21 under Federal Rule of Evidence 801(d)(2), and as “[a] record or statement of a public office” that 22 “sets out … the office’s activities” under Rule 803(8).

23

5 Much of this reporting is required by the USAFA, and therefore began to be published in 2015 (covering the year 2014). However, the DOJ has been publicly reporting regarding its foreign

24 surveillance activities since 1996. See https://www.justice.gov/nsd/nsd-foia-library .

25

6 For example, FISC orders typically authorize surveillance of specific “targets,” which may be “an individual person, a group, or an entity … or a foreign power that possesses or is likely to

26 communicate foreign intelligence information.” RJN Ex. E, at 2. “Under Section 702,” however, “the FISC issues a single order approving certifications that describe categories of

27 foreign intelligence information to be acquired,” id. Ex. F, at 1–2 (emphasis in original), through

28

the “‘tasking’ [of] selectors…. [i.e.,] specific communications facilities assessed to be used by a target (e.g., an email address or telephone number).” Id. Ex. E, at 2.

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1 In particular, the Government contends that Twitter’s proposed disclosures over time would

2 permit adversaries to glean valuable macro trends regarding the Government’s overall use of

3 national security surveillance—including about “incremental increases or decreases in collection

4 over time” (Dkt. No. 309-1, ¶ 17). This argument has nothing to do with the aggregate reporting

5 in the Transparency Report and, in any event, suffers from multiple defects.

6

Perhaps most fundamentally, those arguments ask the Court to consider the potential

7 national security implications of all ECSPs publishing similar data over an extended period of

8 time. But the question before the Court in this motion is far narrower—whether publication of

9 one set of data from 2012 and 2013 by Twitter would result in grave and imminent harm to the

10 United States, given the unique attributes of Twitter and its speech, and the information already

11 in the public domain.7 On that discrete issue, the Government cannot carry its burden.

12

The Government seeks to justify its restraint on Twitter’s speech by pointing to harm that

13 could result from hypothetical aggregate disclosures in the future by all ECSPs. But that entirely

14 ignores that governing law requires an “individualized assessment” of any proposed disclosure

15 about a provider’s receipt of national security process. It also incorrectly speculates that an order

16 permitting publication of the now six- to seven-year-old information in Twitter’s Transparency

17 Report would trigger an avalanche of requests by other providers to publish similar information,

18 and that courts would necessarily grant all those requests. However, the Government has offered

19 no evidence whatsoever (and there is no reason to believe) that either assumption is correct.

20

Even if the Government were to be inundated with publication requests (a doubtful

21 proposition),8 the speech before the Court bears numerous unique attributes that could readily

22

23

7 To be sure, the SAC also seeks a declaration that similar restrictions on reporting in later transparency reports would be unconstitutional. But presently, Twitter is opposing and seeking

24 summary judgment on the basis that the Government’s prior restraint of its 2014 Transparency Report is unconstitutional, as the Government cannot show that each of the redactions therein

25 would result in “direct, immediate, and irreparable damage to our Nation,” and because they

were imposed without the procedural safeguards required for systems of prior restraint. 26
8 The Government’s speculation (Dkt. No. 309-1, ¶ 20) also ignores the significant expense to an

27 ECSP of challenging nondisclosure obligations, even if the Government were to adopt—as

28 Twitter contends it must—a Freedman-compliant method to bring such a challenge.

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1 distinguish it from a future publication request—including, but not limited to, the size of

2 Twitter’s user base, Twitter’s unique role in publishing its reports, and the age of the data Twitter

3 seeks to publish. If, for example, an ECSP was lesser known, had not already revealed itself to

4 be a recipient of national security process, or had a materially smaller user base, the Government

5 might be able to show that disclosures similar to those Twitter seeks to make here could reveal

6 harmful information (e.g., that a platform that adversaries thought was safe was in fact a target of

7 surveillance, or that a significant portion of the users on that platform were under surveillance).

8 Alternatively, if a speaker sought to publish more recent or more granular information—such as

9 total orders received, broken down by specific FISA provisions—those factors, too, might permit

10 the Government to show harm to national security in another case. It is even possible that a

11 court could consider the impact of any prior approved disclosures to determine whether, when

12 combined with the proposed new disclosures, that new information would result in grave and

13 imminent harm to national security. But none of these hypothetical considerations about what

14 may or may not be restricted in the future should impact the Court’s individualized assessment of

15 the harm that would result from the disclosure of the Transparency Report.

16

Second, the Government’s arguments that the revelation of macro trends would harm

17 national security ignores that multiple government entities already publish far more up-to-date,

18 annual data about the Executive’s use of the FISA and NSLs. RJN, Ex. I (2018 ODNI Report);

19 see also RJN Exs. E–H. As discussed above, the ODNI since 2015 has been publicly reporting

20 about the estimated total number of orders issued and targets targeted, respectively, under each

21 Title of the FISA. See generally id. These reports—both individually and collectively—already

22 show the kinds of changes in the Government’s enforcement priorities over time that the

23 Government claims cannot be revealed without serious harm to national security. For example,

24 the total number of orders issued under FISA Title IV (authorizing pen registers and trap and

25 trace devices) has fallen from 319 targets in 2013 to only 29 targets in 2018. Id. Ex. I, at 24.

26 Over the same time period, the number of persons targeted under FISA Section 702, which

27 broadly authorizes surveillance of non-U.S. targets by “‘tasking’ selectors (e.g., telephone

28 numbers and email addresses),” id. at 10, has risen from 89,138 in 2013 to 164,770 in 2018, id.
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1 at 13. In assessing the Government’s claim that any disclosures which reveal macro trends about

2 its use of national security process cause grave and imminent harm to national security, the Court

3 should take into account the macro trends the Government itself has already disclosed (in

4 addition to the unique attributes of Twitter’s speech).

5

At bottom, the Government’s current attempt to justify its restraint by reference to the

6 harm that might occur if all companies abandoned the USAFA reporting bands is but a

7 repackaged version of the Government’s original reliance on the reporting bands. That argument

8 fails because it effectively reads 50 U.S.C. § 1874(c) out of the statute.

9

Likewise, the limited evidence available to Twitter belies the Government’s attempt to

10 recast its reliance on the bands as any sort of individualized inquiry. Despite Twitter’s claim that

11 it was not “similarly situated” to other ECSPs, Rubin Decl., Ex. 2, the FBI justified its

12 classification decision in September 2014 based solely on the grounds that Twitter’s proposed

13 disclosures were “inconsistent” with the governing reporting bands and would “go beyond what

14 the government has permitted other companies to report,” id. Ex. 3. And the Government

15 offered materially identical reasons for denying similar requests by Facebook, Microsoft, Apple,

16 AOL, and Yahoo in 2013. Id. Exs. 6–10. Indeed, a letter sent to AOL in June 2013 still includes

17 placeholders for “X Company” and “ADDRESS,” further underscoring that the Government was

18 sending the same boilerplate letter to all ECSPs, with only the company name changed. See id.

19 Ex. 9. That treatment of the USAFA bands as a rigid ceiling confirms that the Government has

20 never engaged in the kind of individualized analysis of proposed aggregate reporting that strict

21 scrutiny demands. Nor does EAD Tabb’s Unclassified Declaration contain even a hint that the

22 Government is conducting an individualized assessment of Twitter’s Transparency Report—

23 indeed, the declaration contains no analysis of how the addition of this six- to seven-year-old

24 aggregate data into the public domain would place the country’s security in grave danger.

25

Finally, the absence of any durational limitation on the Government’s restraint

26 underscores the lack of narrow tailoring here. Indeed, in upholding restraints on disclosure of

27 NSLs as narrowly tailored, the Ninth Circuit highlighted that NSLs were subject to the

28 Government’s “Termination Procedures”—which require periodic Government re-review of the
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1 necessity of nondisclosure—and those procedures were further “supplemented by the availability

2 of [Freedman-compliant] judicial review.” In re NSL, 863 F.3d at 1126–27. As this Court has

3 recognized, no similar limitations on the duration of aggregate reporting exist. Dkt. No. 186, at

4 9. Moreover, the Government has conceded that it has discretion to limit the temporal scope of

5 prohibitions on public aggregate reporting on a case-by-case basis, but that it has never exercised

6 that discretion to limit the temporal scope of its restrictions on aggregate reporting outside of the

7 USAFA bands. Rubin Decl. Ex. 5 (Responses to Interrogatory Nos. 9–11).

8

For all of these reasons, the Government has not carried its burden of showing that—

9 under an “individualized analysis” of Twitter, the speech at issue, and the information already in

10 the public domain—disclosure of the aggregate numerical data in the Transparency Report

11 would pose a grave or imminent risk of harm to national security.

12

B. Independently, Twitter Is Entitled to Summary Judgment Because the

Government’s Prior Restraint Lacked All of Freedman’s Procedural Safeguards. 13
Separate and apart from the Government’s inability to justify its prior restraint of

14 Twitter’s 2014 Transparency Report under strict scrutiny, that restraint as applied to Twitter is

15 still procedurally unconstitutional under Freedman v. Maryland, 380 U.S. 51, 58–60 (1965). See

16 Dkt. No. 186, at 4–5; In re NSL, 863 F.3d at 1129–30 (separately assessing the substantive

17 constitutionality (under strict scrutiny) and procedural constitutionality (under Freedman v.

18 Maryland) of non-disclosure obligations imposed under the NSL regime); Microsoft Corp. v.

19 U.S. Dep’t of Justice, 233 F. Supp. 3d 887, 905–07 (W.D. Wash. 2017) (same).

20 It is well “settled . . . that a system of prior restraint ‘avoids constitutional infirmity only

21 if it takes place under procedural safeguards designed to obviate the dangers of a censorship

22 system.’” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975) (quoting Freedman, 380

23 U.S. at 58) (collecting authorities). These procedural safeguards include that (1) “the burden of

24 instituting judicial proceedings, and of proving that the material is unprotected, must rest on the

25 censor”; (2) “any restraint prior to judicial review [must] be imposed only for a specified brief

26 period and only for the purpose of preserving the status quo”; and (3) “a prompt final judicial

27 determination must be assured.” Id. at 560; see also Dkt. No. 186, at 5.

28

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1

As this Court has previously found, the prior restraint on Twitter’s Transparency Report

2 was imposed without these procedural safeguards. Neither the Government’s classification

3 guidelines, nor the USAFA safe-harbor bands that the Government treats as the effective line

4 between classified and unclassified speech, provide a mechanism for expeditious, Government-

5 initiated judicial review of restrictions on disclosures of “aggregate volume data.” Dkt. No. 172,

6 at 18. Notably, 50 U.S.C. § 1874(c) explicitly contemplates that the Government may authorize

7 reporting outside of the USAFA’s safe-harbor bands. But the statute “offers no procedure to

8 petition for [the] exercise of discretion.” Dkt. No. 172, at 18. Nor does it provide any

9 mechanism for a speaker like Twitter to obtain prompt judicial “review of any Government

10 decisions under [§ 1874(c)], or [of any] classification decision in connection with such

11 [aggregate] disclosures generally.” Id. This defect is perhaps best exemplified by this extended

12 litigation, which Twitter was forced to initiate in order to obtain judicial review of the

13 Government’s classification of aggregate data in its 2014 Transparency Report.

14

1. Twitter Adequately Pled that the Government’s Censorship of Its 2014

Transparency Report Was an Unconstitutional Prior Restraint. 15
The Government’s argument that Twitter failed to plead that the censorship of its

16 Transparency Report was an unconstitutional prior restraint rests on a misconception of

17 governing First Amendment law and an overly cramped reading of the SAC.

18 Counts I and II of the SAC specifically plead that “the government’s prior restraint on

19 Twitter’s speech violates the First Amendment.” SAC pp. 17, 21. In Count II, Twitter further

20 pled that Twitter was challenging “Defendants’ decision to censor Twitter’s transparency report”

21 as unconstitutional. Id. ¶ 88; see also id. ¶ 84. This pleading was more than sufficient to put the

22 Government on notice that the First Amendment-mandated procedural requirements under

23 Freedman are at play here. “A party need not plead specific legal theories in the complaint, so

24 long as the other side receives notice as to what is at issue in the case.” Am. Timber & Trading

25 Co. v. First Nat. Bank of Or., 690 F.2d 781, 786 (9th Cir. 1982). And it is hornbook law that

26 “prior restraints on speech will pass constitutional muster” only if they comply with both

27 Freedman’s “procedural safeguards and substantive strict scrutiny requirements.” Dkt. No. 172,

28

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1 at 8. Thus, by alleging that the Government’s “[censor]ship” decision was an “unconstitutional

2 prior restraint” (see Counts I and II), Twitter has adequately pled a challenge to “both the

3 procedural safeguards and substantive strict scrutiny requirements” associated with the prior

4 restraints at issue in this case. See Rother v. Lupenko, 515 F. App’x. 672, 674 (9th Cir. 2013)

5 (affirming ruling allowing the plaintiff’s claim to proceed because “[a]lthough Plaintiff’s Second

6 Amended Complaint did not spell out their unpaid break claims in so many words, Defendants

7 nonetheless had sufficient notice of those claims by the summary judgment stage.”); Crull v.

8 GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir. 1995). Indeed, the Court explicitly addressed

9 whether the Government’s restraint here satisfied Freedman’s procedural safeguards in denying

10 the Government’s initial motion for summary judgment. Dkt. No. 172, at 8.9

11

2. Freedman Applies to the Executive’s Discretionary Classification of Speech

about the Receipt of National Security Process.

12 The Court was correct to hold that the Government’s prior restraint in this case must

13 include Freedman’s procedural safeguards in order to be constitutional. Dkt. No. 172, at 8, 18;

14 Dkt. No. 186, at 4–5. Contrary to the Government’s claim (see Dkt. No. 309, at 18), its

15 discretionary classification of the aggregate data in Twitter’s draft Transparency Report was a

16 prior restraint that bears all the “dangers of a censorship system” that the Supreme Court sought

17 in Freedman to “obviate” by requiring certain procedural safeguards.

18 First, the Government’s classification decision—like any “censorship proceeding”—

19 “puts the initial burden on the [speaker]” to seek permission to speak. Freedman, 380 U.S. at 57.

20 The Government forbids recipients of individual FISA orders and NSLs from disclosing the

21 aggregate number of orders they have received. Though Congress has carved out a narrow safe

22 harbor for aggregate reporting made in conformity with the bands in 50 U.S.C. § 1874(a),10 any

23

24

25

9 The Government’s position also fails because it has repeatedly addressed the application of Freedman to this case without ever suggesting this claim was not adequately pled or not a legal

26 theory at issue in the case. See, e.g., Dkt. Nos. 180, 184 (Motion for Reconsideration briefing). 10 Section 1874(a) permits “person[s] subject to a nondisclosure requirement accompanying an

27 order or directive under [the FISA] or a national security letter” to “publicly report” information

“with respect to such order, directive, or national security letter” if they do so in accordance with 28 one or more of the large bands set forth therein. 50 U.S.C. § 1874(a).

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1 speaker who wishes to publish more granular data about its receipt of national security process

2 still bears the initial burden of seeking permission from the Executive under § 1874(c).11

3

The second “danger” of a censorship system is that, “[b]ecause a censor’s business is to

4 censor, there inheres the danger that he may well be less responsive than a court—part of an

5 independent branch of government—to the constitutionally protected interests in free

6 expression.” Freedman, 380 U.S. at 57–58. The Government’s discretionary authority to

7 classify information under Executive Order (“EO”) 13526 about its use of national security

8 process shares this attribute of a classic censorship regime as well. Indeed, even more so than

9 the typical censor, the FBI faces a strong incentive to overclassify (or overcensor) speech about

10 its use of national security process—both because the national security interests at stake will lead

11 classifying authorities to err on the side of censorship and because the information at issue is

12 about the FBI’s (the censor’s) own activities. Indeed, the overclassification of information in the

13 Department of Justice is well documented. Rubin Decl. Ex. 11, at 13 (OIG audit finding

14 evidence of overclassification and “persistent misunderstanding and lack of knowledge of certain

15 classification processes by officials within various DOJ components”).

16

For these reasons, the Government’s broad discretion to classify data about its use of

17 national security process carries both of the “dangers” of censorship that have consistently

18 prompted the Court to require prior restraints to comply with Freedman. See, e.g., Vance v.

19 Universal Amusement Co., 445 U.S. 308, 317 (1980) (statute authorizing prior restraint on movie

20 exhibitors of indefinite duration failed to comply with Freedman); Conrad, 420 U.S. at 559–60

21 (denial of facility use permit to procedures of a play under scheme lacking Freedman’s

22 procedural safeguards was unconstitutional).

23

a. The Ninth Circuit’s Dictum Is Neither Controlling Nor Consistent with

Supreme Court Authority. 24
The Government quotes dicta in In re NSL suggesting that the law authorizing

25 nondisclosure obligations in individual NSLs “is more similar to governmental confidentiality

26

27 11 Section 1874(c) authorizes “the Government” to permit “the publication of information”
28 related to NSLs and FISA Orders in any other “form.” Id. § 1874(c).
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1 requirements that have been upheld by the courts” (referring to two cases, Butterworth and

2 Seattle Times, discussed infra). Mot. at 20 (quoting In re NSL, 863 F.3d at 1129).

3

That dicta is not controlling or persuasive here. First, it is in tension with the Ninth

4 Circuit’s actual holding—which examined the NSL statute at length and held that it “in fact

5 provides all of [Freedman’s procedural safeguards].” Id. at 1129–30. As important, the Ninth

6 Circuit’s statement was made in the context of a wholly different statutory scheme which, unlike

7 Section 1874(c),12 did not specifically contemplate pre-publication submission and review of

8 publication requests for government censorship. See id. at 1127–29 (“The NSL law . . . neither

9 require[d] [the plaintiffs] to submit proposed speech for review and approval, nor . . . to obtain a

10 license before engaging in business.”).

11

Moreover, the court’s suggested analogy to Butterworth and Seattle Times ignores the

12 principal rationales behind those decisions. In Butterworth v. Smith, 494 U.S. 624 (1990), the

13 Supreme Court found a Florida statute substantively unconstitutional to the extent it prohibited

14 the plaintiff, a grand jury witness, from disclosing his own testimony after the conclusion of

15 grand jury proceedings. Id. at 628, 632–36. The Court reasoned that the restriction was not

16 justified by any of the state’s proffered interests (e.g., in preventing flight by the accused,

17 avoiding public ridicule of exonerated persons and encouraging witnesses to testify freely

18 without fear of retribution). Id. at 632. However, the Court affirmed that prohibitions on

19 disclosure of other witnesses’ testimony were justified by the state’s interest in “enhancing the

20 integrity of the grand jury system.” Smith v. Butterworth, 866 F.2d 1318, 1320–21 (11th Cir.

21 1989), aff’d, 494 U.S. 624 (1990) (“effectiveness of the grand jury system itself would be

22 impaired if jurors were not completely assured that their identities would remain unknown”).

23

To the extent Butterworth has any relevance here at all, it cuts in Twitter’s favor. The

24 restriction on Twitter’s ability to disclose information about its own experience as the recipient

25

26

27 12 The Government has applied its classification guidelines (in EO 13526), pursuant to its authority under 50 U.S.C. § 1874(c), to consider publication requests more granular than those
28 permitted under the safe-harbor bands in § 1874(a).
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1 of coercive national security process is far more akin to the restrictions on disclosure of one’s

2 own testimony that the Court struck down.13

3

The second case, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), held that protective

4 orders prohibiting civil plaintiffs from disclosing sensitive information they had compelled

5 defendants to turn over in discovery did “not offend the First Amendment.” Id. at 37. The Court

6 reasoned that the orders were justified by the “[t]he unique character of the discovery process,”

7 through which litigants may compel disclosure of “damaging” information about adversaries. Id.

8 at 35–36. The Court further observed that, because the purpose of a protective order is to

9 “prevent[] . . . the abuse that can attend the coerced production of information,” id. at 35, it “does

10 not raise the same specter of government censorship that such control might suggest in other

11 situations,” id. at 32.

12

Again though, this case presents precisely the opposite issue: While Seattle Times

13 expressed a concern that a would-be speaker might “abuse” its access to “coerc[ive]” discovery

14 tools, Twitter (the would-be speaker here) is the subject or target of the coercive action. To be

15 sure, Twitter knows how many national security process requests it has received because of its

16 interaction with the Government. But it was the Government—not Twitter—that unilaterally

17 initiated all of those interactions. Indeed, the Second Circuit in Doe v. Mukasey (a case from

18 which the Government selectively and misleadingly quotes (Mot. at 20)) specifically rejected the

19 government’s analogy to Seattle Times on these precise grounds. See 549 F.3d 861, 877 (2d. Cir.

20 2008) (“We fail to appreciate the analogy between the individuals or the entity seeking

21 disclosure in [Seattle Times] and [plaintiff], who had no interaction with the Government until

22 the Government imposed its nondisclosure requirement upon it.”).14

23

13 Further, Butterworth made no mention of Freedman. 24 14 Because of this important difference, Seattle Times cuts in favor of applying Freedman to the

25

Government’s prior restraint here (to the extent applicable here at all). As the Supreme Court has recognized, the best defense against Executive abuses is an informed public. See Pentagon

26 Papers, 403 U.S. at 723–24 (Douglas, J., concurring) (“immunity” “from previous restraint” in speaking about “the administration of government” is “vital to our national health”). Requiring

27 the Executive’s classification of aggregate data to comport with Freedman advances that interest

by mitigating the inherent risk that, because its “business is to censor,” the Executive will 28 overclassify and thereby keep out of public view information necessary to hold it accountable.

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1

For the same reason, the Second Circuit distinguished the Government’s cases (Mot. at

2 21) involving nondisclosure obligations imposed on former employees as a condition of their

3 voluntary employment relationship with the government. See Mukasey, 549 F.3d at 877 (citing

4 United States v. Snepp, 897 F.2d 138 (4th Cir. 1990) and United States v. Marchetti, 466 F.2d

5 1309 (4th Cir.1972)). And the court in Mukasey ultimately held that, notwithstanding some

6 (immaterial) differences between the NSL law and other censorship schemes, Freedman’s

7 safeguards “must be observed.” 549 F.3d at 881.

8

In sum, Section 1874 and the Government’s discretionary classification scheme bear far

9 greater resemblance to the classic censorship scheme that Freedman’s safeguards were designed

10 to address than to the unique restraints on grand jury testimony and civil discovery that were

11 addressed in Butterworth and Seattle Times. In the latter cases, the justifications for secrecy

12 “inhere[d] in the nature of the proceeding[s]” themselves. Mukasey, 549 F.3d at 876. In neither

13 did the speech restriction turn on an administrative censor’s discretionary application of criteria

14 that may or may not, in fact, justify restriction under the First Amendment.

15

b. The FISA Process Does Not Save the Government’s Prior Restraint on

Aggregate Reporting from Constitutional Infirmity. 16
The Government next argues that it would not make sense to apply Freedman here

17 because individual FISA Orders and NSLs may be challenged in proceedings that comport with

18 Freedman (Mot. at 21). Regardless of whether that is accurate in all cases,15 the “Government

19 offers no similar provisions applicable to the [aggregate] reporting restrictions in the statutory

20 scheme here.” Dkt. No. 186, at 9 (“The argument that each of the underlying orders comprising

21 the aggregate number is subject to individual judicial review does not address … whether the

22 Government’s prohibition on publication of a completely different set of information—the

23 aggregate numbers … requires judicial review be provided.”) (emphasis added).

24 Relatedly, the Government argues that some of the orders included in Twitter’s aggregate

25 disclosures may have emanated from “the FISA process” that included judicial review. Mot. at

26

27

28

15 The Government itself has repeatedly emphasized the disparities across FISA Titles. See, e.g., Dkt. No. 290, at 3; Dkt. No. 309, at 22–23.

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1 21. The Government claims that the involvement of the FISC in issuing orders obviates

2 Freedman’s concerns about government censorship, and therefore Freedman should not apply to

3 restraints on aggregate reporting. This is wrong for several reasons.

4

As a threshold matter, that argument ignores that at least some of the orders encompassed

5 in Twitter’s aggregate reporting emanated from the NSL regime—not the FISA. But more

6 fundamentally, the Government’s suggestion that FISC judges review the Executive’s censorship

7 decisions is contrary to the plain text of the FISA, which shows that the FISC has no role in

8 approving the nondisclosure obligations that accompany FISA directives. The FISA (like the

9 NSL regime) consistently vests authority to define the contours of any “security procedures”

10 (which include the applicable nondisclosure obligations) in “the Attorney General and the

11 Director of National Intelligence.” E.g., 50 U.S.C. § 1881a(i)(1)(B) (authorizing the “Attorney

12 General and the Director of National Intelligence” to “direct” an ECSP to “maintain under

13 security procedures approved by the Attorney General and the Director of National Intelligence

14 any records concerning the acquisition or the aid furnished” by the ECSP); id. § 1805(c)(2)(C)

15 (“An order approving an electronic surveillance under this section shall direct . . . that such

16 [ECSP] maintain [any records] under security procedures approved by the Attorney General and

17 the Director of National Intelligence”) (emphases added); id. § 1824(c)(2)(C) (same language).

18

Likewise, the provisions governing the FISC’s review of the Executive’s FISA

19 applications do not permit the FISC judge to consider the necessity or scope of the Executive’s

20 security procedures. Section 1805, for example, provides that a FISC judge “shall enter an ex

21 parte order” authorizing electronic surveillance “if he finds that” certain conditions are met (none

22 of which require review of any nondisclosure provisions). See, e.g., 50 U.S.C. §§ 1805(a),

23 1824(a) (emphasis added).16 Indeed, it is telling that the Government’s argument fails to cite a

24 single statutory provision. See Mot. at 21.

25 16 The conditions for FISC approval are: (1) the application has been made by the appropriate 26 authorities; (2) “there is probable cause to believe that . . . the target of the electronic surveillance
is a foreign power”; (3) the government’s “proposed minimization procedures” meet the 27 statutory requirements (meaning they are designed “to minimize the acquisition and retention” of
nonpublic information about “United States persons,” 50 U.S.C. § 1801(h)); and (4) the 28 application “contains all the statements and certifications required.”
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1

Moreover, the Government’s argument that “no case” requires the Government to initiate

2 expedited judicial review in order to protect classified information is incorrect. That is precisely

3 the holding of Doe v. Mukasey, which found that Freedman applies to restrictions on disclosure

4 of individual NSLs (which are also “classified”). Mukasey, 549 F.3d at 879–81.

5

Finally, the Government’s discussion of other sources of censorship authority is a red

6 herring. Dkt. No. 309, at 22–24. Twitter is presently seeking only a declaration that the

7 Government’s censorship of the redacted portions of the Transparency Report violates the First

8 Amendment and an injunction against classification of aggregate data under 50 U.S.C. § 1874

9 and EO 13526 without Freedman’s procedural safeguards. Likewise, the Government has

10 consistently identified the reporting bands and its classification authority under EO 13526 as the

11 basis for the Government’s discretionary censorship (authorized by 50 U.S.C. § 1874(c)) of

12 Twitter’s speech. See Tabb Decl., Dkt. No. 309-1, ¶¶ 27–30; Rubin Decl. Ex. 3.

13

And irrespective of the statutory or regulatory source of the speech restrictions here, the

14 substantive First Amendment standard is the same: The Government must show that

15 nondisclosure is necessary to prevent grave and imminent risk to national security. Nor does it

16 matter, for purposes of Freedman, that the Government may in other circumstances impose

17 nondisclosure obligations under other statutes. As the Court has previously observed, the

18 Government has not pointed to any provision in any statute which permits recipients of national

19 security process to challenge restrictions on aggregate reporting under the procedures

20 contemplated in Freedman. Dkt. No. 172, at 9.

21

3. Twitter Is Entitled to an Injunction Against Enforcement of the Government’s

Procedurally Unconstitutional Censorship Authority. 22
In sum, Twitter is entitled to summary judgment on its claim that the Government’s

23 classification of the 2014 Transparency Report was an “unconstitutional prior restraint,” because

24 it was imposed pursuant to a system of censorship that lacks Freedman’s procedural safeguards.

25 First, none of the Government’s proffered bases for its censorship here—including its

26 classification guidelines in EO 13526 (nor 50 U.S.C. § 1874) require that any pre-judicial review

27 restraints be “brief.” Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002). This stands in sharp

28

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1 contrast to the procedures upheld by the Ninth Circuit in In re NSL, which guaranteed that the

2 government would “‘go to court’ within 30 days of receiving notice” from a recipient. 863 F.3d

3 at 1129 (quoting 18 U.S.C. § 3511(b)(1)(B)). Freedman’s second requirement is also lacking:

4 As this Court previously noted, “[Section 1874(c)] does not provide a mechanism for

5 [expeditious] review of any Government decisions under that exception, or classification

6 decisions in connection with such disclosures generally.” Dkt. No. 172, at 18; compare In re

7 NSL, 863 F.3d at 1129 (quoting 18 U.S.C. § 3511(b)(1)(C) (specifically requiring courts to “rule

8 expeditiously” on challenges to non-disclosure of individual NSLs)). And third, the framework

9 applied here does not require the Government to initiate those judicial proceedings, upon receipt

10 of notice of a legal challenge from the recipient. Compare In re NSL, 863 F.3d at 1129.

11

Given these defects, Twitter is entitled to a declaratory judgment that the Government’s

12 censorship of the 2014 Transparency Report was procedurally unconstitutional because the

13 system of censorship applied failed to comport with Freedman. The Government’s restriction on

14 Twitter’s aggregate reporting should accordingly be enjoined until the Government adopts

15 procedures by which Twitter can obtain Freedman-compliant judicial review of aggregate

16 reporting restrictions. See In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064, 1081 (N.D. Cal. 2013)

17 (adopting such remedy).17

18

C. Independently, the Government’s Motion for Summary Judgment Should Be

Denied Under Federal Rule of Civil Procedure 56(d). 19
Independently, the Government’s Renewed Motion for Summary Judgment should be

20 denied because Twitter has been precluded at every turn from obtaining discovery into “facts

21 essential to justify its opposition.” Fed. R. Civ. P. 56(d). For the past three years (since

22 November 2016), Twitter has sought exhaustively to obtain basic discovery of information

23 highly relevant to its claims. The Government first asserted groundless relevance objections, and

24 then went through the motions of discovery while asserting privilege over virtually all

25 substantive, non-public information.

26

27 17 Should the Court deem it appropriate, Twitter would not object to a stay of the Court’s judgment pending appeal or, if no appeal is filed, for 90 days—consistent with the Northern
28 District’s opinion in In re NSL. Id. at 1081.
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1

The Government has also prevented Twitter’s access (through its cleared counsel) to the

2 classified declaration on which the Government originally relied in moving for judgment (the

3 Classified Steinbach Declaration). Though the Court directed the Government to initiate

4 expedited security clearance for Twitter’s lead counsel, Lee H. Rubin (Dkt. No. 172), and Mr.

5 Rubin’s application was “favorably adjudicated,” Rubin Decl. ¶ 17, Ex. 12, the Government

6 ultimately refused to issue a security clearance.18 The Government claimed that Mr. Rubin, as

7 private counsel in civil litigation against the Government, had no “need to know” classified

8 evidence submitted in this case. Id. ¶ 17; Dkt. No. 244, at 9. The Government then opposed

9 Twitter’s request to the Court for access to the Classified Steinbach Declaration (Dkt. No. 250)

10 on the dual grounds that (1) the Court had no authority to compel discovery of classified

11 information over its need-to-know objection (Dkt. Nos. 256, 264), and (2) the declaration was a

12 “state secret” (Dkt. No. 281). Twitter has vigorously contested both objections as insufficient to

13 justify the Government’s refusal to disclose classified information to cleared counsel, see Dkt.

14 Nos. 265, 292; this dispute remains live.

15

Now, in connection with its Renewed Motion for Summary Judgment, the Government

16 has submitted the Classified Tabb Declaration, which it again claims constitutionally justifies its

17 restrictions on Twitter’s Transparency Report. Just as with the Classified Steinbach Declaration,

18 Twitter needs access to the Classified Tabb Declaration—the core of the Government’s

19 defense—in order to meaningfully counter the Government’s claim that its prior restraint is

20 constitutional. As Twitter previously explained, such access would occur only through cleared

21 counsel and under any security procedures the Government deems appropriate. Twitter’s request

22 is supported by fundamental principles of due process and fully consistent with the Court’s broad

23 inherent authority to control discovery. See id. Simultaneously, the Government has articulated

24 no valid basis to believe that the nation’s security would be endangered by permitting one

25 cleared counsel access to one classified document—subject to whatever security protocols the

26 Government may require. Id.

27 18 For simplicity, Twitter uses the term “cleared counsel” to refer to this favorable suitability
28 determination.
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1

The Court’s recent Order to Show Cause (Dkt. No. 301) only underscores Twitter’s need

2 for such discovery. The Court has indicated that it is inclined to hold that evidence contained in

3 the Classified Declaration of Michael C. McGarrity (submitted in support of the Government’s

4 state secrets briefing) “meets the Government’s burden under strict scrutiny to justify

5 classification … of information in the Draft Transparency Report.” Dkt. No. 301, at 2. The

6 Government objected to the Court’s consideration of the Classified McGarrity Declaration for

7 purposes of summary judgment, but requested an opportunity to submit that evidence through a

8 “new motion[] for summary judgment and supporting declarations.” Dkt. No. 306, at 2 n.1. That

9 evidence is now presumably contained in the Classified Tabb Declaration, submitted in support

10 of the Government’s Renewed Motion for Summary Judgment.

11

The Court’s stated inclination to uphold a presumptively unconstitutional prior restraint

12 on the basis of classified evidence only heightens the need for adversarial testing of that

13 evidence. Thus, even if the Court were to conclude that discrete portions of the Classified Tabb

14 Declaration could not be disclosed to cleared counsel without serious risk of harm to national

15 security, the Court should at least permit access to those portions of the declaration the Court

16 finds potentially dispositive (subject, of course, to reasonable security protocols).

17

Simply put, Twitter needs access to the Government’s most critical evidence to vindicate

18 its First Amendment rights. This provides yet another basis for denying the Government’s

19 Motion for Summary Judgment.

20

CONCLUSION

For the reasons set forth herein, the Court should grant Twitter’s Cross-Motion for 21

Summary Judgment and deny the Government’s Motion. Specifically, Twitter seeks judgment in 22

its favor on the portions of Counts I and II discussed herein, as well as on Count III to the extent

23

derivative of any relief granted under Twitter’s Counts I and II.

24

25 Dated: October 25, 2019

MAYER BROWN LLP

26

/s/ Lee H. Rubin LEE H. RUBIN (SBN 141331)

27

SAMANTHA C. BOOTH (SBN 298852) Attorneys for Plaintiff Twitter, Inc.

28

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 Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 1 of 11

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

TWITTER, INC.,

Case No. 14-cv-04480-YGR

7

Plaintiff,

8

v.

9

WILLIAM P. BARR, ET AL.,

10

Defendants.

ORDER GRANTING GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT; DENYING TWITTER’S CROSS-MOTION FOR SUMMARY JUDGMENT
DKT. NOS. 309, 311

11

12

This long-pending case has morphed through myriad iterations and legislative changes.

13 That plaintiff has continued to pursue the action merely underscores the tension between the First

14 Amendment and national security and the future impact of the proceedings. The Court now

15 addresses the cross-motions of plaintiff Twitter, Inc. (“Twitter”) and defendants William P. Barr,

16 et al. (“the Government”) for summary judgment. (Dkt. Nos. 309, 311.) The Court having

17 considered the parties’ briefing in support of and in opposition to the cross-motions, the

18 admissible evidence1 (including evidence presented in camera2), and the prior proceedings and

19

20

1 Twitter requests judicial notice of publicly available reports prepared by the Director of

the Administrative Office of the U.S. Courts, Office of the Director of National Intelligence, and

21 the U.S. Department of Justice Office of Legislative Affairs (Dkt. No. 315) in support of Twitter’s cross-motion and opposition. In connection with its reply briefing, Twitter also filed a

22 supplemental request for judicial notice of transparency reports published by five companies (Adobe, Cisco, Automattic, Wickr, and Nest) and that such reports include statements that they

23 companies have received zero national security process requests during one or more reporting periods. (Dkt. No. 327.) The Government did not oppose either request. The Court finds that it is

24 proper to take judicial notice of the fact of these reports and their contents, not the truth of any statements therein. The requests for judicial notice are GRANTED.

25

2 Twitter argues that the Government’s motion should be denied for the further reason that

it needs access to the Classified Tabb Declaration in order to meaningfully counter the 26 Government’s claim that the restrictions it has imposed on the Draft Transparency Report pass

constitutional muster. The Court finds that the classified declaration of EAD Tabb cannot be 27 disclosed to counsel for Twitter based upon the national security concerns it raises, despite

counsel’s clearance approval. Thus, Twitter’s motion for summary judgment on these alternative 28 grounds, as well as its motion for access of cleared counsel, are DENIED.

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 2 of 11

United States District Court Northern District of California

1 arguments in this matter, and for the reasons stated herein, ORDERS that the Government’s motion

2 for summary judgment is GRANTED and Twitter’s cross-motion for summary judgment is DENIED.

3 I.

BACKGROUND

4

A. Allegations of the Operative Complaint

5

Twitter’s Second Amended Complaint (Dkt. No. 114, “SAC”) is the operative pleading in

6 this action. The SAC seeks declaratory and injunctive relief based upon the Government’s alleged

7 “prohibitions on [Twitter’s] speech in violation of the First Amendment,” specifically the

8 Government’s prohibition on publishing its Draft Transparency Report “describing the amount of 9 national security legal process3 it received, if any for the period July 1 to December 31, 2013.”

10 (SAC ¶ 1, 4, emphasis in original.) Twitter further alleges that it “seeks to disclose that it

11 received ‘zero’ FISA orders, or ‘zero’ of a specific kind of FISA order, for that period, if either of

12 those circumstances is true.” (Id. ¶ 4, emphasis in original.) More particularly, Twitter alleges that

13 it seeks to publish a report disclosing the following categories of quantitative data to its users for

14 the relevant period:

15

a. The number of NSLs and FISA orders Twitter received, if any, in actual

aggregate numbers (including “zero,” to the extent that that number was

16

applicable to an aggregate number of NSLs or FISA orders or to specific kinds of

FISA orders that Twitter may have received);

17

b. The number of NSLs and FISA orders received, if any, reported

separately, in ranges of one hundred, beginning with 1–99;

18

c. The combined number of NSLs and FISA orders received, if any, in

ranges of twenty-five, beginning with 1–24;

19

d. A comparison of Twitter’s proposed (i.e., smaller) ranges with those

authorized by the [Government in its earlier communication from then-Deputy

20

Attorney General James M. Cole to the General Counsels for Facebook, Google,

LinkedIn, Microsoft and Yahoo!, referred to as the] DAG Letter;

21

e. A comparison of the aggregate numbers of NSLs and FISA orders

received, if any, by Twitter and the five providers to whom the DAG Letter was

22

addressed; and

f. A descriptive statement about Twitter’s exposure to national security

23

surveillance, if any, to express the overall degree of government surveillance it is

or may be subject to. 24

(Id. ¶ 56, emphasis in original.)

25

The Government has prohibited publication of that Draft Transparency Report since

26

27

3 Those national security legal process requests include national security letters (“NSLs”)

28 and other orders under the Foreign Intelligence Surveillance Act (“FISA”).

2

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 3 of 11

United States District Court Northern District of California

1 Twitter submitted it for review on April 1, 2014, asserting that certain portions of the report

2 contained classified information. (Id. ¶¶ 55, 57, 58.) In two counts of the SAC, Twitter alleges

3 that the Government has classified information in the Draft Transparency Report improperly and

4 therefore put unlawful prior restraints on its speech in violation of the First Amendment. Twitter

5 alleges that these actions are both violations of the First Amendment and “final agency action”

6 subject to challenge under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (SAC at ¶¶

7 71-86 and 87-91.)4

8

B. Procedural History

9

The lengthy procedural history of this case is detailed in the Court’s prior orders. (See

10 October 14, 2015 Order Denying Motion to Dismiss as Moot (Dkt. No. 85); May 2, 2016 Order

11 Granting In Part and Denying In Part Motion to Dismiss Amended Complaint (Dkt. No. 113); July

12 6, 2017 Order Denying Government’s Motion for Summary Judgment Without Prejudice;

13 Granting Twitter’s Motion for Order Directing Defendants to Expedite Security Clearance (Dkt.

14 No. 172)); November 27, 2017 Order Denying Motion for Reconsideration (Dkt. No. 186). The

15 Court sets forth herein an abbreviated summary of the history as relevant to the instant motions.

16

The Government previously moved for summary judgment (Dkt. No. 145) based upon a

17 classified and a redacted declaration of Michael Steinbach, Executive Assistant Director (“EAD”)

18 of the National Security Branch of the Federal Bureau of Investigation (“FBI”). (See Notice of

19 Lodging of Classified Declaration of Michael Steinbach for In Camera, Ex Parte Review, Dkt.

20 No. 144.) The Court reviewed the Classified Steinbach Declaration in camera and, based upon

21 that review, denied the Government’s motion without prejudice. The Court found that, under the

22 applicable constitutional standards, the Classified Steinbach declaration was inadequate to meet

23 the Government’s burden to overcome the strong presumption of unconstitutionality of its content-

24 based prior restrictions on Twitter’s speech. (Dkt. No. 172 at 17-18.) The Court found:

25

The Government’s restrictions on Twitter’s speech are content-based prior

26

27

4 Twitter alleges a third count seeking injunctive relief barring Government prosecution

under the Espionage Act, 18 U.S.C. § 793(d) should Twitter disclose information in the Draft

28 Transparency Report. (SAC ¶¶ 92-96.)

3

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 4 of 11

United States District Court Northern District of California

restraints subject to the highest level of scrutiny under the First Amendment. The

1

restrictions are not narrowly tailored to prohibit only speech that would pose a

clear and present danger or imminent harm to national security. The Government

2

argues that the limitations imposed on Twitter are necessary because disclosure of

data concerning the number and type of national security legal process that it

3

received in a time period would impair national security interests and is properly

classified. However, the Government has not presented evidence, beyond a

4

generalized explanation, to demonstrate that disclosure of the information in the

Draft Transparency Report would present such a grave and serious threat of

5

damage to national security as to meet the applicable strict scrutiny standard.

6 (Id. at 2.) The Court denied the motion without prejudice, offering the Government leave to

7 submit additional evidence to support its restrictions. (See, e.g., Dkt. No. 182, Transcript of Case

8 Management Conference, at 4:3-23.) The Government declined to do so. (Id.)

9

Following a formal request by Twitter (Dkt. No. 250), the Court issued an Order to Show

10 Cause (“OSC”) why the Classified Steinbach Declaration should not be disclosed to Twitter’s

11 counsel who had been granted a security clearance. (Dkt. No. 261.) The Government filed a

12 response to the OSC which included a motion to dismiss the action based on an assertion of the

13 state secrets privilege. (Dkt. No. 281.) In connection with that response, the Government

14 submitted in camera the Classified Declaration of Acting EAD Michael C. McGarrity. (See Dkt.

15 No. 282, Notice of Lodging of Classified Declaration of Michael C. McGarrity for Ex Parte In

16 Camera Review.) Drafted in support of the Government’s assertion of the state secrets privilege,

17 the Classified Declaration of EAD McGarrity provided a more complete explanation and

18 justification of the Government’s basis for restricting the information that may be published in the

19 Draft Transparency Report, and the grave and imminent harm that could reasonably be expected to

20 arise from its disclosure, in far greater detail than the Government provided previously.

21

After considering McGarrity’s declaration provided in camera, the Court, on June 21,

22 2019, issued an OSC indicating it was inclined to reconsider its prior order denying the

23 Government’s summary judgment motion (Dkt. No. 301), stating:

24

The Court is inclined to find that classified McGarrity Declaration meets the

Government’s burden under strict scrutiny to justify classification and restrict

25

disclosure of information in the Draft Transparency Report, based upon a

reasonable expectation that its disclosure would pose grave or imminent harm to

26

national security, and that no more narrow tailoring of the restrictions can be

made. Further, the Court is inclined to conclude that the classified McGarrity

27

Declaration cannot be disclosed to counsel for Twitter based upon the national

security concerns it raises. 28

4

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 5 of 11

United States District Court Northern District of California

1 (Id. at 2.) On August 23, 2019, the parties jointly responded to the June 21, 2019 Order

2 to Show Cause and asked that the classified McGarrity declaration not be used to inform

3 the Court’s reconsideration of the Government’s motion for summary judgment. Instead,

4 the Government requested to submit a new summary judgment motion supported by a

5 new declaration, which would incorporate aspects of the information proffered in the

6 Classified McGarrity Declaration germane to the merits of the case. (Dkt. No. 306 at 2–

7 3.) The Court granted the Government’s request as well as Twitter’s request to file a

8 cross-motion for summary judgment.

9

C. The Instant Cross-Motions

10

The Government filed its motion seeking summary judgment on all claims in Twitter’s

11 SAC on the grounds that the newly submitted classified and unclassified declarations of Jay S.

12 Tabb, Jr., EAD of the National Security Branch of the FBI to establish that disclosure of the data

13 contained in Twitter’s 2014 Draft Transparency Report reasonably could be expected to result in

14 national security harms such that the Government’s restrictions on the report are constitutionally

15 valid. Twitter’s cross-motion contests the Government’s arguments and seeks summary judgment

16 on the grounds that: (1) the Government has not satisfied strict scrutiny under the Pentagon

17 Papers5 standard; (2) the Government’s decision to restrict the disclosures in Twitter’s 2014 Draft

18 Transparency Report lacked any of the procedural safeguards required by Freedman v. Maryland,

19 380 U.S. 51 (1965); and (3) Twitter’s cleared counsel6 must be given access to the classified

20 version of the Tabb Declaration in order for it to respond fully to the Government’s arguments.

21 II. LEGAL STANDARD

22

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

23 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]hen

24 parties submit cross-motions for summary judgment, each motion must be considered on its own

25

26

5 N.Y. Times Co. v. United States, 403 U.S. 713 (1971), commonly referred to as the

27 Pentagon Papers case.

6 Twitter’s lead counsel Lee H. Rubin has had his security clearance “favorably 28 adjudicated” by the FBI as of September 17, 2018. (Dkt. No. 250-1, Rubin Decl. Exh. A.)

5

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 6 of 11

United States District Court Northern District of California

1 merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th

2 Cir. 2001) (alteration and internal quotation marks omitted). Thus, “[t]he court must rule on each

3 party’s motion on an individual and separate basis, determining, for each side, whether a judgment

4 may be entered in accordance with the Rule 56 standard.” Id. (quoting Wright, et al., FEDERAL

5 PRACTICE AND PROCEDURE § 2720, at 335–36 (3d ed. 1998)). However, the court must consider

6 the evidence proffered by both sets of motions before ruling on either one. Riverside Two, 249

7 F.3d at 1135–36; Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011)

8 (“Because the parties filed cross-motions for summary judgment, we consider each party’s

9 evidence to evaluate whether summary judgment was appropriate.”) “[C]redibility

10 determinations, the weighing of the evidence, and the drawing of legitimate inferences from facts

11 are jury functions, not those of a judge.” George v. Edholm, 752 F.3d 1206, 1214 (9th Cir.

12 2014) (alteration in original) (quotation omitted).

13

As a general matter, where the party moving for summary judgment would bear the burden

14 of proof at trial, that moving party bears the initial burden of proof at summary judgment as to

15 each material fact to be established in the complaint and must show that no reasonable jury could

16 find other than for the moving party. See S. California Gas Co. v. City of Santa Ana, 336 F.3d

17 885, 888 (9th Cir. 2003) (citing William W Schwarzer, et al., CALIFORNIA PRACTICE GUIDE:

18 FEDERAL CIVIL PROCEDURE BEFORE TRIAL (Rutter Group) § 14:124–127 (2001)). Where the

19 moving party would not bear the burden at trial, the motion need only specify the basis for

20 summary judgment and identify those portions of the record, if any, which it believes demonstrate

21 the absence of a genuine issue of material fact on some essential element of the claims. Celotex

22 Corp. v. Catrett, 477 U.S. 317, 323, (1986). The burden then shifts to the opposing party to

23 establish the existence of material disputes of fact that may affect the outcome of the case under

24 the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

25

In the context of a First Amendment challenge, however, the ultimate burdens of proof are

26 placed upon the Government. When the Government restricts speech, it bears the burden of

27 proving the constitutionality of its actions. United States v. Playboy Entm’t Grp., Inc., 529 U.S.

28 803, 816–17 (2000) (citing Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 6

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 7 of 11

United States District Court Northern District of California

1 U.S. 173, 183 (1999); Reno v. American Civil Liberties Union, 521 U.S. 844, 879 (1997)). “When

2 the Government seeks to restrict speech based on its content, the usual presumption of

3 constitutionality afforded [to its actions] is reversed.” Playboy, 529 U.S. at 816–17. Because

4 “[c]ontent-based regulations are presumptively invalid,” R.A.V. v. St. Paul, 505 U.S. 377, 382

5 (1992), “the Government bears the burden to rebut that presumption.” Playboy, 529 U.S. at 817.

6 “When First Amendment compliance is the point to be proved, the risk of nonpersuasion—

7 operative in all trials—must rest with the Government, not with the citizen.” Id. at 818 (internal

8 citation omitted).

9 III. DISCUSSION

10

A. Strict Scrutiny Standard

11

1. Strict Scrutiny Applies

12

The Government argues that it is entitled to summary judgment on several grounds. First,

13 it argues that, although it disagrees with the Court on the applicable constitutional standard, it

14 nevertheless has met the strict scrutiny standard since its restrictions on Twitter’s speech are

15 sufficiently “narrowly tailored to serve a compelling state interest” (quoting In re NSL, 863 F.3d

16 1110, 1123 (9th Cir. 2017) and Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015)). Twitter

17 counters that this Court previously decided the applicable standard is strict scrutiny, and the

18 Government has not met it.

19

In denying the Government’s original motion for summary judgment, the Court

20 determined that the restrictions on Twitter’s speech are subject to strict scrutiny as a content-based

21 restriction and a prior restraint. (Dkt. No. 172 at 15, citing numerous cases.) That is the law of the

22 case and the Government provides no substantive reason to revisit that determination.

23

2. The Declarations In the Record Satisfy the Government’s Substantive

Burden Under Strict Scrutiny 24

The Court applies the strict scrutiny standard to the challenged restrictions and finds that

25

the Government’s restrictions on the information Twitter may report are, in fact, narrowly tailored

26

in substance. The Court bases its decision on the totality of the evidence provided in this case,

27

including the classified declarations of EAD Steinbach, Acting EAD McGarrity and EAD Tabb.

28

7

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 8 of 11

United States District Court Northern District of California

1 Each built on the same basis for the Government’s position, and each bring a perspective to the

2 Court’s analysis to resolve this action. The Court sees no reason to disregard any of the

3 previously submitted declarations. The declarations explain the gravity of the risks inherent in

4 disclosure of the information that the Government has prohibited Twitter from stating in its Draft

5 Transparency Report, including a sufficiently specific explanation of the reasons disclosure of

6 mere aggregate numbers, even years after the relevant time period in the Draft Transparency

7 Report, could be expected to give rise to grave or imminent harm to the national security. The

8 Court finds that the declarations contain sufficient factual detail to justify the Government’s

9 classification of the aggregate information in Twitter’s 2014 Draft Transparency Report on the

10 grounds that the information would be likely to lead to grave or imminent harm to the national

11 security, and that no more narrow tailoring of the restrictions can be made.

12

B. Freedman’s Procedural Safeguards

13

Twitter argues that, in the alternative, it is entitled to summary judgment because the

14 procedures under which portions of its 2014 Draft Transparency Report were classified and

15 restricted do not satisfy the procedural safeguards required for such a prior restraint of speech

16 under Freedman v. Maryland and its progeny. More specifically, Twitter argues that Freedman

17 requires an expedited, government-initiated judicial review of a restraint on aggregate reporting,

18 and that such requirements are not met by the classification guidelines that the Government

19 applied nor the “statutory authority under which that classification review was conducted.”

20 (Twitter’s Cross-Motion for Summary Judgment, Dkt. No. 311, at 2:12-13, citing 50 U.S.C. §

21 1874(c)).7

22

The Government counters on two grounds. First, it contends that Twitter has not alleged a

23 challenge under Freedman in the SAC. Further, the Government argues the procedural

24

25

7 Twitter’s characterization of the section 1874(c) is incorrect. The Government’s

classification authority under Executive Order 13526 is completely distinct from its authority 26 under section 1874(c) to allow persons subject to nondisclosure provisions to report legal process

and orders received in a different manner than the numerical bands scheme set forth in section 27 1874(a) and (b). See 50 U.S.C. § 1874(c) (“Nothing in this section prohibits the Government and

any person from jointly agreeing to the publication of information referred to in this subsection in 28 a time, form, or manner other than as described in this section.”).

8

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 9 of 11

United States District Court Northern District of California

1 protections required by Freedman do not apply to its decision that the information in the Draft

2 Transparency Report was national security information properly classified under Executive Order

3 13526.

4

As a general matter, and as the Court previously determined, even if a particular content-

5 based restriction is permitted under the strict scrutiny standard, “the government does not have

6 unfettered freedom to implement such a restriction through ‘a system of prior administrative

7 restraints.’” In re NSL, 863 F.3d at 1122 (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70,

8 83 (1963)). The government’s restrictions must have “narrow, objective, and definite standards to

9 guide” them, as well as procedural safeguards to reduce the dangers of excessive restriction. See

10 Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002) (citing Freedman, 380 U.S. at 58–60). With

11 respect to such a system of prior restraints, Freedman requires that: (1) any restraint imposed prior

12 to judicial review must be limited to “a specified brief period”; (2) any further restraint prior to a

13 final judicial determination must be limited to “the shortest fixed period compatible with sound

14 judicial resolution”; and (3) the burden of going to court to suppress speech and the burden of

15 proof in court must be placed on the government. See Freedman, 380 U.S. at 58–59; FW/PBS, Inc.

16 v. City of Dallas, 493 U.S. 215, 227 (1990)); Thomas v. Chicago Park District, 534 U.S. 316, 321

17 (2002); John Doe, Inc. v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008), as modified (Mar. 26, 2009).

18

Thus, in In re Nat'l Sec. Letter, the Ninth Circuit considered whether nondisclosure

19 requirements as to specific national security process requests were constitutional. The In re Nat'l

20 Sec. Letter case was a facial challenge to the NSL statutes.8 The Ninth Circuit held that the NSL

21 law met all the procedural safeguard requirements of Freedman because the 2015 revisions

22 implemented a system of judicial review of a nondisclosure decision on an expedited basis, and

23 required the government to initiate the review and carry the burden of substantiating the

24 nondisclosure at the request of a contesting party. In re Nat'l Sec. Letter, 863 F.3d at 1129-31

25 (questioning whether Freedman applied to individuals who did not “intend to speak” before

26

27

8 The Ninth Circuit held that plaintiffs were raising a facial challenge to the NSL law,

28 rather than an as-applied challenge to a particular application of the law to their speech. Id. at 1121.

9

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 10 of 11

United States District Court Northern District of California

1 receiving the government’s prohibition, but nevertheless finding procedural protections satisfied

2 Freedman).

3

Here, Twitter’s SAC does not allege a challenge, facial or otherwise, based upon the

4 principles in Freedman. Count 1 of the SAC alleges that the information in the Draft

5 Transparency Report was not properly classified under Executive Order No. 13526, and that the

6 Government cannot demonstrate that the information poses a threat to national security. (SAC ¶¶

7 76, 79.) Count 2 of the SAC alleges that the Government’s decision regarding the Draft

8 Transparency Report was a “final agency action” that violated the First Amendment. Nowhere in

9 the SAC does Twitter seek declaratory or injunctive relief requiring the Government to comply

10 with any procedural safeguards, such as temporal limitations on prohibition orders, or

11 government-initiated judicial review, required by Freedman. The SAC does not direct a challenge

12 to lack of procedural safeguards in Executive Order 13526 itself, nor does it challenge the lack of

13 process with respect to the specific application of Executive Order 13526 to the Draft

14 Transparency Report.9 Likewise, to the extent Twitter asserts that any restrictions on it emanate

15 from the statutory reporting scheme set forth in 50 U.S.C. section 1874, the SAC does not

16 challenge the lack of procedural safeguards therein. In short, nothing in the SAC challenges a

17 “system of prior restraints” as in Freedman. Consequently, the Court cannot grant Twitter

18 affirmative relief based upon lack of compliance with the procedural protections in Freedman.10

19

9 The Court notes that Section 1.8 of Executive Order 13526 provides that “[a]uthorized 20 holders of information who, in good faith, believe that its classification status is improper are
encouraged and expected to challenge the classification status of the information in accordance 21 with agency procedures established under paragraph (b) of this section.” Executive Order 13526 §
1.8(a). Those procedures should cover all authorized holders of information “including authorized 22 holders outside the classifying agency.” Id. § 1.8(b). Neither party has cited to or argued for
application of any regulations governing a challenge to the classification here. However, the 23 Court notes that federal regulations implementing Executive Order 13526 have been enacted at 6
C.F.R., Chapter I, Part 7, subpart B; see, e.g., 6 C.F.R. § 7.31(a) (“Authorized holders may submit 24 classification challenges in writing to the original classification authority with jurisdiction over the
information in question. If an original classification authority cannot be determined, the challenge 25 shall be submitted to the Office of the Chief Security Officer, Administrative Security Division”).

26

10 The SAC alleges a facial constitutional challenge to FISA’s secrecy provisions to the

extent they categorically prohibit the reporting of aggregate data. The Court does not find that

27 they do so restrict the aggregate data at issue here. The Government has, in part, argued that FISA’s statutory nondisclosure provisions, applicable to the existence and contents of individual

28 orders, logically prohibit reporting of aggregate data about the number of such orders. The Court has never found the Government’s logic persuasive on this point. The requirement not to disclose

10

Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 11 of 11

United States District Court Northern District of California

1

Because the Court finds that Twitter has not alleged an affirmative claim for relief based

2 upon Freedman, it need not reach the question of whether the Government’s decision here 3 satisfied those procedural safeguards.11

4 IV. CONCLUSION

5

In sum, given the specific reasons identified in the classified declarations submitted, the

6 Court finds that strict scrutiny is satisfied both substantively and procedurally. The Government’s

7 motion for summary judgment is GRANTED and Twitter’s motion for summary judgment is 8 DENIED.12

9

The Court leaves for another action whether the procedural safeguards—if any—applicable

10 to a system of prior constraints premised upon deeming information “classified” pursuant to

11 Executive Order 13526 meets the standards set forth in Freedman.

12

This terminates Docket Nos. 309, 311.

13

IT IS SO ORDERED.

14 Dated: April 17, 2020

15

______________________________________

YVONNE GONZALEZ ROGERS

16

UNITED STATES DISTRICT JUDGE

17

18

19 a particular order is completely distinct from disclosing the aggregate number of orders. And, indeed, that logic is contradicted by the statutory provision for aggregate data reporting set forth in
20 50 U.S.C. § 1874, which permits “a person subject to a nondisclosure requirement accompanying an order . . . or a national security letter” to report publicly the aggregate number of such orders or

21 letters within certain numerical bands. 50 U.S.C. § 1874(a) (emphasis supplied). Regardless, these allegations are not directed at a lack of procedural safeguards as required by Freedman.

22

11 The Court notes that the Ninth Circuit in In re Nat'l Sec. Letter emphasized that

23 Freedman’s procedural safeguards have been extended to a variety of situations in which the government “requires a speaker to submit proposed speech for review and approval” before

24 publicizing it. In re Nat'l Sec. Letter, 863 F.3d 1110, 1128 (9th Cir. 2017); see also John Doe, Inc. v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008) (“Where expression is conditioned on governmental
25 permission . . . the First Amendment generally requires procedural protections to guard against impermissible censorship.”). The sort of pre-disclosure review and approval process that restricts
26 speech about metadata compiled by a recipient closely resembles the censorship systems raised in Freedman and its progeny. The Government here offered no applicable procedural protections
27 similar to those cited with approval in In re Nat’l Security Letter or Doe v. Mukaskey.

28

12 In light of this Order, the third count is dismissed as moot.

11

 
 Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 1 of 36
ADRMOP,CLOSED,PROTO
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:14−cv−04480−YGR

Twitter, Inc. v. Barr et al Assigned to: Hon. Yvonne Gonzalez Rogers Cause: 28:2201 Declaratory Judgement
Plaintiff Twitter, Inc.

Date Filed: 10/07/2014 Date Terminated: 04/17/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Amanda Lindsay Andrade Perkins Coie LLP 700 Thirteenth Street NW Suite 600 Washington, DC 20005−3960 202−654−6356 Fax: 202−654−6211 Email: AAndrade@perkinscoie.com ATTORNEY TO BE NOTICED
Andrew John Pincus Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263−3220 Fax: (202) 263−3300 Email: apincus@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED
Donald M. Falk Mayer Brown LLP Two Palo Alto Square Suite 300 Palo Alto, CA 94306−2112 650−331−2030 Fax: 650−331−2060 Email: dfalk@mayerbrown.com ATTORNEY TO BE NOTICED
Eric David Miller Perkins Coie LLP 1201 Third Avenue, Ste 4900 Seattle, WA 98101 206−359−3773 Fax: 206−359−4773 Email: EMiller@perkinscoie.com TERMINATED: 02/28/2019
Hayley Lara Berlin Perkins Coie LLP 700 Thirteenth Street, NW, Suite 600 Washington, DC 20005−3960 202−654−6291 Fax: 202−654−9123 Email: HBerlin@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED
James G. Snell Perkins Coie LLP

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 2 of 36
3150 Porter Drive Palo Alto, CA 94304−1212 650−838−4367 Fax: 650−838−4567 Email: jsnell@perkinscoie.com ATTORNEY TO BE NOTICED
Lee H. Rubin Mayer Brown LLP Two Palo Alto Square Suite 300 Palo Alto, CA 94306−2112 (650−331−2000 Fax: (650) 331−2060 Email: lrubin@mayerbrown.com ATTORNEY TO BE NOTICED
Michael A Sussmann Perkins Coie LLP 700 Thirteenth Street, NW, Suite 600 Washington, DC 20005−3960 202−654−6333 Fax: 202−654−9127 Email: MSussmann@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Eric H. Holder, Jr. Attorney General of the United States TERMINATED: 05/22/2015
Defendant United States Department of Justice

represented by Julia Alexandra Heiman United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washigton, DC 20530 949−350−8719 Email: julia.heiman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−0167 Fax: (202) 616−8470 Email: steven.bressler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy United States Department of Justice Civil Division, Federal Programs Branch 1100 L St. NW Washington, DC 20005 202−514−8095 Email: christopher.healy@usdoj.gov ATTORNEY TO BE NOTICED
represented by Julia Alexandra Heiman (See above for address)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 3 of 36

Defendant James B. Comey Director of the Federal Bureau of Investigation
Defendant Federal Bureau of Investigation
Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
Eric Joseph Soskin US Dept of Justice Office of the Assistant Attorney General, Civil Division RFK Main Justice Building Room 3416 Washington, DC 20530 202−514−1500 Email: Eric.Soskin@usdoj.gov TERMINATED: 08/24/2017
represented by Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) TERMINATED: 08/24/2017
represented by Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) TERMINATED: 08/24/2017
represented by

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 4 of 36

Loretta Lynch Attorney General of the United States TERMINATED: 07/06/2017
Defendant Jefferson Sessions Attorney General of the United Staes TERMINATED: 11/16/2018
Defendant Mathew Whitaker Acting Attorney General of the United States TERMINATED: 02/15/2019
Defendant William P. Barr U.S. Attorney General

Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) TERMINATED: 08/24/2017
represented by Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Healy (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Alexandra Heiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Joseph Coppolino U.S. Department of Justice, Civil Division 1100 L Street N.W. Room 11500 Washington, DC 20530 (202) 514−4782dc Email: tony.coppolino@usdoj.gov ATTORNEY TO BE NOTICED
Christopher Robert Healy

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 5 of 36

Amicus Reporters Committee for Freedom of the Press
Amicus Corporations 1 & 2 NSL Recipients
Amicus BuzzFeed, Inc.

(See above for address) ATTORNEY TO BE NOTICED
represented by Townsend KatieLynn Reporters Committee for Freedom of the Press 1156 15th St. NW Suite 1020 Washington, DC 20005 202.795.9300 Email: ktownsend@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kurt Bradford Opsahl Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: kurt@eff.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436−9333 Fax: (415) 436−9993 Email: andrew@eff.org ATTORNEY TO BE NOTICED
David A Greene Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 x105 Fax: 415−436−9993 Email: davidg@eff.org ATTORNEY TO BE NOTICED
represented by Deborah A. Adler Davis Wright Tremaine, LLP 505 Montgomery St., Suite 800 San Francisco, CA 94111−6533 415−276−6565 Fax: 415−276−6599 Email: deborahadler@dwt.com ATTORNEY TO BE NOTICED
Peter Karanjia DLA Piper LLP 500 Eighth Street, NW Washington, DC 20004 202−799−4135 Fax: 202−863−7855 Email: peter.karanjia@dlapiper.com ATTORNEY TO BE NOTICED

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 6 of 36

Amicus First Look Media, Inc.
Amicus Guardian News & Media
Amicus National Public Radio, Inc.
Amicus PEN American Center
Amicus

Thomas R. Burke Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111−6533 415/276−6500 Fax: 415/276−6599 Email: thomasburke@dwt.com ATTORNEY TO BE NOTICED
represented by Deborah A. Adler (See above for address) ATTORNEY TO BE NOTICED
Peter Karanjia (See above for address) ATTORNEY TO BE NOTICED
Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah A. Adler (See above for address) ATTORNEY TO BE NOTICED
Peter Karanjia (See above for address) ATTORNEY TO BE NOTICED
Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah A. Adler (See above for address) ATTORNEY TO BE NOTICED
Peter Karanjia (See above for address) ATTORNEY TO BE NOTICED
Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah A. Adler (See above for address) ATTORNEY TO BE NOTICED
Peter Karanjia (See above for address) ATTORNEY TO BE NOTICED
Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 7 of 36

WP Company LLC dba: The Washington Post
Amicus CloudFlare, Inc.
Amicus CREDO Mobile, Inc.
Amicus A Medium Corporation
Amicus Wickr, Inc.
Amicus Wikimedia Foundation
Amicus Automattic Inc.
Amicus Sonic.net, Inc.

represented by Deborah A. Adler (See above for address) ATTORNEY TO BE NOTICED
Peter Karanjia (See above for address) ATTORNEY TO BE NOTICED
Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann Zeitgeist Law PC 25 Taylor Street San Francisco, CA 94102 415−830−6664 Email: marcia@marciahofmann.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann Law Office of Marcia Hofmann 25 Taylor Street San Francisco, CA 94102 415−830−6664 Email: marcia@marciahofmann.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 8 of 36

Amicus Freedom of the Press Foundation
Amicus Reddit, Inc.
Amicus Mapbox, Inc.
Amicus Wickr Foundation
Amicus American Civil Liberties Union of Southern California
Amicus American Civil Liberties Union of Northern California
Amicus American Civil Liberties Union

represented by Joseph Charles Gratz Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 415−362−6666 Fax: 415−236−6300 Email: jgratz@durietangri.com ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marcia Clare Hofmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Thomas Cagle ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: mcagle@aclunc.org ATTORNEY TO BE NOTICED
represented by Matthew Thomas Cagle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Thomas Cagle (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/07/2014
10/07/2014

# Docket Text
1 COMPLAINT against James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice (Filing fee $ 400, receipt number 0971−8977026.). Filed by Twitter, Inc. (Attachments: # 1 Exhibit Exhibits 1 through 5, # 2 Civil Cover Sheet)(Miller, Eric) (Filed on 10/7/2014) Modified on 10/8/2014 (slhS, COURT STAFF). (Entered: 10/07/2014)
2 Certificate of Interested Entities by Twitter, Inc. and Rule 7.1 Disclosure Statement (Miller, Eric) (Filed on 10/7/2014) (Entered: 10/07/2014)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 9 of 36

10/07/2014 10/07/2014 10/07/2014

3 MOTION of Michael A. Susmann for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 0971−8977180) filed by Twitter, Inc.. (Attachments: # 1 Certificate of Good Standing)(Sussmann, Michael) (Filed on 10/7/2014) Modified on 10/8/2014 (slhS, COURT STAFF). (Entered: 10/07/2014)
4 MOTION of Hayley L. Berlin for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 0971−8977283) filed by Twitter, Inc.. (Attachments: # 1 Certificate of Good Standing)(Berlin, Hayley) (Filed on 10/7/2014) (Entered: 10/07/2014)
5 Case assigned to Magistrate Judge Jacqueline Scott Corley.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

10/07/2014 10/07/2014 10/08/2014 10/08/2014
10/08/2014
10/08/2014
10/08/2014
10/08/2014
10/09/2014 10/09/2014 10/17/2014
10/20/2014 10/20/2014

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (sv, COURT STAFF) (Filed on 10/7/2014) (Entered: 10/07/2014)
6 Proposed Summons. (Miller, Eric) (Filed on 10/7/2014) (Entered: 10/07/2014)
7 Proposed Summons. (Miller, Eric) (Filed on 10/7/2014) (Entered: 10/07/2014)
8 NOTICE of Appearance by James G. Snell (Snell, James) (Filed on 10/8/2014) (Entered: 10/08/2014)
9 ORDER by Magistrate Judge Jacqueline Scott Corley granting 3 Motion for Pro Hac Vice as to Michael Sussmann (ahm, COURT STAFF) (Filed on 10/8/2014) Modified on 1/30/2015 (cpS, COURT STAFF). (Entered: 10/08/2014)
10 ORDER by Magistrate Judge Jacqueline Scott Corley granting 4 Motion for Pro Hac Vice as to Hayley Berlin (ahm, COURT STAFF) (Filed on 10/8/2014) (Entered: 10/08/2014)
11 *posted in error − please see doc. 14 * Summons Issued as to Eric H. Holder, Jr, United States Department of Justice. (slhS, COURT STAFF) (Filed on 10/8/2014) Modified on 10/9/2014 (slhS, COURT STAFF). (Entered: 10/08/2014)
12 *posted in error − please see doc. 15 * Summons Issued as to James B. Comey, Federal Bureau of Investigation. (slhS, COURT STAFF) (Filed on 10/8/2014) Modified on 10/9/2014 (slhS, COURT STAFF). (Entered: 10/08/2014)
13 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/8/2015. Case Management Conference set for 1/15/2015 01:30 PM in Courtroom F, 15th Floor, San Francisco. (slhS, COURT STAFF) (Filed on 10/8/2014) (Entered: 10/08/2014)
14 Summons Reissued as to Eric H. Holder, Jr, United States Department of Justice. (slhS, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
15 Summons Reissued as to James B. Comey, Federal Bureau of Investigation. (slhS, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
16 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice.. (Bressler, Steven) (Filed on 10/17/2014) (Entered: 10/17/2014)
17 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ahm, COURT STAFF) (Filed on 10/20/2014) (Entered: 10/20/2014)
18 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Yvonne Gonzalez Rogers for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case. Signed by Executive Committee on 10/20/14. (sv, COURT STAFF) (Filed on 10/20/2014) (Entered: 10/20/2014)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 10 of 36

11/06/2014
11/07/2014 11/17/2014
12/03/2014 12/03/2014 12/03/2014 12/05/2014 12/05/2014 01/05/2015 01/05/2015 01/09/2015
01/20/2015 01/26/2015

19 CERTIFICATE OF SERVICE by Twitter, Inc. re 14 Summons Reissued, 15 Summons Reissued, 1 Complaint, (Attachments: # 1 Exhibit A − Service on Eric Holder, Attorney General of the United States, # 2 Exhibit B − Service on United States Department of Justice, # 3 Exhibit C − Service on James Comey, Director of the Federal Bureau of Investigation, # 4 Exhibit D − Service on Federal Bureau of Investigation, # 5 Exhibit E − Service on Deputy Attorney General, James M. Cole, # 6 Exhibit F − Service on United States Attorney for the Northern District of California)(Miller, Eric) (Filed on 11/6/2014) (Entered: 11/06/2014)
20 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 1/19/2015. Initial Case Management Conference set for 1/26/2015 02:00 PM before Judge Yvonne Gonzalez Rogers in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Standing Order) (fs, COURT STAFF) (Filed on 11/7/2014) (Entered: 11/07/2014)
21 NOTICE Regarding Classified Document by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice re 1 Complaint, (Attachments: # 1 Exhibit 1. Unclassified, Redacted Version of Plaintiff's Proposed "Transparency Report", # 2 Exhibit 2. October 8, 2014 Letter from Steven Bressler to Michael Sussmann)(Bressler, Steven) (Filed on 11/17/2014) Modified on 11/18/2014 (cpS, COURT STAFF). (Entered: 11/17/2014)
22 NOTICE of Appearance by Julia Alexandra Berman (Berman, Julia) (Filed on 12/3/2014) (Entered: 12/03/2014)
23 STIPULATION to Extend Time to Respond to Complaint filed by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice., Twitter Inc (Berman, Julia) (Filed on 12/3/2014) Modified on 12/4/2014 (cpS, COURT STAFF). (Entered: 12/03/2014)
24 STIPULATION WITH PROPOSED ORDER Requesting to Set a Briefing Schedule filed by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice, Twitter Inc. (Attachments: # 1 Proposed Order, # 2 Declaration)(Berman, Julia) (Filed on 12/3/2014) Modified on 12/4/2014 (cpS, COURT STAFF). (Entered: 12/03/2014)
25 ORDER by Judge Yvonne Gonzalez Rogers granting 24 Stipulation re Briefing Schedule (fs, COURT STAFF) (Filed on 12/5/2014) (Entered: 12/08/2014)
Set/Reset Deadlines as to File Motion to Dismiss Complaint by 1/9/15;Responses due by 2/6/2015. Replies due by 2/20/2015. Motion Hearing set for 3/10/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 12/5/2014) (Entered: 12/08/2014)
26 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Snell, James) (Filed on 1/5/2015) (Entered: 01/05/2015)
27 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Bressler, Steven) (Filed on 1/5/2015) (Entered: 01/05/2015)
28 MOTION to Dismiss (Partial) filed by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice. Motion Hearing set for 3/10/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 2/6/2015. Replies due by 2/20/2015. (Attachments: # 1 Proposed Order)(Bressler, Steven) (Filed on 1/9/2015) (Entered: 01/09/2015)
29 JOINT CASE MANAGEMENT STATEMENT filed by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice, Twitter. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 1/20/2015) Modified on 1/21/2015 (vlkS, COURT STAFF). (Entered: 01/20/2015)
31 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Initial Case Management Conference held on 1/26/2015.Court Reporter : Raynee Mercado. Plaintiff Attorney James Snell and Michael Sussmann. Defendant Attorney Steven Bressler and Julia Berman. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 1/26/2015) Modified on 1/30/2015 (cpS, COURT STAFF). (Entered: 01/29/2015)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 11 of 36

01/27/2015 01/30/2015 02/03/2015
02/06/2015 02/12/2015
02/13/2015 02/13/2015
02/17/2015
02/17/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015

30 TRANSCRIPT ORDER by Twitter, Inc. for Court Reporter Raynee Mercado. (Snell, James) (Filed on 1/27/2015) (Entered: 01/27/2015)
32 TRANSCRIPT ORDER by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice for Court Reporter Raynee Mercado. (Bressler, Steven) (Filed on 1/30/2015) (Entered: 01/30/2015)
33 Transcript of Proceedings held on January 26, 2015, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, Telephone number 510−502−6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 30 Transcript Order, 32 Transcript Order ) Release of Transcript Restriction set for 5/4/2015. (Related document(s) 30 , 32 ) (rhm) (Filed on 2/3/2015) (Entered: 02/03/2015)
34 RESPONSE (re 28 MOTION to Dismiss (Partial) ) Opposition to Partial Motion to Dismiss filed byTwitter, Inc.. (Attachments: # 1 Proposed Order)(Snell, James) (Filed on 2/6/2015) (Entered: 02/06/2015)
35 STIPULATION WITH PROPOSED ORDER to Set a Revised Briefing Schedule filed by Twitter, Inc., Eric H. Holder, Jr.. (Attachments: # 1 Declaration, # 2 Proposed Order)(Snell, James) (Filed on 2/12/2015) Modified on 2/12/2015 (cpS, COURT STAFF). (Entered: 02/12/2015)
36 ORDER by Judge Yvonne Gonzalez Rogers granting 35 Stipulation Setting Revised Briefing Schedule (fs, COURT STAFF) (Filed on 2/13/2015) (Entered: 02/13/2015)
Set/Reset Deadlines as to 28 MOTION to Dismiss (Partial). 2/17/15 for amicus briefs, if any;Replies due by 3/4/2015. Motion Hearing set for 3/31/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 2/13/2015) (Entered: 02/13/2015)
37 MOTION to File Amicus Curiae Brief filed by Reporters Committee for Freedom of the Press. Responses due by 3/3/2015. Replies due by 3/10/2015. (Attachments: # 1 Exhibit Amicus Brief)(KatieLynn, Townsend) (Filed on 2/17/2015) (Entered: 02/17/2015)
38 NOTICE of Appearance by David A Greene (Greene, David) (Filed on 2/17/2015) (Entered: 02/17/2015)
39 NOTICE of Appearance by Andrew Gellis Crocker (Crocker, Andrew) (Filed on 2/17/2015) (Entered: 02/17/2015)
40 NOTICE of Appearance by Kurt Bradford Opsahl (Opsahl, Kurt) (Filed on 2/17/2015) (Entered: 02/17/2015)
41 STIPULATION WITH PROPOSED ORDER for [Proposed] Amici Corps. 1 & 2 to Proceed Under Pseudonym filed by Corporations 1 & 2. (Opsahl, Kurt) (Filed on 2/17/2015) (Entered: 02/17/2015)
42 MOTION for Leave to File Brief Amici Curiae filed by Corporations 1 & 2. (Attachments: # 1 Exhibit [Proposed] Amici Brief, # 2 Proposed Order)(Opsahl, Kurt) (Filed on 2/17/2015) (Entered: 02/17/2015)
43 NOTICE of Appearance by Thomas R. Burke (Burke, Thomas) (Filed on 2/17/2015) (Entered: 02/17/2015)
44 NOTICE of Appearance by Deborah A. Adler (Adler, Deborah) (Filed on 2/17/2015) (Entered: 02/17/2015)
45 NOTICE of Appearance by Peter Karanjia (Karanjia, Peter) (Filed on 2/17/2015) (Entered: 02/17/2015)
46 MOTION for Leave to File Amici Curiae Brief filed by CloudFlare, Inc., CREDO Mobile, Inc., A Medium Corporation, Wickr, Inc., Wikimedia Foundation, Automattic

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 12 of 36

02/17/2015 02/17/2015 02/17/2015
02/17/2015
02/17/2015 02/17/2015 02/18/2015 02/18/2015 02/18/2015
02/19/2015
03/04/2015 03/10/2015
03/18/2015

Inc., Sonic.net, Inc.. (Attachments: # 1 Amici Curiae Brief, # 2 Declaration of Marcia Hofmann, # 3 Proposed Order)(Hofmann, Marcia) (Filed on 2/17/2015) (Entered: 02/17/2015)
47 NOTICE of Appearance by Marcia Clare Hofmann (Hofmann, Marcia) (Filed on 2/17/2015) (Entered: 02/17/2015)
48 NOTICE by BuzzFeed, Inc., First Look Media, Inc., Guardian News & Media, National Public Radio, Inc., PEN American Center, WP Company LLC dba: The Washington Post RULE 7.1 DISCLOSURE STATEMENT FOR MEDIA AND WRITERS AMICI (Burke, Thomas) (Filed on 2/17/2015) (Entered: 02/17/2015)
49 MOTION to File Amicus Curiae Brief filed by BuzzFeed, Inc., First Look Media, Inc., Guardian News & Media, National Public Radio, Inc., PEN American Center, WP Company LLC dba: The Washington Post. Responses due by 3/3/2015. Replies due by 3/10/2015. (Attachments: # 1 Brief for Media and Writers Amici, # 2 Proposed Order)(Burke, Thomas) (Filed on 2/17/2015) (Entered: 02/17/2015)
50 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−9294676.) filed by BuzzFeed, Inc., First Look Media, Inc., Guardian News & Media, National Public Radio, Inc., PEN American Center, WP Company LLC dba: The Washington Post. (Adler, Deborah) (Filed on 2/17/2015) Modified on 2/18/2015 (cpS, COURT STAFF). (Entered: 02/17/2015)
51 NOTICE of Appearance by Joseph Charles Gratz for Amicus Curiae Freedom of the Press Foundation (Gratz, Joseph) (Filed on 2/17/2015) (Entered: 02/17/2015)
52 MOTION to File Amicus Curiae Brief filed by Freedom of the Press Foundation. Responses due by 3/3/2015. Replies due by 3/10/2015. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gratz, Joseph) (Filed on 2/17/2015) (Entered: 02/17/2015)
53 NOTICE of Appearance by Townsend KatieLynn (KatieLynn, Townsend) (Filed on 2/18/2015) (Entered: 02/18/2015)
54 ORDER by Judge Yvonne Gonzalez Rogers GRANTING 41 Stipulation for Proposed Amici Corps. 1 & 2 to Proceed Under Pseudonym (ygrlc1, COURT STAFF) (Filed on 2/18/2015) (Entered: 02/18/2015)
55 ORDER GRANTING LEAVE TO FILE AMICUS CURIAE BRIEFS by Judge Yvonne Gonzalez Rogers granting 37 Motion to File Amicus Curiae Brief; granting 42 Motion for Leave to File; granting 46 Motion for Leave to File; granting 49 Motion to File Amicus Curiae Brief; granting 52 Motion to File Amicus Curiae Brief. The briefs submitted with the motions and requests are DEEMED FILED as of February 17, 2015, and no additional filing is necessary. (fs, COURT STAFF) (Filed on 2/18/2015) (Entered: 02/19/2015)
56 ORDER by Judge Yvonne Gonzalez Rogers granting 50 Motion for Pro Hac Vice as to Peter Karanjia representing Amicus parties: Buzz Feed Inc.; First Look Media Inc.; Guardian News & Media; National Public Radio, Inc.; PEN American Center; WP Company LLC dba the Washington Post. (fs, COURT STAFF) (Filed on 2/19/2015) (Entered: 02/19/2015)
57 REPLY (re 28 MOTION to Dismiss (Partial) ) filed byJames B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice. (Bressler, Steven) (Filed on 3/4/2015) (Entered: 03/04/2015)
58 NOTICE of Errata re: Amicus Curiae Brief of the Reporters Committee for Freedom of the Press 37 −1 by Reporters Committee for Freedom of the Press (Attachments: # 1 Errata Corrected Brief Amicus Curiae of the Reporters Committee for Freedom of the Press)(KatieLynn, Townsend) (Filed on 3/10/2015) Modified on 3/11/2015 (cpS, COURT STAFF). (Entered: 03/10/2015)
59 CLERK'S NOTICE CONTINUING HEARING DATE ON DEFENDANTS' PARTIAL MOTION TO DISMISS, Set/Reset Deadlines as to 28 MOTION to Dismiss (Partial). Motion Hearing set for 3/31/2015 is CONTINUED to Tuesday, 4/14/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.
(This is a text only docket entry, there is no document associated with this notice.)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 13 of 36

03/27/2015 03/30/2015
05/05/2015
05/06/2015 05/18/2015
05/18/2015 05/22/2015 06/03/2015 06/09/2015 06/11/2015 06/16/2015 06/19/2015

(fs, COURT STAFF) (Filed on 3/18/2015) (Entered: 03/18/2015)
60 STIPULATION WITH PROPOSED ORDER to Request to Continue Hearing on Defendants' Partial Motion to Dismiss filed by Twitter, Inc.., Eric H. Holder, Jr. (Attachments: # 1 Declaration, # 2 Proposed Order)(Sussmann, Michael) (Filed on 3/27/2015) Modified on 3/30/2015 (cpS, COURT STAFF). (Entered: 03/27/2015)
61 ORDER CONTINUING HEARING ON DEFENDANTS' PARTIAL MOTION TO DISMISS;, Set/Reset Deadlines as to 28 MOTION to Dismiss (Partial). Motion Hearing set for 4/14/2015 is CONTINUED to 5/5/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.. Signed by Judge Yvonne Gonzalez Rogers on 3/30/15. (fs, COURT STAFF) (Filed on 3/30/2015) (Entered: 03/30/2015)
62 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 5/5/2015 re 28 MOTION to Dismiss (Partial) filed by James B. Comey, Eric H. Holder, Jr., United States Department of Justice, Federal Bureau of Investigation Court Reporter Diane Skillman. Plaintiff Attorney Eric Miller. Defendant Attorney Steven Bressler. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 5/5/2015) (Entered: 05/06/2015)
63 TRANSCRIPT ORDER by Twitter, Inc. for Court Reporter Diane Skillman. (Snell, James) (Filed on 5/6/2015) (Entered: 05/06/2015)
64 Transcript of Proceedings held on May 5, 2015, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, Telephone number 510−451−2930, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 63 Transcript Order ) Release of Transcript Restriction set for 8/17/2015. (Related documents(s) 63 ) (Skillman, Diane) (Filed on 5/18/2015) (Entered: 05/18/2015)
65 TRANSCRIPT ORDER by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice for Court Reporter Diane Skillman. (Bressler, Steven) (Filed on 5/18/2015) (Entered: 05/18/2015)
66 RESPONSE to Plaintiff's "Claims Tracking Table" by James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, United States Department of Justice. (Attachments: # 1 Exhibit Copy of Plaintiff's "Claims Tracking Table", # 2 Exhibit Notice Regarding Classified Exhibit 2)(Bressler, Steven) (Filed on 5/22/2015) (Entered: 05/22/2015)
67 NOTICE by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice Regarding Enactment of the USA FREEDOM Act (Attachments: # 1 Exhibit The USA FREEDOM Act of 2015)(Bressler, Steven) (Filed on 6/3/2015) (Entered: 06/03/2015)
68 NOTICE by Twitter, Inc. Regarding Enactment of USA Freedom Act (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Snell, James) (Filed on 6/9/2015) (Entered: 06/09/2015)
69 ORDER DIRECTING FURTHER BRIEFING RE: EFFECT OF RECENT LEGISLATION. Signed by Judge Yvonne Gonzalez Rogers on 6/11/15. (fs, COURT STAFF) (Filed on 6/11/2015) (Entered: 06/11/2015)
70 MOTION for leave to appear in Pro Hac Vice of Amanda L. Andrade ( Filing fee $ 305, receipt number 0971−9605206.) filed by Twitter, Inc.. (Attachments: # 1 Certificate of Good Standing)(Andrade, Amanda) (Filed on 6/16/2015) (Entered: 06/16/2015)
71 ORDER by Judge Yvonne Gonzalez Rogers granting 70 Motion for Pro Hac Vice as to Amanda L. Andrade representing Plaintiff Twitter Inc. (fs, COURT STAFF) (Filed on 6/19/2015) (Entered: 06/19/2015)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 14 of 36

06/23/2015 06/29/2015 07/17/2015 07/17/2015 08/07/2015 08/07/2015 08/28/2015 09/04/2015
09/10/2015 09/11/2015 09/11/2015 09/28/2015 09/28/2015 10/13/2015

72 STIPULATION WITH PROPOSED ORDER to Set a Revised Briefing Schedule filed by Twitter, Inc., Loretta E. Lynch. (Attachments: # 1 Declaration, # 2 Proposed Order)(Snell, James) (Filed on 6/23/2015) Modified on 6/24/2015 (cpS, COURT STAFF). (Entered: 06/23/2015)
73 ORDER by Judge Yvonne Gonzalez Rogers granting 72 Stipulation Setting Revised Briefing Schedule. (fs, COURT STAFF) (Filed on 6/29/2015) (Entered: 06/29/2015)
74 Supplemental Brief Regarding the USA FREEDOM Act of 2015 re 69 Order filed byJames B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Related document(s) 69 ) (Bressler, Steven) (Filed on 7/17/2015) Modified on 7/20/2015 (cpS, COURT STAFF). (Entered: 07/17/2015)
75 Opening Supplemental Brief on Effect of Recent Legislation re 69 Order filed byTwitter, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 69 ) (Sussmann, Michael) (Filed on 7/17/2015) Modified on 7/20/2015 (cpS, COURT STAFF). (Entered: 07/17/2015)
76 Reply Supplemental Brief on Effect of Recent Legislation re 74 Supplemental Brief, filed byTwitter, Inc.. (Related document(s) 74 ) (Sussmann, Michael) (Filed on 8/7/2015) Modified on 8/10/2015 (cpS, COURT STAFF). (Entered: 08/07/2015)
77 Defendants' Reply Addressing Plaintiff's Supplemental Brief Regarding the USA FREEDOM Act filed byJames B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Attachments: # 1 Exhibit 1)(Related document(s) 75 ) (Berman, Julia) (Filed on 8/7/2015) Modified on 8/10/2015 (cpS, COURT STAFF). (Entered: 08/07/2015)
78 NOTICE by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice of Recent Authority (Attachments: # 1 Recent Order of the U.S. Court of Appeals for the Ninth Circuit)(Bressler, Steven) (Filed on 8/28/2015) (Entered: 08/28/2015)
79 CLERK'S NOTICE SETTING HEARING RE SUPPLEMENTAL BRIEFING.Hearing re Supplemental Briefing [Order at Dkt. No. 73 ] is set for Tuesday, 9/22/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 9/4/2015) (Entered: 09/04/2015)
80 STIPULATION WITH PROPOSED ORDER to Continuing Hearing on Effect of Recent Legislation filed by Twitter, Inc., Loretta E. Lynch. (Attachments: # 1 Declaration of Michael A. Sussmann, # 2 Proposed Order)(Sussmann, Michael) (Filed on 9/10/2015) Modified on 9/11/2015 (cpS, COURT STAFF). (Entered: 09/10/2015)
81 ORDER by Judge Yvonne Gonzalez Rogers granting 80 Stipulation/Request to Continue Hearing re: Effect of USA Freedom Act; Directing the Filing of Supplemental Briefing. (fs, COURT STAFF) (Filed on 9/11/2015) (Entered: 09/11/2015)
Set/Reset Deadlines as to 28 MOTION to Dismiss (Partial). Motion Hearing set for 9/22/2015 is CONTINUED to 10/13/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 9/11/2015) (Entered: 09/11/2015)
82 Response to Court's Four Questions on Effect of Recent Legislation filed byTwitter, Inc.. (Sussmann, Michael) (Filed on 9/28/2015) Modified on 9/29/2015 (cpS, COURT STAFF). (Entered: 09/28/2015)
83 Supplemental Brief in Response re 81 Order on Stipulation filed byJames B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Related document(s) 81 ) (Bressler, Steven) (Filed on 9/28/2015) Modified on 9/29/2015 (cpS, COURT STAFF). (Entered: 09/28/2015)
84 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 10/13/2015 re 28 MOTION to Dismiss (Partial)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 15 of 36

10/14/2015 10/14/2015 10/21/2015
11/13/2015 11/16/2015 11/19/2015 11/23/2015 01/14/2016 01/15/2016
01/15/2016

filed by James B. Comey, Eric H. Holder, Jr., United States Department of Justice, Federal Bureau of Investigation. Court Reporter Name Raynee Mercado. Plaintiff Attorney Michael Sussman. Defendant Attorney Steven Bressler. Attachment MINUTES.(fs, COURT STAFF) (Date Filed: 10/13/2015) (Entered: 10/14/2015)
85 ORDER DENYING MOTION TO DISMISS AS MOOT AND, ON THE COURT'S OWN MOTION, ORDERING FILING OF AMENDED COMPLAINT IN LIGHT OF RECENT LEGISLATION by Judge Yvonne Gonzalez Rogers ; denying 28 Motion to Dismiss. (fs, COURT STAFF) (Filed on 10/14/2015) (Entered: 10/14/2015)
86 TRANSCRIPT ORDER by Twitter, Inc. for Court Reporter Raynee Mercado. (Snell, James) (Filed on 10/14/2015) (Entered: 10/14/2015)
87 Transcript of Proceedings held on October 13, 2015, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 86 Transcript Order ) Release of Transcript Restriction set for 1/19/2016. (Related document(s) 86 ) (rhm) (Filed on 10/21/2015) (Entered: 10/21/2015)
88 AMENDED COMPLAINT for Declaratory Judgment and Injunctive Relief 28 U.S.C. §§ 2201 and 2202 against All Defendants. Filed byTwitter, Inc.. (Snell, James) (Filed on 11/13/2015) (Entered: 11/13/2015)
89 CLERK'S NOTICE VACATING THE FRIDAY, NOVEMBER 20, 2015 AT 9:01AM COMPLIANCE HEARING.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 11/16/2015) (Entered: 11/16/2015)
90 MOTION for Extension of Time to File Response/Reply as to 88 Amended Complaint filed by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 11/19/2015) Modified on 11/20/2015 (cpS, COURT STAFF). (Entered: 11/19/2015)
91 ORDER by Judge Gonzalez Rogers granting 90 Motion for Extension of Time to File Response/Reply 88 Amended Complaint Response to Amended Complaint due by 1/15/2016. (ygrlc1, COURT STAFF) (Filed on 11/23/2015) (Entered: 11/23/2015)
92 STIPULATION WITH PROPOSED ORDER Requesting to Set a Briefing Schedule filed by Twitter, Inc.. (Attachments: # 1 Declaration of Michael A. Sussmann, # 2 Proposed Order)(Snell, James) (Filed on 1/14/2016) (Entered: 01/14/2016)
93 ORDER GRANTING IN PART STIPULATED REQUEST TO SET BRIEFING SCHEDULE, AS MODIFIED BY THE COURT. Set/Reset Deadlines as to Defendants' Anticipated Motion to Dismiss: Responses due by 2/5/2016. Replies due by 2/26/2016. Motion Hearing set for 3/15/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 1/15/16. (fs, COURT STAFF) (Filed on 1/15/2016) (Entered: 01/15/2016)
94 MOTION to Dismiss the Amended Complaint filed by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. Motion Hearing set for 3/15/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 2/5/2016. Replies due by 2/26/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 1/15/2016) (Entered: 01/15/2016)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 16 of 36

02/05/2016 02/05/2016
02/05/2016 02/19/2016
02/23/2016 02/23/2016 02/24/2016 02/25/2016 03/02/2016 03/02/2016 03/03/2016 03/10/2016

95 NOTICE of Change of Law Practice Name by A Medium Corporation, Automattic Inc., CREDO Mobile, Inc., CloudFlare, Inc., Wikimedia Foundation, Reddit, Inc., Mapbox, Inc., Wickr Foundation (Hofmann, Marcia) (Filed on 2/5/2016) Modified on 2/8/2016 (cpS, COURT STAFF). (Entered: 02/05/2016)
96 MOTION for Leave to File Amici Curiae Brief filed by A Medium Corporation, Automattic Inc., CREDO Mobile, Inc., CloudFlare, Inc., Mapbox, Inc., Reddit, Inc., Wickr Foundation, Wikimedia Foundation. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Hofmann, Marcia) (Filed on 2/5/2016) (Entered: 02/05/2016)
97 RESPONSE (re 94 MOTION to Dismiss the Amended Complaint ) filed byTwitter, Inc.. (Snell, James) (Filed on 2/5/2016) (Entered: 02/05/2016)
98 MOTION for Leave to File Brief as Amici Curiae in Support of Plaintiff and for 3−day Extension of Time for Government's Reply filed by BuzzFeed, Inc., First Look Media, Inc., Guardian News & Media, National Public Radio, Inc., PEN American Center, WP Company LLC dba: The Washington Post. (Attachments: # 1 Brief for Media and Writers Amici, # 2 Proposed Order)(Karanjia, Peter) (Filed on 2/19/2016) (Entered: 02/19/2016)
99 ORDER by Judge Yvonne Gonzalez Rogers granting 96 Motion for Leave to File Brief.(fs, COURT STAFF) (Filed on 2/23/2016) (Entered: 02/23/2016)
100 ORDER by Judge Yvonne Gonzalez Rogers granting 98 Motion for Leave to File Brief of Media and Writers AMICI and for 3−day Extension of Time for Government's Reply. (fs, COURT STAFF) (Filed on 2/23/2016) (Entered: 02/23/2016)
101 Brief for Media and Writers Amici filed byBuzzFeed, Inc., First Look Media, Inc., Guardian News & Media, National Public Radio, Inc., PEN American Center, WP Company LLC dba: The Washington Post. (Karanjia, Peter) (Filed on 2/24/2016) Modified on 2/25/2016 (cpS, COURT STAFF). (Entered: 02/24/2016)
102 ASSOCIATION of Counsel by Twitter, Inc.. (Rubin, Lee) (Filed on 2/25/2016) (Entered: 02/25/2016)
103 MOTION for leave to appear in Pro Hac Vice of Andrew J. Pincus ( Filing fee $ 305, receipt number 0971−10258174.) filed by Twitter, Inc.. (Pincus, Andrew) (Filed on 3/2/2016) (Entered: 03/02/2016)
104 REPLY (re 94 MOTION to Dismiss the Amended Complaint ) filed byJames B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Berman, Julia) (Filed on 3/2/2016) (Entered: 03/02/2016)
105 ORDER by Judge Yvonne Gonzalez Rogers granting 103 Motion for Pro Hac Vice as to Andrew J. Pincus representing Plaintiff Twitter, Inc. (fs, COURT STAFF) (Filed on 3/3/2016) (Entered: 03/03/2016)
106 CLERK'S NOTICE MOVING MOTION HEARING.The Motion to Dismiss [Dkt. no. 94] previously set for Tuesday, March 15, 2016 is ADVANCED to MONDAY, March 14, 2016 at 2:30pm. The 3/15/16 hearing date is VACATED.

Motion Hearing is set for 3/14/2016 02:30 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Set/Reset Deadlines as to 94 MOTION to Dismiss the Amended Complaint. Motion Hearing set for Monday, 3/14/2016 02:30 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.

03/10/2016 03/11/2016

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 3/10/2016) (Entered: 03/10/2016)
107 Clerk's Notification of Request for Video Recording re 3/14/2016 hearing. Parties are to submit the attached form via email only to cameras@cand.uscourts.gov by 5:00 p.m. Pacific on March 11, 2016. (Attachments: # 1 Party Response to Request for Video Recording) (zml, COURT STAFF) (Filed on 3/10/2016) (Entered: 03/10/2016)
108 Clerk's Notice re Proposed Video Recording of 3/14/2016 Proceeding. (zml, COURT STAFF) (Filed on 3/11/2016) (Entered: 03/11/2016)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 17 of 36

03/14/2016
03/15/2016 03/17/2016 03/30/2016
05/02/2016 05/24/2016 06/13/2016 06/13/2016 06/16/2016 06/17/2016 06/17/2016 07/05/2016 08/23/2016

109 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 3/14/2016 re 94 MOTION to Dismiss the Amended Complaint filed by Loretta E. Lynch, James B. Comey, United States Department of Justice, Federal Bureau of Investigation.Total Time in Court 1:08. Court Reporter Name Raynee Mercado. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 3/14/2016) (Entered: 03/14/2016)
110 TRANSCRIPT ORDER by Twitter, Inc. for Court Reporter Raynee Mercado. (Snell, James) (Filed on 3/15/2016) (Entered: 03/15/2016)
111 TRANSCRIPT ORDER by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice for Court Reporter Raynee Mercado. (Berman, Julia) (Filed on 3/17/2016) (Entered: 03/17/2016)
112 Transcript of Proceedings held on March 14, 2016, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 110 Transcript Order, 111 Transcript Order ) Release of Transcript Restriction set for 6/28/2016. (Related document(s) 110 , 111 ) (rhm) (Filed on 3/30/2016) (Entered: 03/30/2016)
113 ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 94 Motion to Dismiss Amended Complaint. (fs, COURT STAFF) (Filed on 5/2/2016) (Entered: 05/02/2016)
114 AMENDED COMPLAINT Second Amended Complaint for Declaratory Judgment and Injunctive Relief Pursuant to 28 U.S.C. Sections 2201 and 2202 against All Defendants. Filed byTwitter, Inc.. (Pincus, Andrew) (Filed on 5/24/2016) (Entered: 05/24/2016)
115 MOTION for Extension of Time to File Response/Reply as to 114 Amended Complaint filed by James B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 6/13/2016) (Entered: 06/13/2016)
116 Letter from Defendants pursuant to Paragraph 9(a) of the Courts Standing Order for Civil Cases . (Berman, Julia) (Filed on 6/13/2016) (Entered: 06/13/2016)
117 Letter from Andrew J. Pincus, for Twitter, Inc. Responding to the Government's June 13, 2016 letter requesting a pre−filing conference. (Pincus, Andrew) (Filed on 6/16/2016) (Entered: 06/16/2016)
118 RESPONSE (re 115 MOTION for Extension of Time to File Response/Reply as to 114 Amended Complaint ) filed byTwitter, Inc.. (Pincus, Andrew) (Filed on 6/17/2016) (Entered: 06/17/2016)
119 ORDER DENYING GOVERNMENT'S REQUEST FOR SUMMARY JUDGMENT CONFERENCE; SETTING DEADLINE FOR RESPONSIVE PLEADING by Judge Yvonne Gonzalez Rogers granting in part 115 Motion for Extension of Time to File Response/Reply. (fs, COURT STAFF) (Filed on 6/17/2016) (Entered: 06/17/2016)
120 ANSWER to Second Amended Complaint byJames B. Comey, Federal Bureau of Investigation, Loretta E. Lynch, United States Department of Justice. (Berman, Julia) (Filed on 7/5/2016) Modified on 7/6/2016 (cpS, COURT STAFF). (Entered: 07/05/2016)
121 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 9/26/2016. Case Management Conference set for Monday, 10/3/2016 02:00 PM before Hon. Judge Yvonne Gonzalez Rogers in Courtroom 1, 4th Floor, Oakland.

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 8/23/2016) (Entered: 08/23/2016)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 18 of 36

08/24/2016

122 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE DATE TO WEDNESDAY, OCTOBER 5, 2016. Case Management Statement due by 9/28/2016. Further Case Management Conference set for 10/3/2016 is CONTINUED to specially set date of WEDNESDAY, 10/5/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland.

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 8/24/2016) (Entered: 08/24/2016)
09/21/2016 123

*******FILED IN ERROR. RE−FILED AT DOCUMENT # 124 *******

09/22/2016
09/23/2016 09/27/2016 09/28/2016 10/03/2016
10/05/2016 10/05/2016 10/14/2016

ADMINISTRATIVE MOTION for an Order Directing Defendants to Initiate an Expedited Security Clearance Process for Plaintiff's Counsel filed by Twitter, Inc.. Responses due by 9/26/2016. (Attachments: # 1 Declaration of Andrew John Pincus, # 2 Declaration of Lee H. Rubin, # 3 Proposed Order)(Pincus, Andrew) (Filed on 9/21/2016) Modified on 9/22/2016 (cpS, COURT STAFF). (Entered: 09/21/2016)
124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel (CORRECTION OF DOCKET # 123) filed by Twitter, Inc.. Motion Hearing set for 11/8/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 10/6/2016. Replies due by 10/13/2016. (Attachments: # 1 Declaration by Andrew John Pincus, # 2 Declaration by Lee H. Rubin, # 3 Proposed Order)(Pincus, Andrew) (Filed on 9/22/2016) Modified on 9/22/2016 (cpS, COURT STAFF). (Entered: 09/22/2016)
125 STIPULATION WITH PROPOSED ORDER continue the case management conference currently scheduled for October 5, 2016 filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice, Twitter Inc. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 9/23/2016) Modified on 9/26/2016 (cpS, COURT STAFF). (Entered: 09/23/2016)
126 ORDER by Judge Yvonne Gonzalez Rogers granting 125 Stipulation to Continue Case Management Conference to October 24, 2016. (fs, COURT STAFF) (Filed on 9/27/2016) (Entered: 09/27/2016)
Set/Reset Hearing re 126 Order on Stipulation. Further Case Management Conference set for 10/24/2016 02:00 PM. (cpS, COURT STAFF) (Filed on 9/28/2016) (Entered: 09/28/2016)
127 STIPULATION WITH PROPOSED ORDER requesting to extend the deadlines for the response to and reply in support of Plaintiffs Motion for an Order Directing Defendants to Initiate and Expedited Security Clearance Process for Plaintiffs Counsel filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice, Twitter Inc. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 10/3/2016) Modified on 10/4/2016 (cpS, COURT STAFF). (Entered: 10/03/2016)
128 ORDER by Judge Yvonne Gonzalez Rogers granting 127 Stipulation. Hearing currently set for 11/8/16 is CONTINUED to 11/22/16 at 9:00AM. (fs, COURT STAFF) (Filed on 10/5/2016) (Entered: 10/05/2016)
Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel. Responses due by 10/18/2016. Replies due by 10/28/2016. Motion Hearing set for 11/22/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 10/5/2016) (Entered: 10/05/2016)
129 ADMINISTRATIVE MOTION for a 3−Day Extension of Time to Respond to the Plaintiff's Motion for an Order Directing Defendants to Initiate an Expedited Security Clearance Process for Plaintiffs Counsel filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Responses due by 10/18/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 10/14/2016) (Entered: 10/14/2016)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 19 of 36

10/15/2016
10/17/2016 10/17/2016 10/17/2016 10/18/2016 10/21/2016 10/24/2016
10/28/2016 11/02/2016 11/07/2016 11/07/2016
11/09/2016

130 NOTICE of Non−Opposition by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice re 129 ADMINISTRATIVE MOTION for a 3−Day Extension of Time to Respond to the Plaintiff's Motion for an Order Directing Defendants to Initiate an Expedited Security Clearance Process for Plaintiffs Counsel Notice of Plaintiff's Non−Opposition to Defendants' Administrative Motion (Berman, Julia) (Filed on 10/15/2016) Modified on 10/17/2016 (cpS, COURT STAFF). (Entered: 10/15/2016)
131 ORDER by Judge Yvonne Gonzalez Rogers granting 129 Administrative Motion for Three Day Extension. (fs, COURT STAFF) (Filed on 10/17/2016) (Entered: 10/17/2016)
Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel. Responses due by 10/21/2016. Replies due by 11/2/2016. (fs, COURT STAFF) (Filed on 10/17/2016) (Entered: 10/17/2016)
Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel. Motion Hearing set for 11/22/2016 09:00 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 10/17/2016) (Entered: 11/04/2016)
132 Updated Joint Case Management Statement filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice, Twitter Inc. (Attachments: # 1 Declaration of Julia Berman Regarding October 17, 2016 Technical Failure, Submitted Pursuant to Local Rule 5−1(e)(5))(Berman, Julia) (Filed on 10/18/2016) Modified on 10/19/2016 (cpS, COURT STAFF). (Entered: 10/18/2016)
133 RESPONSE (re 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel ) filed byJames B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Berman, Julia) (Filed on 10/21/2016) (Entered: 10/21/2016)
134 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Further Case Management Conference held on 10/24/2016. Government shall file Motion for Summary Judgment by 11/15/2016. Responses due by 12/6/2016. Replies due by 12/20/2016. Motion Hearing set for 1/17/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.FTR Time 2:20pm−3:01pm. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 10/24/2016) (Entered: 10/28/2016)
135 TRANSCRIPT ORDER for proceedings held on 10/24/16 before Hon. Yvonne Gonzalez Rogers by Twitter, Inc., for Court Reporter FTR − Oakland. (Rubin, Lee) (Filed on 10/28/2016) (Entered: 10/28/2016)
136 REPLY (re 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel ) filed byTwitter, Inc.. (Pincus, Andrew) (Filed on 11/2/2016) (Entered: 11/02/2016)
137 NOTICE of Appearance by Eric Joseph Soskin as attorney for Defendants (Soskin, Eric) (Filed on 11/7/2016) (Entered: 11/07/2016)
138 Transcript of Proceedings of the official sound recording held on 10/24/16, before Judge Yvonne Gonzalez Rogers. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 2:20 − 3:01. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 135 Transcript Order ) Redaction Request due 11/28/2016. Redacted Transcript Deadline set for 12/8/2016. Release of Transcript Restriction set for 2/6/2017. (Related documents(s) 135 ) (tgb, COURT STAFF) (Filed on 11/7/2016) (Entered: 11/07/2016)
139 TRANSCRIPT ORDER for proceedings held on 10/24/2016 before Hon. Yvonne Gonzalez Rogers by James B. Comey, Federal Bureau of Investigation, Loretta Lynch,

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 20 of 36

11/09/2016
11/14/2016
11/15/2016 11/15/2016 11/16/2016

United States Department of Justice, for Court Reporter FTR − Oakland. (Berman, Julia) (Filed on 11/9/2016) (Entered: 11/09/2016)
140 ADMINISTRATIVE MOTION for a 2−Day Extension of Time for Defendants to Submit their Motion for Summary Judgment filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Responses due by 11/14/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 11/9/2016) (Entered: 11/09/2016)
141 ADMINISTRATIVE MOTION for Extension of Time to Submit Defendants' Motion for Summary Judgment filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Responses due by 11/18/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 11/14/2016) (Entered: 11/14/2016)
142 ORDER by Judge Yvonne Gonzalez Rogers granting 141 Administrative Motion Extension of Time. (fs, COURT STAFF) (Filed on 11/15/2016) (Entered: 11/15/2016)
Set/Reset Deadlines as to Defendants file Motion for Summary Judgment by 11/22/16. Responses due by 12/13/2016. Replies due by 12/27/2016. (fs, COURT STAFF) (Filed on 11/15/2016) (Entered: 11/15/2016)
143 CLERK'S NOTICE CONTINUING THE NOVEMBER 22, 2016 MOTION HEARING TO JANUARY 17, 2017. The Motion set 11/22/2016, Dkt. no. 124 is CONTINUED to 1/17/2017 at 2:00pm for hearing along with Government's Motion for Summary Judgment to be set for hearing same date and time. See Minutes Dkt. No. 134.

11/22/2016 11/22/2016 11/23/2016

Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel.. (This is a text−only entry generated by the court. There is no document associated with this entry(fs, COURT STAFF) (Filed on 11/16/2016) (Entered: 11/16/2016)
144 NOTICE by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice of Lodging of Classified Declaration of Michael Steinbach for In Camera, Ex Parte Review (Soskin, Eric) (Filed on 11/22/2016) (Entered: 11/22/2016)
145 MOTION for Summary Judgment filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Motion Hearing set for 1/17/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 12/13/2016. Replies due by 12/27/2016. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Berman, Julia) (Filed on 11/22/2016) (Entered: 11/22/2016)
146

*******Filed in error. Document filed in wrong case

12/01/2016 12/08/2016

STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 11/23/2016) Modified on 11/23/2016 (cpS, COURT STAFF). (Entered: 11/23/2016)
147 ERRATA re 145 MOTION for Summary Judgment by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. (Attachments: # 1 Appendix 1)(Berman, Julia) (Filed on 12/1/2016) (Entered: 12/01/2016)
148 STIPULATION WITH PROPOSED ORDER To Extend Deadlines For Opposition To And Reply In Support Of Defendants' Motion For Summary Judgment filed by Twitter, Inc.. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 12/8/2016) (Entered: 12/08/2016)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 21 of 36

12/09/2016 12/09/2016
12/19/2016 12/19/2016 12/19/2016 12/22/2016
12/22/2016 12/28/2016 01/04/2017

149 ORDER by Judge Yvonne Gonzalez Rogers granting 148 Stipulation re Extension of Briefing Dates and Continuing Hearings. (fs, COURT STAFF) (Filed on 12/9/2016) (Entered: 12/09/2016)
Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel, 145 MOTION for Summary Judgment . Responses due by 12/19/2016. Replies due by 1/5/2017. Motion Hearing set for 1/24/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 12/9/2016) (Entered: 12/09/2016)
150 OPPOSITION/RESPONSE (re 145 MOTION for Summary Judgment ) filed byTwitter, Inc.. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 12/19/2016) (Entered: 12/19/2016)
151 Request for Judicial Notice re 150 Opposition/Response to Motion in Support of Opposition to Defendants' Motion for Summary Judgment filed byTwitter, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, Part 1, # 5 Exhibit D, Part 2, # 6 Exhibit D, Part 3, # 7 Exhibit D, Part 4, # 8 Exhibit E)(Related document(s) 150 ) (Rubin, Lee) (Filed on 12/19/2016) (Entered: 12/19/2016)
152 Declaration of Lee H. Rubin in Support of 150 Opposition/Response to Motion in Support of Opposition to Defendants' Motion for Summary Judgment filed byTwitter, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 150 ) (Rubin, Lee) (Filed on 12/19/2016) (Entered: 12/19/2016)
153 MOTION for Protective Order and [Proposed] Protective Order filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Motion Hearing set for 1/31/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 1/5/2017. Replies due by 1/12/2017. (Attachments: # 1 Proposed Order)(Soskin, Eric) (Filed on 12/22/2016) Modified on 12/23/2016 (cjlS, COURT STAFF). (Entered: 12/22/2016)
154 Declaration of Eric Soskin in Support re 153 MOTION for Protective Order filed byJames B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 153 ) (Soskin, Eric) (Filed on 12/22/2016) Modified on 12/23/2016 (cjlS, COURT STAFF). (Entered: 12/22/2016)
155 Notice of Withdrawal of Motion Re: ECF No. 153 (Motion for Protective Order) (Soskin, Eric) (Filed on 12/28/2016) (Entered: 12/28/2016)
156 CLERK'S NOTICE Continuing Time of Motion Hearing on Tuesday January 24, 2017 to 1:00 PM.

Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel, 145 MOTION for Summary Judgment. Motion Hearing set for 1/24/2017 will be held at 01:00 PM (instead of at 2:00 PM ) in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.

01/04/2017 01/05/2017

(This is a text−only entry generated by the court. There is no document associated with this entry(fs, COURT STAFF) (Filed on 1/4/2017) (Entered: 01/04/2017)
157 STIPULATION WITH PROPOSED ORDER to Extend Deadline for Reply in Support of Defendants Motion For Summary Judgment and to Continue the Hearing Currently Set for January 24, 2017, filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice, Twitter, Inc.. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 1/4/2017) Modified on 1/5/2017 (jlmS, COURT STAFF). (Entered: 01/04/2017)
158 ORDER by Judge Yvonne Gonzalez Rogers Granting 157 Stipulated Request to Extend Deadline for Reply and Continue Hearing. Reply due 1/10/17. Motion Hearing CONTINUED to 2/14/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.. (ygrlc1S, COURT STAFF) (Filed on 1/5/2017) (Entered: 01/05/2017)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 22 of 36

01/06/2017

159 CLERK'S NOTICE Continuing Motion Hearing on Motion for Order Directing Defendants to Initiate an Expedited Security Clearance Process to 2/14/2017. Set/Reset Deadlines as to 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel. Motion Hearing set for 2/14/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers; now set for same time and date as Motion for Summary Judgment 145 .

01/10/2017 01/10/2017
01/17/2017 02/13/2017 02/13/2017 02/13/2017 02/14/2017
02/17/2017 03/10/2017 03/20/2017 03/27/2017
04/10/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.)</I (fs, COURT STAFF) (Filed on 1/6/2017) (Entered: 01/06/2017)
160 REPLY (re 145 MOTION for Summary Judgment ) filed byJames B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. (Berman, Julia) (Filed on 1/10/2017) (Entered: 01/10/2017)
161 ADMINISTRATIVE MOTION Nunc Pro Tunc Administrative Motion to Extend Time for Defendants to Submit their Separate Statement of Undisputed Facts filed by James B. Comey, Federal Bureau of Investigation, Loretta Lynch, United States Department of Justice. Responses due by 1/17/2017. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Berman, Julia) (Filed on 1/10/2017) (Entered: 01/10/2017)
162 OPPOSITION/RESPONSE (re 161 ADMINISTRATIVE MOTION Nunc Pro Tunc Administrative Motion to Extend Time for Defendants to Submit their Separate Statement of Undisputed Facts ) filed byTwitter, Inc.. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 1/17/2017) (Entered: 01/17/2017)
163 ORDER by Judge Yvonne Gonzalez Rogers denying 161 Administrative Motion to Extend Time. (fs, COURT STAFF) (Filed on 2/13/2017) (Entered: 02/13/2017)
164 NOTICE by Twitter, Inc. of Recent Decision Pursuant to Local Rule 7.3(D)(2) (Rubin, Lee) (Filed on 2/13/2017) (Entered: 02/13/2017)
165 NOTICE by Twitter, Inc. of Status of Discovery Dispute; Declaration of Lee H. Rubin in Support (Rubin, Lee) (Filed on 2/13/2017) (Entered: 02/13/2017)
166 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 2/14/2017 re 124 MOTION For An Order Directing Defendants To Initiate An Expedited Security Clearance Process For Plaintiff's Counsel filed by Twitter, Inc., 145 MOTION for Summary Judgment filed by Loretta Lynch, James B. Comey, United States Department of Justice, Federal Bureau of Investigation. Total Time in Court 1:22. Court Reporter Name Raynee Mercado. (fs, COURT STAFF) (Date Filed: 2/14/2017) (Entered: 02/15/2017)
167 Joint Discovery Letter Brief filed by Twitter, Inc., Loretta Lynch, et al. (Rubin, Lee) (Filed on 2/17/2017) Modified on 2/21/2017 (cpS, COURT STAFF). (Entered: 02/17/2017)
168 Proposed Protective Order by Twitter, Inc., James B. Comey, et al. (Rubin, Lee) (Filed on 3/10/2017) Modified on 3/13/2017 (cpS, COURT STAFF). (Entered: 03/10/2017)
169 TRANSCRIPT ORDER for proceedings held on 2/14/17 before Hon. Yvonne Gonzalez Rogers by Twitter, Inc., for Court Reporter Raynee Mercado. (Rubin, Lee) (Filed on 3/20/2017) (Entered: 03/20/2017)
170 STIPULATED PROTECTIVE ORDER granting re 168 Proposed Order filed by James B. Comey, Twitter, Inc., United States Department of Justice, PROTECTIVE ORDER. Signed by Judge Yvonne Gonzalez Rogers on 3/27/17. (fs, COURT STAFF) (Filed on 3/27/2017) Modified on 3/28/2017 (cpS, COURT STAFF). (Entered: 03/27/2017)
171 Transcript of Proceedings held on February 14, 2017, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 23 of 36

07/06/2017 07/06/2017
08/07/2017 08/08/2017 08/14/2017 08/24/2017 08/24/2017 08/28/2017 09/05/2017 09/07/2017 09/07/2017 09/25/2017
09/26/2017

later than 5 business days from date of this filing. (Re 169 Transcript Order ) Release of Transcript Restriction set for 7/10/2017. (Related document(s) 169 ) (rhm) (Filed on 4/10/2017) (Entered: 04/10/2017)
172 ORDER by Judge Yvonne Gonzalez Rogers granting 124 Twitter's Motion for Order Directing Defendants to Expedite Security Clearance; denying without prejudice 145 Motion for Summary Judgment. (fs, COURT STAFF) (Filed on 7/6/2017) (Entered: 07/06/2017)
173 ORDER SETTING CASE MANAGEMENT CONFERENCE AND DISCOVERY STATUS CONFERENCE. Further Case Management Conference set for Monday, 8/14/2017 01:00 PM in Courtroom 1, 4th Floor, Oakland. Updated Case Management Statement and Joint Supplemental Statement re discovery dispute filed by 8/7/2017. Signed by Judge Yvonne Gonzalez Rogers on 7/6/2017. (fs, COURT STAFF) (Filed on 7/6/2017) (Entered: 07/06/2017)
174 UPDATED JOINT CASE MANAGEMENT STATEMENT and Statement Regarding Discovery Dispute filed by United States Department of Justice, Twitter Inc. (Soskin, Eric) (Filed on 8/7/2017) Modified on 8/8/2017 (cpS, COURT STAFF). (Entered: 08/07/2017)
175 NOTICE by United States Department of Justice of Filing of Declaration of Carl Ghattas (Attachments: # 1 Declaration of Carl Ghattas)(Soskin, Eric) (Filed on 8/8/2017) (Entered: 08/08/2017)
176 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Further Case Management Conference held on 8/14/2017. Discovery Hearing held on 8/14/2017.Total Time in Court 43 minutes. Court Reporter Name Raynee Mercado. (fs, COURT STAFF) (Date Filed: 8/14/2017) (Entered: 08/23/2017)
177 NOTICE of Change In Counsel by Eric Joseph Soskin (Soskin, Eric) (Filed on 8/24/2017) (Entered: 08/24/2017)
178 AMENDED Exhibit A to Joint Letter Brief Filed February 17, 2017 by Twitter, Inc.. . (Rubin, Lee) (Filed on 8/24/2017) Modified on 8/25/2017 (cpS, COURT STAFF). (Entered: 08/24/2017)
179 NOTICE by Federal Bureau of Investigation, Jefferson B. Sessions, III, United States Department of Justice Notice of Filing of Declaration of EAD Ghattas (Attachments: # 1 Declaration of EAD Ghattas)(Berman, Julia) (Filed on 8/28/2017) (Entered: 08/28/2017)
180 MOTION for Reconsideration re 172 Order on Motion for Miscellaneous Relief, Order on Motion for Summary Judgment filed by Federal Bureau of Investigation, Jefferson B. Sessions, III, United States Department of Justice. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 9/5/2017) (Entered: 09/05/2017)
***See dkt. # 176 . Set/Reset Deadlines as to 180 MOTION for Reconsideration. Responses due by 9/26/2017. Replies due by 10/10/2017. Motion Hearing set for 10/24/2017 02:00 PM before Hon. Yvonne Gonzalez Rogers. (cpS, COURT STAFF) (Filed on 9/7/2017) (Entered: 09/07/2017)
181 TRANSCRIPT ORDER for proceedings held on 8/14/17 before Hon. Yvonne Gonzalez Rogers by Twitter, Inc., for Court Reporter Raynee Mercado. (Rubin, Lee) (Filed on 9/7/2017) (Entered: 09/07/2017)
182 Transcript of Proceedings held on August 14, 2017, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 181 Transcript Order ) Release of Transcript Restriction set for 12/21/2017. (Related document(s) 181 ) (rhm) (Filed on 9/25/2017) (Entered: 09/25/2017)
183 OPPOSITION/RESPONSE (re 180 MOTION for Reconsideration re 172 Order on Motion for Miscellaneous Relief, Order on Motion for Summary Judgment ) filed

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 24 of 36

10/10/2017 10/19/2017 11/28/2017 02/06/2018 02/12/2018
02/12/2018 03/02/2018 03/06/2018 03/08/2018 03/26/2018
03/26/2018 04/02/2018 04/09/2018

byTwitter, Inc.. (Rubin, Lee) (Filed on 9/26/2017) (Entered: 09/26/2017)
184 REPLY (re 180 MOTION for Reconsideration re 172 Order on Motion for Miscellaneous Relief, Order on Motion for Summary Judgment ) filed byFederal Bureau of Investigation, Jefferson B. Sessions, III, United States Department of Justice. (Berman, Julia) (Filed on 10/10/2017) (Entered: 10/10/2017)
185 ORDER VACATING HEARING ON MOTION FOR RECONSIDERATION. Signed by Judge Yvonne Gonzalez Rogers on 10/19/2017. (fs, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
186 ORDER by Judge Yvonne Gonzalez Rogers denying 180 Motion for Reconsideration. (fs, COURT STAFF) (Filed on 11/28/2017) (Entered: 11/28/2017)
187 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Telephone Conference held on 2/6/2018.Total Time in Court: 7 minutes. Court Reporter: NOT REPORTED. (fs, COURT STAFF) (Date Filed: 2/6/2018) (Entered: 02/07/2018)
188 ORDER GRANTING IN PART AND DENYING IN PART TWITTER'S REQUEST TO COMPEL FURTHER RESPONSES TO DISCOVERY; SETTING FURTHER CASE MANAGEMENT CONFERENCE re 167 Joint Discovery Letter Brief filed by Loretta Lynch, Twitter, Inc., Federal Bureau of Investigation.. Signed by Judge Yvonne Gonzalez Rogers on 2/12/2018. (fs, COURT STAFF) (Filed on 2/12/2018) (Entered: 02/12/2018)
Set/Reset Hearing re 188 Order, Further Case Management Conference set for 4/9/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor. (fs, COURT STAFF) (Filed on 2/12/2018) (Entered: 02/12/2018)
189 ADMINISTRATIVE MOTION to Extend Time for Defendants to Respond to Plaintiffs First Set of Discovery Requests filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 3/6/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Berman, Julia) (Filed on 3/2/2018) (Entered: 03/02/2018)
190 OPPOSITION/RESPONSE (re 189 ADMINISTRATIVE MOTION to Extend Time for Defendants to Respond to Plaintiffs First Set of Discovery Requests ) filed byTwitter, Inc.. (Rubin, Lee) (Filed on 3/6/2018) (Entered: 03/06/2018)
191 Order by Judge Yvonne Gonzalez Rogers granting in part and denying in part 189 Administrative Motion to Extend Time for Response to Discovery Requests.(dtmS, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)
192 Administrative Motion to File Under Seal Portions of Defendants' Sample of Responsive Materials Submitted in Response to the Courts March 8, 2018 Order filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Attachments: # 1 Exhibit 1 (Declaration of Julia A. Berman), # 2 Proposed Order, # 3 Exhibit 2 (Redacted Version of Document Sought to Be Filed Under Seal), # 4 Exhibit 3 (Unredacted Version of the Document Sought to Be Filed Under Seal))(Berman, Julia) (Filed on 3/26/2018) Modified on 3/27/2018 (cpS, COURT STAFF). (Entered: 03/26/2018)
193 RESPONSE to re 191 Order by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 3/26/2018) Modified on 3/27/2018 (cpS, COURT STAFF). (Entered: 03/26/2018)
194 THIRD UPDATED CASE MANAGEMENT STATEMENT filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice, Twitter Inc. (Berman, Julia) (Filed on 4/2/2018) Modified on 4/3/2018 (cpS, COURT STAFF). (Entered: 04/02/2018)
196 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 4/9/2018. Case Management Statement due by 9/17/2018.Further Case Management Conference set for 9/24/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor. Compliance hearing set for 4/27/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 25 of 36

04/12/2018
04/13/2018 04/16/2018 04/18/2018 04/20/2018 04/20/2018 04/23/2018 04/24/2018

Yvonne Gonzalez Rogers. Report filed by 4/20/18. Total Time in Court: 53 minutes. Court Reporter: Raynee Mercado. (fs, COURT STAFF) (Date Filed: 4/9/2018) (Entered: 04/12/2018)
195 Administrative Motion to File Under Seal and Errata Addressing Defendants' March 26, 2018 Submission filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Attachments: # 1 Proposed Order, # 2 Exhibit 1, # 3 Corrected Exhibit 2, # 4 Corrected Exhibit 3)(Berman, Julia) (Filed on 4/12/2018) (Entered: 04/12/2018)
197 STIPULATION WITH PROPOSED ORDER Regarding Discovery filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice, Twitter Inc. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 4/13/2018) Modified on 4/16/2018 (cpS, COURT STAFF). (Entered: 04/13/2018)
198 TRANSCRIPT ORDER for proceedings held on 4−9−18 before Judge Yvonne Gonzalez Rogers by Twitter, Inc., for Court Reporter Raynee Mercado. (Rubin, Lee) (Filed on 4/16/2018) (Entered: 04/16/2018)
199 TRANSCRIPT ORDER for proceedings held on 04/09/2018 before Judge Yvonne Gonzalez Rogers by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice, for Court Reporter Raynee Mercado. (Berman, Julia) (Filed on 4/18/2018) (Entered: 04/18/2018)
200 ORDER by Judge Yvonne Gonzalez Rogers granting 197 Stipulation regarding Discovery. Further Case Management Conference is set 9/24/18 at 2:00pm. (fsS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
201 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 4/20/2018) (Entered: 04/20/2018)
202 ORDER by Judge Yvonne Gonzalez Rogers granting 192 Administrative Motion to File Under Seal; granting 195 Administrative Motion to File Under Seal. (fs, COURT STAFF) (Filed on 4/23/2018) (Entered: 04/23/2018)
203 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. The Compliance hearing set for 4/27/2018 is CONTINUED to Friday, 5/11/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers.

05/04/2018 05/08/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 4/24/2018) (Entered: 04/24/2018)
204 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 5/4/2018) (Entered: 05/04/2018)
205 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. The Compliance hearing set for 5/11/2018 is COTINUED to Friday, 5/25/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Updated Status Report filed by 5/18/18.

05/17/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/8/2018) (Entered: 05/08/2018)
206 Transcript of Proceedings held on April 9, 2018, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 199 Transcript Order, 198 Transcript Order ) Release of Transcript Restriction set for 7/30/2018. (Related document(s) 199 , 198 ) (rhm) (Filed on 5/17/2018) (Entered: 05/17/2018)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 26 of 36

05/18/2018 05/22/2018

207 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 5/18/2018) (Entered: 05/18/2018)
208 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING.The Friday, May 25, 2018 at 9:01 AM Compliance Hearing is CONTINUED to Friday, June 8, 2018 at 9:01 AM. Updated Status Report filed by 6/1/2018.

06/01/2018 06/05/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/22/2018) (Entered: 05/22/2018)
209 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 6/1/2018) (Entered: 06/01/2018)
210 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. The Friday, June 8, 2018 at 9:01 AM Compliance Hearing is CONTINUED to Friday, June 22, 2018 at 9:01 AM. Updated Status Report filed by 6/15/2018.

06/15/2018 06/18/2018 06/29/2018 07/02/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 6/5/2018) (Entered: 06/05/2018)
211 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Berman, Julia) (Filed on 6/15/2018) (Entered: 06/15/2018)
212 CLERK'S NOTICE. The Friday, June 22, 2018 compliance hearing is CONTINUED to Friday, July 6, 2018 at 9:01 am. Updated Status Report to be filed by 6/29/18. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 6/18/2018) (Entered: 06/18/2018)
213 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 6/29/2018) (Entered: 06/29/2018)
REMINDER: Counsel are instructed that all future filings shall bear the initials YGR immediately after the case number.

07/02/2018

In the future, please be sure that the case number is correctly reflected on your documents as 4:14−cv−04480−YGR. (cpS, COURT STAFF) (Filed on 7/2/2018) (Entered: 07/02/2018)
214 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. Status Report due by 7/13/2018. Compliance hearing set for 7/6/2018 is CONTINUED to Friday 7/20/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers.

07/13/2018 07/17/2018
07/27/2018 07/31/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 7/2/2018) (Entered: 07/02/2018)
215 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 7/13/2018) (Entered: 07/13/2018)
216 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. Status Report due by 7/27/2018. Compliance hearing set for 7/20/2018 is CONTINUED to Friday 8/3/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 7/17/2018) (Entered: 07/17/2018)
217 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 7/27/2018) (Entered: 07/27/2018)
218 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. Compliance hearing set for 8/3/2018 is CONTINUED to Friday 8/17/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Status Report due by 8/10/2018.

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 27 of 36

08/03/2018 08/06/2018 08/10/2018 08/13/2018 08/14/2018 08/24/2018 08/28/2018
09/07/2018 09/11/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 7/31/2018) (Entered: 07/31/2018)
219 Second ADMINISTRATIVE MOTION to Extend Time for Defendants to Respond to Plaintiff's First Set of Discovery Requests Unopposed filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 8/7/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Heiman, Julia) (Filed on 8/3/2018) (Entered: 08/03/2018)
220 Statement of Non−Opposition re 219 Second ADMINISTRATIVE MOTION to Extend Time for Defendants to Respond to Plaintiff's First Set of Discovery Requests Unopposed filed byTwitter, Inc.. (Related document(s) 219 ) (Rubin, Lee) (Filed on 8/6/2018) (Entered: 08/06/2018)
221 ORDER by Judge Yvonne Gonzalez Rogers granting 219 Administrative Motion to Extend Time for Defendants to Respond to Plainitff's First Set of Discovery Requests; and setting Compliance re Meet and Confer. Case Management Statement due by 10/29/2018. Case Management Conference set for 9/24/2018 is CONTINUED to Monday, 11/5/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor. (fs, COURT STAFF) (Filed on 8/10/2018) (Entered: 08/10/2018)
222 ADMINISTRATIVE MOTION to Extend Time, Nunc Pro Tunc, for Defendants to Submit their August 10, 2018 Status Report Unopposed filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 8/17/2018. (Attachments: # 1 Exhibit 1 (Status Report), # 2 Proposed Order)(Heiman, Julia) (Filed on 8/13/2018) (Entered: 08/13/2018)
223 ORDER by Judge Yvonne Gonzalez Rogers granting 222 Administrative Motion to Extend Time, Nunc Pro Tunc, for Defendants to Submit their August 10, 2018 Status Report. Compliance Hearing set for 8/31/2018 at 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Status Report due by 8/24/2018. (kcS, COURT STAFF) (Filed on 8/14/2018) (Entered: 08/14/2018)
224 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 8/24/2018) (Entered: 08/24/2018)
225 ORDER CONTINUING COMPLIANCE HEARING RE: RESPONSE TO DISCOVERY AND MEET AND CONFER ON PRIVILEGE ISSUES re 224 Status Report filed by United States Department of Justice, Jefferson Sessions, Federal Bureau of Investigation. Compliance hearing is set for Friday, 9/14/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Updated Status Report by defendants filed by 9/7/2018. Joint statement by parties on status of meet and confer efforts filed by 9/7/2018. Signed by Judge Yvonne Gonzalez Rogers on 8/28/2018. (fs, COURT STAFF) (Filed on 8/28/2018) (Entered: 08/28/2018)
226 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 9/7/2018) (Entered: 09/07/2018)
227 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. Compliance hearing set for 9/14/2018 is CONTINUED to Friday, 9/28/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint Statement filed by 9/21/2018.

09/20/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 9/11/2018) (Entered: 09/11/2018)
228 Third ADMINISTRATIVE MOTION to Extend Time for Defendants to Respond to Plaintiff's First Set of Discovery Requests filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 9/24/2018. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Heiman, Julia) (Filed on 9/20/2018) (Entered: 09/20/2018)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 28 of 36

09/21/2018 09/25/2018 09/26/2018
10/05/2018 10/05/2018 10/10/2018
10/10/2018

229 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 9/21/2018) (Entered: 09/21/2018)
230 Supplement to Defendants' September 21, 2018 Status Report by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 9/25/2018) Modified on 9/26/2018 (cpS, COURT STAFF). (Entered: 09/25/2018)
231 ORDER by Judge Yvonne Gonzalez Rogers granting 228 Administrative Motion to Extend Time; Continuing Compliance Hearing. Case Management Statement due by 11/19/2018. Further Case Management Conference set for Monday, 11/26/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor. Status Report re compliance hearing filed by 10/5/2018. Compliance hearing set for 9/28/2018 is CONTINUED to 10/12/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)
232 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 10/5/2018) (Entered: 10/05/2018)
233 Joint Stipulation Regarding Discovery filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice, Twitter, Inc. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 10/5/2018) Modified on 10/9/2018 (cjlS, COURT STAFF). (Entered: 10/05/2018)
234 ORDER CONTINUING COMPLIANCE HEARING RE: DISCOVERY PRODUCTION AND PRIVILEGE ISSUES re 232 Status Report filed by United States Department of Justice, Jefferson Sessions, Federal Bureau of Investigation. Compliance hearing set for 10/12/2018 is CONTINUED to Friday, 11/9/2018 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint Status report filed by 11/2/2018. Signed by Judge Yvonne Gonzalez Rogers on 10/10/18. (fs, COURT STAFF) (Filed on 10/10/2018) (Entered: 10/10/2018)
235 ORDER by Judge Yvonne Gonzalez Rogers granting 233 Stipulation regarding Discovery. Case Management Statement due by 11/19/2018. Case Management Conference set 11/26/2018 at 2:00pm.

10/19/2018 10/25/2018
10/30/2018 11/02/2018 11/06/2018
11/06/2018

*The Monday, 11/5/2018 Case Management Conference date is vacated.*(fs, COURT STAFF) (Filed on 10/10/2018) (Entered: 10/10/2018)
236 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 10/19/2018) (Entered: 10/19/2018)
237 ADMINISTRATIVE MOTION to Extend Time for DOJ to Complete Production of its Privilege Log for Materials from its Unclassified Systems filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 10/29/2018. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 10/25/2018) (Entered: 10/25/2018)
238 ORDER by Judge Yvonne Gonzalez Rogers granting 237 Administrative Motion to Extend Time. (fs, COURT STAFF) (Filed on 10/30/2018) (Entered: 10/30/2018)
239 STATUS REPORT by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. (Heiman, Julia) (Filed on 11/2/2018) (Entered: 11/02/2018)
240 ADMINISTRATIVE MOTION for an Extension of 1 Hour and 56 Minutes to Complete the Production of DOJs Privilege Log filed by Federal Bureau of Investigation, Jefferson Sessions, United States Department of Justice. Responses due by 11/13/2018. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 11/6/2018) (Entered: 11/06/2018)
241 CLERK'S NOTICE VACATING THE FRIDAY, NOVEMBER 9, 2018 AT 9:01 AM COMPLIANCE HEARING.

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 29 of 36

11/08/2018 11/16/2018 11/19/2018 11/26/2018 11/26/2018 11/26/2018
11/29/2018 11/30/2018 12/03/2018 12/05/2018 12/10/2018
12/10/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 11/6/2018) (Entered: 11/06/2018)
242 ORDER by Judge Yvonne Gonzalez Rogers granting 240 Administrative Motion for Extension Nun Pro Tunc. (fs, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/08/2018)
243 STATUS REPORT by Federal Bureau of Investigation, United States Department of Justice. (Heiman, Julia) (Filed on 11/16/2018) (Entered: 11/16/2018)
244 FOURTH UPDATED JOINT CASE MANAGEMENT STATEMENT filed by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker, Twitter. (Heiman, Julia) (Filed on 11/19/2018) Modified on 11/20/2018 (cpS, COURT STAFF). Modified on 11/20/2018 (cpS, COURT STAFF). (Entered: 11/19/2018)
246 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 11/26/2018. Request for affidavit filed by 12/5/18. Government response filed by 12/17/18.Total Time in Court: 37 minutes. Court Reporter: Ana Dub. (fs, COURT STAFF) (Date Filed: 11/26/2018) (Entered: 11/30/2018)
Set Deadlines/Hearings: Plaintiff Motion re bellweather documents concerning privileges filed by 12/21/2018. Responses due by 1/11/2019. Replies due by 1/22/2019. Motion Hearing set for 2/5/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 11/26/2018) (Entered: 11/30/2018)
247 CORRECTED Minute Entry : [corrected to reflect on the minute sheet that the date that the case management conference was held was Monday, 11/26/2018] for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 11/26/2018.Total Time in Court: 37 minutes. Court Reporter: Ana Dub. (fs, COURT STAFF) (Date Filed: 11/26/2018) (Entered: 11/30/2018)
245 TRANSCRIPT ORDER for proceedings held on 11/26/2018 before Judge Yvonne Gonzalez Rogers by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker, for Court Reporter Ana Dub. (Heiman, Julia) (Filed on 11/29/2018) (Entered: 11/29/2018)
248 STATUS REPORT by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker. (Heiman, Julia) (Filed on 11/30/2018) (Entered: 11/30/2018)
249 TRANSCRIPT ORDER for proceedings held on 11/26/2018 before Judge Yvonne Gonzalez Rogers . (Booth, Samantha) (Filed on 12/3/2018) Modified on 12/4/2018 (cpS, COURT STAFF). (Entered: 12/03/2018)
250 Twitter's Notice Of Request And Request That Its Counsel Receive Access to Classified Steinbach Declaration (Attachments: # 1 Declaration Of Lee Rubin In Support)(Rubin, Lee) (Filed on 12/5/2018) Modified on 12/6/2018 (cpS, COURT STAFF). (Entered: 12/05/2018)
251 Transcript of Proceedings held on 11−26−2018 before Judge Yvonne Gonzalez Rogers. Court Reporter Ana M. Dub, telephone number 415−290−1651; ana_dub@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 245 Transcript Order, ) Release of Transcript Restriction set for 3/11/2019. (Related documents(s) 245 ) (amdS, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
252 STIPULATION WITH PROPOSED ORDER to Set Discovery Schedule filed by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker, Twitter Inc. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 30 of 36

12/14/2018 12/14/2018 12/17/2018 12/17/2018
12/17/2018 12/21/2018 12/21/2018
12/26/2018 12/28/2018 01/02/2019 01/02/2019 01/15/2019

12/10/2018) Modified on 12/11/2018 (cpS, COURT STAFF). (Entered: 12/10/2018)
253 ORDER GRANTING STIPULATED REQUEST TO SET DISCOVERY SCHEDULE by Judge Yvonne Gonzalez Rogers granting 252 Stipulation. Defendants shall produce their remaining logs for classified documents by February 15, 2019.(napS, COURT STAFF) (Filed on 12/14/2018) (Entered: 12/14/2018)
254 STATUS REPORT by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker. (Heiman, Julia) (Filed on 12/14/2018) (Entered: 12/14/2018)
255 NOTICE of Appearance by Christopher Robert Healy on behalf of all Defendants (Healy, Christopher) (Filed on 12/17/2018) (Entered: 12/17/2018)
NOTICE to counsel Christopher Healy. Please update your personal profile on ECF as the court's record shows a different address from what is shown on the document Re: 255 Notice of Appearance filed by Loretta Lynch, James B. Comey, Matthew G. Whitaker, Eric H. Holder, Jr., United States Department of Justice, Jefferson Sessions, Federal Bureau of Investigation (cpS, COURT STAFF) (Filed on 12/17/2018) (Entered: 12/17/2018)
256 RESPONSE to the Courts November 26, 2018 Order by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker. (Heiman, Julia) (Filed on 12/17/2018) (Entered: 12/17/2018)
257 Administrative Motion to File Under Seal Exhibits F and G of the Rubin Declaration in Support of Twitter's Privilege Challenge Motion filed by Twitter, Inc.. (Attachments: # 1 Declaration of Lee H. Rubin in Support, # 2 Exhibit F (Lodged Under Seal), # 3 Exhibit G (Lodged Under Seal), # 4 Proposed Order)(Rubin, Lee) (Filed on 12/21/2018) (Entered: 12/21/2018)
258 MOTION Challenging Defendants' Privilege Designations filed by Twitter, Inc.. Motion Hearing set for 2/5/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 1/11/2019. Replies due by 1/22/2019. (Attachments: # 1 Memorandum of Points and Authorities in Support, # 2 Declaration of Lee H. Rubin in Support, # 3 Exhibit A to Rubin Declaration, # 4 Exhibit B to Rubin Declaration, # 5 Exhibit C to Rubin Declaration, # 6 Exhibit D to Rubin Declaration, # 7 Exhibit E to Rubin Declaration, # 8 Exhibit F to Rubin Declaration (Lodged Under Seal), # 9 Exhibit G to Rubin Declaration (Lodged Under Seal), # 10 Proposed Order)(Rubin, Lee) (Filed on 12/21/2018) (Entered: 12/21/2018)
259 Unopposed MOTION for a Stay in Light of Lapse of Appropriations filed by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker. Responses due by 1/9/2019. Replies due by 1/16/2019. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 12/26/2018) Modified on 12/27/2018 (cpS, COURT STAFF). (Entered: 12/26/2018)
260 STATUS REPORT by Federal Bureau of Investigation, United States Department of Justice, Matthew G. Whitaker. (Heiman, Julia) (Filed on 12/28/2018) (Entered: 12/28/2018)
261 ORDER TO SHOW CAUSE RE: DISCLOSURE OF DECLARATION SUBMITTED IN CAMERA Government Response due by 1/18/2019. Plaintiff opposition by 1/25/2019. Reply by 2/1/19. (See Dkt 250 .) Signed by Judge Yvonne Gonzalez Rogers on 1/2/2019. (ygrlc1S, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
262 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS UNOPPOSED MOTION FOR STAY IN LIGHT OF LAPSE OF APPROPRIATIONS 259 by Judge Yvonne Gonzalez Rogers (ygrlc1S, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
263 CLERK'S NOTICE VACATING THE TUESDAY, FEBRUARY 5, 2019 AT 2:00 PM MOTION HEARING, DKT. NO. 258.

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 1/15/2019) (Entered: 01/15/2019)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 31 of 36

01/18/2019 01/25/2019 01/28/2019 01/29/2019 02/01/2019 02/01/2019 02/07/2019
02/07/2019
02/12/2019 02/14/2019 02/15/2019 02/20/2019
02/21/2019
02/28/2019

264 RESPONSE TO ORDER TO SHOW CAUSE Re: Disclosure of Declaration Submitted In Camera by Federal Bureau of Investigation, United States Department of Justice, Mathew Whitaker (Attachments: # 1 Exhibit 1)(Heiman, Julia) (Filed on 1/18/2019) Modified on 1/20/2019 (cpS, COURT STAFF). (Entered: 01/18/2019)
265 OPPOSITION re 264 Response to Order to Show Cause, filed byTwitter, Inc.. (Related document(s) 264 ) (Rubin, Lee) (Filed on 1/25/2019) Modified on 1/28/2019 (cpS, COURT STAFF). (Entered: 01/25/2019)
266 NOTICE to the Court of Restoration of Appropriations by Federal Bureau of Investigation, United States Department of Justice, Mathew Whitaker (Heiman, Julia) (Filed on 1/28/2019) Modified on 1/29/2019 (cpS, COURT STAFF). (Entered: 01/28/2019)
267 ORDER VACATING STAY 262 , DIRECTING PARTIES TO MEET AND CONFER. Signed by Judge Yvonne Gonzalez Rogers on 1/29/2019. (ygrlc1, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
268 STIPULATION WITH PROPOSED ORDER Regarding Twitter's Pending Privilege Challenge Motion and Other Outstanding Deadlines filed by Twitter, Inc., Mathew Whitaker. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 2/1/2019) Modified on 2/4/2019 (cpS, COURT STAFF). (Entered: 02/01/2019)
269 Reply Submitted in Support of re 264 Response to Order to Show Cause filed byFederal Bureau of Investigation, United States Department of Justice, Mathew Whitaker. (Related document(s) 264 ) (Heiman, Julia) (Filed on 2/1/2019) Modified on 2/4/2019 (cpS, COURT STAFF). (Entered: 02/01/2019)
270 ORDER by Judge Yvonne Gonzalez Rogers granting 268 Stipulation Regarding Twitter's Pending Privilege Challenge Motion and other Outstanding Deadlines. Government's bi−weekly discovery Status Report filed by 2/15/2019. Government produce remaining logs on 3/22/2019. (fs, COURT STAFF) (Filed on 2/7/2019) (Entered: 02/07/2019)
Set/Reset Deadlines as to 258 MOTION Challenging Defendants' Privilege Designations : Responses due by 2/25/2019. Replies due by 3/14/2019. Motion Hearing set for 4/2/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 2/7/2019) (Entered: 02/07/2019)
271 STIPULATION WITH PROPOSED ORDER to Set a Schedule for Resolution of State Secrets Issue filed by Federal Bureau of Investigation, United States Department of Justice, Mathew Whitaker. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 2/12/2019) Modified on 2/13/2019 (cpS, COURT STAFF). (Entered: 02/12/2019)
272 ORDER by Judge Yvonne Gonzalez Rogers granting 271 Stipulation to set Schedule for Resolution of State Secrets Issue. (fs, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/14/2019)
273 STATUS REPORT by Federal Bureau of Investigation, United States Department of Justice. (Heiman, Julia) (Filed on 2/15/2019) (Entered: 02/15/2019)
274 Unopposed ADMINISTRATIVE MOTION for Extension of Time to File Opposition to re Motion Challenging Privilege Designation filed by William P. Barr, James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, Loretta Lynch, Jefferson Sessions, United States Department of Justice, Mathew Whitaker. Responses due by 2/25/2019. (Attachments: # 1 Proposed Order)(Healy, Christopher) (Filed on 2/20/2019) Modified on 2/21/2019 (cpS, COURT STAFF). (Entered: 02/20/2019)
275 ORDER by Judge Yvonne Gonzalez Rogers granting 274 Administrative Motion for Extension of Time for Briefing re: Challenge to Privilege Designation. Responses due by 3/1/2019. Replies due by 3/18/2019. The Hearing date shall remain set for 4/2/2019 at 2:00 PM. (fs, COURT STAFF) (Filed on 2/21/2019) (Entered: 02/21/2019)
276 NOTICE of Change In Counsel by Eric David Miller (Miller, Eric) (Filed on 2/28/2019) (Entered: 02/28/2019)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 32 of 36

03/01/2019 03/01/2019
03/05/2019 03/15/2019 03/15/2019
03/16/2019 03/18/2019 03/19/2019 03/20/2019 03/21/2019 03/29/2019 03/29/2019 03/29/2019

277 STATUS REPORT by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Heiman, Julia) (Filed on 3/1/2019) (Entered: 03/01/2019)
278 OPPOSITION/RESPONSE (re 258 MOTION Challenging Defendants' Privilege Designations ) filed byWilliam P. Barr, James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, Loretta Lynch, Jefferson Sessions, United States Department of Justice, Mathew Whitaker. (Attachments: # 1 Exhibit Declaration of Cecilia O. Bessee, # 2 Exhibit Declaration of Patrick Findlay, # 3 Exhibit Declaration of Julia A. Heiman)(Healy, Christopher) (Filed on 3/1/2019) (Entered: 03/01/2019)
279 ERRATA re 278 Opposition/Response to Motion, by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Appendix 1)(Heiman, Julia) (Filed on 3/5/2019) (Entered: 03/05/2019)
280 STATUS REPORT by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Heiman, Julia) (Filed on 3/15/2019) (Entered: 03/15/2019)
281 MOTION that the Court Discharge the Order to Show Cause and Deny Plaintiffs Request for Access to the Classified Steinbach Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney Generals Assertion of the State Secrets Privilege , MOTION to Dismiss filed by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. Responses due by 3/29/2019. Replies due by 4/5/2019. (Attachments: # 1 Exhibit A, Declaration of the Attorney General of the United States, # 2 Exhibit B, Declaration of the Acting Executive Assistant Director of the FBI, # 3 Proposed Order, # 4 Proposed Order Alternative Proposed Order)(Heiman, Julia) (Filed on 3/15/2019) (Entered: 03/15/2019)
282 NOTICE by William P. Barr, Federal Bureau of Investigation, United States Department of Justice Notice of Lodging of Classified Declaration of Michael C. McGarrity for Ex Parte, In Camera Review (Heiman, Julia) (Filed on 3/16/2019) (Entered: 03/16/2019)
283 REPLY (re 258 MOTION Challenging Defendants' Privilege Designations ) (In Support) filed byTwitter, Inc.. (Rubin, Lee) (Filed on 3/18/2019) (Entered: 03/18/2019)
284 STIPULATION WITH PROPOSED ORDER for Extension of Time to File Stipulation Regarding Further Proceedings Following Defendants' Assertion of State Secrets filed by Twitter, Inc., Federal Bureau of Investigations, William P. Barr and James B. Comey. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 3/19/2019) Modified on 3/20/2019 (jmlS, COURT STAFF). (Entered: 03/19/2019)
285 ORDER GRANTING STIPULATION; VACATING APRIL 2, 2019 HEARING by Judge Yvonne Gonzalez Rogers; granting 284 Stipulation. Motion Hearing currently set 258 for April 2, 2019 is VACATED. Parties Proposed Briefing Schedule filed by 3/21/2019. (fs, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
286 STIPULATION WITH PROPOSED ORDER Regarding Further Proceedings Following Defendants' Assertion of State Secrets (Joint) filed by Twitter, Inc., United States Department of Justice, James B. Comey, Federal Bureau of Investigation and William P. Barr . (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 3/21/2019) Modified on 3/22/2019 (jmlS, COURT STAFF). (Entered: 03/21/2019)
287 Letter from Lee H. Rubin to Hon. Yvonne Gonzalez Rogers pursuant to Federal Rule of Civil Procedures 56 and paragraph 9(a) of the Court's Standing Order. (Rubin, Lee) (Filed on 3/29/2019) (Entered: 03/29/2019)
288 ORDER RE JOINT STIPULATION REGARDING FURTHER PROCEEDINGS FOLLOWING DEFENDANTS' ASSERTION OF STATE SECRETS by Judge Yvonne Gonzalez Rogers granting 286 Stipulation. (fs, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
Set/Reset Deadlines as to 258 MOTION Challenging Defendants' Privilege Designations : Responses due by 4/29/2019. Replies due by 5/21/2019. Motion Hearing set for 6/4/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 33 of 36

03/29/2019 04/03/2019 04/05/2019 04/29/2019
04/30/2019
05/06/2019
05/08/2019 05/20/2019 05/22/2019 05/22/2019
05/23/2019

289 STATUS REPORT by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Heiman, Julia) (Filed on 3/29/2019) (Entered: 03/29/2019)
290 Letter from Defendants Responding to Plaintiff's Letter Requesting a Pre−filing Conference. (Heiman, Julia) (Filed on 4/3/2019) (Entered: 04/03/2019)
291 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Telephone Conference held on 4/5/2019.Total Time in Court: 25 minutes. Court Reporter: NOT REPORTED. (fs, COURT STAFF) (Date Filed: 4/5/2019) (Entered: 04/08/2019)
292 OPPOSITION/RESPONSE (re 281 MOTION that the Court Discharge the Order to Show Cause and Deny Plaintiffs Request for Access to the Classified Steinbach Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney Generals Assertion of the State Secrets Privileg MOTION to Dismiss ) filed byTwitter, Inc.. (Attachments: # 1 Declaration of Lee H. Rubin in Support of Twitter, Inc.'s Opposition to Defendants' Invocation of State Secrets and Motion to Dismiss, # 2 Declaration of Linda Isley in Support of Twitter, Inc.'s Opposition to Defendants' Invocation of State Secrets and Motion to Dismiss)(Rubin, Lee) (Filed on 4/29/2019) (Entered: 04/29/2019)
293 ERRATA re 281 MOTION that the Court Discharge the Order to Show Cause and Deny Plaintiffs Request for Access to the Classified Steinbach Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney Generals Assertion of the State Secrets Privileg MOTION to Dismiss by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Appendix 1)(Heiman, Julia) (Filed on 4/30/2019) (Entered: 04/30/2019)
294 Consent MOTION to File Amicus Curiae Brief in Support of Twitter, Inc.'s Opposition to Defendants' Invocation of State Secrets and Motion to Dismiss filed by American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern California, American Civil Liberties Union. Motion Hearing set for 6/4/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 5/20/2019. Replies due by 5/28/2019. (Attachments: # 1 Proposed Brief, # 2 Proposed Order)(Cagle, Matthew) (Filed on 5/6/2019) (Entered: 05/06/2019)
295 ORDER by Judge Yvonne Gonzalez Rogers GRANTING 294 Consent Motion to File Amicus Curiae Brief. (ygrlc1S, COURT STAFF) (Filed on 5/8/2019) (Entered: 05/08/2019)
296 Partially Unopposed ADMINISTRATIVE MOTION for a One−Day Extension of Time and for an Enlargement of the Page Limitation for Defendants Reply filed by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. Responses due by 5/24/2019. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 5/20/2019) Modified on 5/21/2019 (jmlS, COURT STAFF). (Entered: 05/20/2019)
297 ORDER by Judge Yvonne Gonzalez Rogers granting 296 Administrative Motion for One Day Extension of Time and for Enlargement of the Page Limitation. Reply due by 5/22/2019. (fs, COURT STAFF) (Filed on 5/22/2019) (Entered: 05/22/2019)
298 REPLY (re 281 MOTION that the Court Discharge the Order to Show Cause and Deny Plaintiffs Request for Access to the Classified Steinbach Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney Generals Assertion of the State Secrets Privileg MOTION to Dismiss ) filed byWilliam P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Exhibit 1)(Heiman, Julia) (Filed on 5/22/2019) (Entered: 05/22/2019)
299 CLERK'S NOTICE VACATING MOTION HEARING SET JUNE 4, 2019 AT 2:00 PM RE DKT. NO. 258

05/23/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/23/2019) (Entered: 05/23/2019)
300 CLERK'S NOTICE VACATING ALL MOTION HEARINGS SET ON TUESDAY, JUNE 4, 2019 AT 2:00 PM; VACATING HEARING ON MOTION AT DKT. NO. 258 AND VACATING HEARING ON MOTION AT DKT. NO. 281 . THE JUNE 4, 2019 HEARING DATE IS VACATED.

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 34 of 36

06/21/2019 07/10/2019 07/11/2019 07/29/2019 07/30/2019 08/23/2019 08/26/2019
08/27/2019 09/27/2019 09/27/2019 10/25/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/23/2019) (Entered: 05/23/2019)
301 ORDER TO SHOW CAUSE WHY THIS COURT SHOULD NOT RECONSIDER ITS ORDER DENYING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT. Show Cause Response due by 7/26/2019. Signed by Judge Yvonne Gonzalez Rogers on 6/21/2019. (fs, COURT STAFF) (Filed on 6/21/2019) (Entered: 06/21/2019)
302 STIPULATION WITH PROPOSED ORDER re 301 Order to Show Cause, Regarding Extension of July 26, 2019 Deadline filed by Twitter, Inc., United States Department of Justice, Federal Bureau of Investigation and William Barr. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 7/10/2019) Modified on 7/11/2019 (jmlS, COURT STAFF). (Entered: 07/10/2019)
303 ORDER by Judge Yvonne Gonzalez Rogers granting 302 Stipulation to Extend Deadline to Respond to the Court's Order to Show Cause to 8/9/2019. (fs, COURT STAFF) (Filed on 7/11/2019) (Entered: 07/11/2019)
304 STIPULATION WITH PROPOSED ORDER re 303 Order on Stipulation (Joint) filed by Twitter, Inc., United States Department of Justice, Federal Bureau of Investigation, William P. Barr and James B. Comey. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 7/29/2019) Modified on 7/29/2019 (jml, COURT STAFF). (Entered: 07/29/2019)
305 ORDER by Judge Yvonne Gonzalez Rogers granting 304 Stipulation to Extend the August 9, 2019 Deadline to Respond to the Court's Order to Show Cause. (fs, COURT STAFF) (Filed on 7/30/2019) (Entered: 07/30/2019)
306 JOINT RESPONSE re 301 Order to Show Cause; (Proposed) Order filed by William P. Barr, James B. Comey, Federal Bureau of Investigation, Eric H. Holder, Jr, Loretta Lynch, Jefferson Sessions, United States Department of Justice, Mathew Whitaker, Twitter Inc. (Healy, Christopher) (Filed on 8/23/2019) Modified on 8/25/2019 (cpS, COURT STAFF). (Entered: 08/23/2019)
307 ORDER SETTING RENEWED SUMMARY JUDGMENT BRIEIFING SCHEDULE; ADMINISTRATIVELY TERMINATING PENDING MOTIONS. Government's Motion for Summary Judgment filed by 9/27/2019. Plaintiff's Opposition and Cross Motion filed by 10/25/2019. Government's Reply in support of Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary Judgment filed by 11/22/2019. Plaintiff's Reply in support of Summary Judgment filed by 12/18/2019. Administratively terminating without prejudice Motions at Dkt. Nos. 250, 257 and 281. Signed by Judge Yvonne Gonzalez Rogers on 8/26/2019. (fs, COURT STAFF) (Filed on 8/26/2019) (Entered: 08/26/2019)
308 ORDER ADMINISTRATIVELY TERMINATING PENDING MOTION WITHOUT PREJUDICE re 258 MOTION Challenging Defendants' Privilege Designations filed by Twitter, Inc.. Signed by Judge Yvonne Gonzalez Rogers on 8/27/2019. (fs, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
309 MOTION for Summary Judgment filed by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. Responses due by 10/25/2019. Replies due by 11/22/2019. (Attachments: # 1 Exhibit 1, # 2 Separate Statement of Undisputed Facts, # 3 Proposed Order)(Heiman, Julia) (Filed on 9/27/2019) (Entered: 09/27/2019)
310 NOTICE of Lodging of Classified Declaration of Jay S. Tabb, Jr. for Ex Parte, In Camera Review by William P. Barr, Federal Bureau of Investigation, United States Department of Justice (Heiman, Julia) (Filed on 9/27/2019) Modified on 9/30/2019 (jmlS, COURT STAFF). (Entered: 09/27/2019)
311 Cross MOTION for Summary Judgment filed by Twitter, Inc.. Motion Hearing set for 1/7/2020 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 11/22/2019. Replies due by 12/18/2019. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 10/25/2019) (Entered: 10/25/2019)

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 35 of 36

10/25/2019 10/25/2019 10/25/2019 10/25/2019 10/25/2019 10/29/2019 10/29/2019

312 Declaration of Lee Rubin in Support of 311 Cross MOTION for Summary Judgment filed byTwitter, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6−10 Under Seal, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13)(Related document(s) 311 ) (Rubin, Lee) (Filed on 10/25/2019) (Entered: 10/25/2019)
313 TWITTERS SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF 311 ITS CROSS−MOTION FOR SUMMARY JUDGMENT by Twitter, Inc. (Rubin, Lee) (Filed on 10/25/2019) Modified on 10/28/2019 (cjlS, COURT STAFF). (Entered: 10/25/2019)
314 TWITTERS RESPONSIVE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO 309 DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Twitter, Inc. (Rubin, Lee) (Filed on 10/25/2019) Modified on 10/28/2019 (cjlS, COURT STAFF). (Entered: 10/25/2019)
315 Request for Judicial Notice re 311 Cross MOTION for Summary Judgment filed byTwitter, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Related document(s) 311 ) (Rubin, Lee) (Filed on 10/25/2019) (Entered: 10/25/2019)
316 Administrative Motion to File Under Seal Exhibits 6−10 of the Rubin Declaration in Support of Cross Motion for Summary Judgment filed by Twitter, Inc.. (Attachments: # 1 Declaration of Lee Rubin, # 2 Proposed Order, # 3 Unredacted Version of Exhibit 6, # 4 Unredacted Version of Exhibit 7, # 5 Unredacted Version of Exhibit 8, # 6 Unredacted Version of Exhibit 9, # 7 Unredacted Version of Exhibit 10)(Rubin, Lee) (Filed on 10/25/2019) (Entered: 10/25/2019)
317 Declaration of Julia A. Heiman in Support of 316 Administrative Motion to File Under Seal Exhibits 6−10 of the Rubin Declaration in Support of Cross Motion for Summary Judgment Submitted Pursuant to Local Rule 79−5(e) filed byWilliam P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Exhibit B (publicly releasable versions of Exhibits 6−10), # 2 Proposed Order)(Related document(s) 316 ) (Heiman, Julia) (Filed on 10/29/2019) (Entered: 10/29/2019)
318 ***NO TITLE PAGE. RE−FILED AT DOCKET # 319 ***

10/30/2019

EXHIBITS re 316 Administrative Motion to File Under Seal Exhibits 6−10 of the Rubin Declaration in Support of Cross Motion for Summary Judgment Exhibit A to Declaration of Julia A. Heiman − Unredacted Versions Highlighting Narrowed Proposed Redacted Material (Filed Under Seal) filed byWilliam P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Related document(s) 316 ) (Heiman, Julia) (Filed on 10/29/2019) Modified on 10/30/2019 (cpS, COURT STAFF). Modified on 10/31/2019 (cpS, COURT STAFF). (Entered: 10/29/2019)
Electronic filing error. Exhibits e−filed separately and not as an attachment, require a title page. Please refer to Civil Local Rules 3−4(a)(1) re first page requirement.

Pl ease re−file in its entirety Re: 318 Exhibits to an Administrative Motion to File Under Seal, filed by United States Department of Justice, Federal Bureau of Investigation, William P. Barr

10/30/2019 11/01/2019

(cpS, COURT STAFF) (Filed on 10/30/2019) (Entered: 10/30/2019)
319 EXHIBITS 9 & 10 (Unredacted Versions Highlighting Narrowed Proposed Redacted Material (Filed Under Seal)) re 316 Administrative Motion to File Under Seal Exhibits 6−10 of the Rubin Declaration in Support of Cross Motion for Summary Judgment filed byWilliam P. Barr, Federal Bureau of Investigation, United States Department of Justice. (Related document(s) 316 ) (Heiman, Julia) (Filed on 10/30/2019) Modified on 10/31/2019 (cpS, COURT STAFF). (Entered: 10/30/2019)
320 CLERK'S NOTICE VACATING MOTION HEARING DATE RE DKT. NO. 311.The Court will set a hearing date on the Cross−Motions for Summary Judgment after briefing is completed.

(This is a text−only entry generated by the court. There is no ocument associated with

Case: 4:14-cv-4480 As of: 06/01/2020 07:15 PM PDT 36 of 36

11/22/2019
11/22/2019 11/24/2019
12/03/2019 12/05/2019 12/18/2019 12/18/2019
04/17/2020 04/17/2020 04/17/2020

this entry.) (fs, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)
321 OPPOSITION/RESPONSE (re 311 Cross MOTION for Summary Judgment ) and Reply in Support of Defendants' Renewed Motion for Summary Judgment filed byUnited States Department of Justice. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 11/22/2019) Modified on 11/24/2019 (cpS, COURT STAFF). (Entered: 11/22/2019)
322 RESPONSE re 313 Separate Statement of Undisputed Facts by United States Department of Justice. (Heiman, Julia) (Filed on 11/22/2019) Modified on 11/24/2019 (cpS, COURT STAFF). (Entered: 11/22/2019)
323 ERRATA re 321 Opposition/Response to Motion, by United States Department of Justice. (Attachments: # 1 Corrected − Defendants' Opposition to Plaintiff's Cross−Motion for Summary Judgment and Reply in Support of Defendants' Renewed Motion for Summary Judgment)(Heiman, Julia) (Filed on 11/24/2019) (Entered: 11/24/2019)
324 JOINT STIPULATION WITH PROPOSED ORDER to Exceed Page Limitations For Briefing in Support of Cross−Motions for Summary Judgment filed by Twitter, Inc., William Barr, et al. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 12/3/2019) Modified on 12/4/2019 (cpS, COURT STAFF). (Entered: 12/03/2019)
325 ORDER by Judge Yvonne Gonzalez Rogers granting 324 Stipulation Regarding Exceeding Page Limitations for Briefing. (fs, COURT STAFF) (Filed on 12/5/2019) (Entered: 12/05/2019)
326 REPLY (re 311 Cross MOTION for Summary Judgment ) Twitter's Reply in Support of (1) its Cross−Motion for Summary Judgment & (2) its Renewed Motion for Access to Classified Materials filed byTwitter, Inc.. (Rubin, Lee) (Filed on 12/18/2019) (Entered: 12/18/2019)
327 Supplemental Request for Judicial Notice in Support of its Cross−Motion for Summary Judgment 311 & Reply in Support Thereof re 326 filed byTwitter, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 326 , 311 ) (Rubin, Lee) (Filed on 12/18/2019) Modified on 12/19/2019 (cpS, COURT STAFF). (Entered: 12/18/2019)
328 ORDER by Judge Yvonne Gonzalez Rogers granting 309 Government's Motion for Summary Judgment; denying 311 Twitter's Cross−Motion for Summary Judgment. (fs, COURT STAFF) (Filed on 4/17/2020) (Entered: 04/17/2020)
329 ORDER by Judge Yvonne Gonzalez Rogers granting 316 Administrative Motion to File Under Seal. (fs, COURT STAFF) (Filed on 4/17/2020) (Entered: 04/17/2020)
330 JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 4/17/2020. (fs, COURT STAFF) (Filed on 4/17/2020) (Entered: 04/17/2020)