A federal district judge in California denied the Obama administration’s request to move Twitter’s legal challenge of a gag order on surveillance programs to a secretive court that oversees them.
Judge Yvonne Gonzalez Rodriguez said Monday that the Foreign Intelligence Surveillance Court (FISC) was not the proper venue for the case. The body approves of wiretap and business records requests made by federal agents under the Foreign Intelligence Surveillance Act (FISA).
Surveillance reform passed by Congress last year shed some light on FISC proceedings, after NSA whistleblower Edward Snowden divulged information about them in 2013. The USA Freedom Act made the government declassify some FISC opinions, while allowing communications firms, like Twitter, to report some information about the volume of FISA orders they receive.
Twitter, however, wants to publish the exact number of times it has been compelled to reveal information under FISA and through National Security Letters.
“The Government does not identify any order of the FISC addressing, as a general matter, publication of aggregate data about receipt of legal process, the crux of the matter before the Court here,” Rodriguez stated.
Administration lawyers had argued that “the nondisclosure obligations incurred by recipients of FISA process are imposed through orders of the FISC,” and that the body should therefore oversee the case.
Although Rodriguez partially dismissed Twitter’s challenge, which hinged on alleged First Amendment violations, she gave the company until May 24 to revise its complaint.
Rodriguez ruled that because the information Twitter wants to disclose is classified, the company is unable to claim that its free speech has been violated. She concurrently found, however, that the social media giant can challenge the very classification of the information at the heart of the case.
“We will continue to evaluate today’s order, but we welcome the decision not to transfer our transparency case to the FISA Court,” Twitter spokesman Nu Wexler said. The company filed its suit in 2014.
Despite changes to FISC rules passed under the USA Freedom Act, it still “largely kept secret due to the sensitive nature of the proceedings,” according to civil liberties advocates EPIC. The non-profit notes “the court’s ex parte process is primarily non-adversarial,” giving it only the veneer of a proper legal body that allows challenges to its orders.
