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Twitter, Inc. v. Sessions

United States District Court, N.D. California

July 6, 2017

Twitter, Inc., Plaintiff,
Jefferson B. Sessions, III, ET AL., Defendants.



         Defendants Jefferson B. Sessions, III, [1] the United States Department of Justice, and the Federal Bureau of Investigation (“the Government”) filed a motion for summary judgment on the claims in Plaintiff Twitter, Inc.'s second amended complaint. (Dkt. No. 145.) Twitter filed a motion for an order directing the Government to expedite a security clearance process for lead counsel in this matter to review materials relevant to this litigation. (Dkt. No. 124.)

         Having carefully considered the papers submitted, the admissible evidence[2], and the pleadings in this action, and for the reasons set forth below, the Court Denies the motion for summary judgment Without Prejudice. The Court finds the Government has not met its high burden to overcome the strong presumption of unconstitutionality on the record before the Court. The Government's restrictions on Twitter's speech are content-based prior restraints subject to the highest level of scrutiny under the First Amendment. The 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 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 received in a time period would impair national security interests and is properly classified. However, the Government has not presented evidence, beyond a generalized explanation, to demonstrate that disclosure of the information in the Draft Transparency Report would present such a grave and serious threat of damage to national security as to meet the applicable strict scrutiny standard.

         The Court Grants the motion for an order directing the Government to expedite the appropriate national security clearances for lead counsel, Andrew J. Pincus and Lee H. Rubin.

         I. Background

         The procedural history of this case is lengthy and is detailed in the Court's prior orders. (See October 14, 2015 Order Denying Motion To Dismiss As Moot (Dkt. No. 85); May 2, 2016 Order Granting In Part and Denying In Part Motion to Dismiss Amended Complaint (Dkt. No. 113).) The Court offers an abbreviated summary of the history relevant here.

         On April 1, 2014, Twitter submitted to the Government a draft transparency report containing information and discussion about the aggregate numbers of national security letters (“NSLs”) and court orders pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), if any, it received in the second half of 2013. Twitter requested “a determination as to exactly which, if any, parts of its Transparency Report are classified or, in the [government's] view, may not lawfully be published online.” (Second Amended Complaint, Dkt. No. 114, ¶ 55.) Several months later, the Government notified Twitter that “information contained in the report is classified and cannot be publicly released, ” because it did not comply with the government's approved framework for reporting data about FISA orders and NSLs, as set forth in a letter from then-Deputy Attorney General James M. Cole (“the DAG Letter”). (Id. ¶¶ 49, 57.) The framework set forth in the DAG Letter was abrogated subsequently by the USA FREEDOM Act, which codified and broadened the scope of the reporting bands. However, the essentials of the dispute continue unchanged.

         II. Summary Judgment Standards

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Any party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for the finder of fact to return a verdict for the nonmoving party. Id.

         If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. 242, 250; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also Fed. R. Civ. P. 56(c), (e). A court may only consider admissible evidence in ruling on a motion for summary judgment. See Fed.R.Civ.P. 56(c)(2); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988) (“It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.”). However, when deciding a summary judgment motion, “the court does not make credibility determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir.2011).

         Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). The non-moving party should set forth the particular facts it expects to obtain and why it cannot provide those facts at the time for opposition. See Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 524 (9th Cir. 1989) (citing former Rule 56(f)).

         III. Discussion

         A. Overview of Issues

         The Government moves for summary judgment on the grounds that the information Twitter seeks to publish in its Draft Transparency Report is all properly classified information that would harm national security if disclosed, and therefore the First Amendment does not prohibit the Government's restrictions on Twitter's publication of the Draft Transparency Report. Twitter contends that the Government's restrictions violate the First Amendment both as prior restraints on speech and content-based limitations. Twitter asserts that more granular data on the volume of process cannot be considered properly classified information under Executive Order 13526, since the Government offers no specific evidence to demonstrate that the disclosure of this information would pose a threat to national security, let alone one that is serious or exceptionally grave. Twitter further argues that the motion is not ripe for consideration because it is entitled to complete discovery pursuant to Rule 56(d) before the Court makes a determination on summary judgment.

         As the moving party, the burden is on the Government to show that Twitter's constitutional challenges have no merit. The Government's basis for prohibiting disclosure relies on three interrelated arguments: (1) the aggregate data is classified under Executive Order 13526; (2) the USA FREEDOM Act, at 50 U.S.C. section 1874, limits disclosure of aggregate data about the volume national security process to reporting within certain numerical bands; and (3) the underlying FISA statutes permit the FBI to restrict disclosure about the existence of FISA process. While the Government relies primarily on the first argument here, it intertwines the statutory bases as further support for its classification decision.

         The Government submits an unclassified declaration of Michael B. Steinbach, Executive Assistant Director of the National Security Branch of the Federal Bureau of Investigation. (Dkt. No. 147-1, Steinbach Decl.)[3] Steinbach attests that “[d]isclosure of the more detailed and disaggregated information at issue in Twitter's report reasonably could be expected to result in damage to the national security, and it pertains to intelligence activities [section l.4(c)]; foreign relations or foreign activities of the United States [section l.4(d)]; and vulnerabilities or capabilities of systems, installations, infrastructures, project, plans, or protection services relating to the national security [ section 1.4(g)].” (Steinbach Decl. at ¶ 29). Steinbach concludes that the information “Twitter seeks to publish-data reflecting its receipt of national security process with a level of specificity that is far more granular than has been declassified by the DNI and allowed by the USA Freedom Act-was properly classified at the time that Twitter's draft transparency report was received by the FBI in 2014 and continues to be properly classified at this time.” (Id.) The Government contends that Steinbach's declarations specifically address the proposed disclosure that Twitter seeks to make, rather than simply addressing the classification of all materials generally under the bands prescribed in the USA FREEDOM Act. The Government urges that Steinbach's determination should be given the “utmost deference” by this Court, given his expertise in national security matters.

         In opposition, Twitter argues that the Government's restrictions on its ability to report more granular data regarding national security legal process requests it receives hinder its ability communicate truthful information to users of the online information platform, and potentially chill those users' speech. Twitter seeks “to dispel . . . users' [well-documented] fears” about the privacy of the information they share with Twitter by providing more precise (but aggregate) data about “the limited scope of U.S. surveillance on its platform.” (Notice Regarding Classified Document, Dkt. No. 21-1, Exh. 1 Unclassified, Redacted Version of Twitter's Draft Transparency Report [“Draft Transparency Report”] at 2.) The Government's restrictions not only prevent Twitter from conveying this message, but also compel Twitter “to mislead [its] users by reporting overly broad ranges of requests.” Id. Because social media users express concerns about government surveillance, Twitter's inability to report more detailed information about government legal process seeking information about Twitter's users could have a chilling effect on users' speech. More broadly, Twitter argues that restricting information about the scope of a government surveillance program will prevent the public from being able to scrutinize the program or hold government officials accountable for their conduct.

         Whether the restriction here on Twitter's speech is viewed as a product of the FBI's classification decision, the underlying FISA statutes permitting the FBI to restrict disclosure about the existence of FISA process, or the FISA public disclosure statute, 50 U.S.C. section 1874, the fact remains that the Government has limited Twitter's ability to speak on the subject of the number of orders it may have received. For the reasons set forth below, the Court finds that such limitations are subject to strict scrutiny under the First Amendment.

         B. First Amendment Framework

         “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 [Pentagon Papers] (1964)). “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010). “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983).

         At the same time, First Amendment rights are not absolute and do not automatically override all other constitutional values. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 570 (1976) (“We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact.”). Government limitations on speech are subject to varying levels of scrutiny depending upon such factors as substance of the speech and limitations involved. Strict scrutiny is reserved for speech implicating core concerns of the First Amendment. Republican ...

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