Twitter Says Government Request Info Not Properly Classified

The Internet Law Resource Center™ is the complete information solution for practitioners in cyberlaw. Follow the latest developments on ICANN’s gTLD program, keyword advertising, online privacy,...

By Alexis Kramer

May 25 — Information in a Twitter Inc. transparency report on the U.S. government's requests for user data wasn't properly classified and is protected by the First Amendment, the social network alleged in a second amended complaint filed in the U.S. District Court for the Northern District of California ( Twitter v. Lynch , N.D. Cal., No. 4:14-cv-04480, second amended complaint filed 5/24/16 ).

The Federal Bureau of Investigation failed to show that disclosing the amount of national security requests Twitter received poses a threat to U.S. national security, Twitter alleged.

“The ability of Twitter users to share information depends, in part, on their ability to do so without undue fear of government surveillance,” Twitter said. “Therefore, the ability to engage in speech concerning the nature and extent of government surveillance of Twitter users' activities is critical to Twitter.”

Information Restricted

Twitter sought to publish a transparency report containing the number of national security letters it received from the Federal Bureau of Investigation. The social network said it was informed by the FBI that the information in the report can't be published because it's classified and doesn't comply with the government's framework for reporting data on U.S. national security requests.

Twitter challenged the government's restriction as an unconstitutional prior restraint on free speech (19 ECLR 1323, 10/15/14).

The court rejected the government's bid to dismiss the suit, but said that Twitter would have to amend its claims that it had a right under the First Amendment to disclose the information (21 ECLR 671, 5/4/16). The First Amendment doesn't allow disclosure of classified national security information, the court said.

Classified Information?

Twitter alleged that the FBI didn't properly classify the information because it failed to disclose the basis for its determination, identify the authority who made the determination or establish the date until which the information can't be disclosed.

Executive Order No. 13526 provides that information may be originally classified if:

  •  an original classification authority made the determination;
  •  the government produced, owns or controls the information;
  •  the information falls within one of eight listed categories; and
  •  the official determines that unauthorized disclosure could reasonably be expected to damage national security.
Under the order, the classification authority must identify or describe the threatened damage and establish a date for declassification.


The requirements set out in the executive order are the only grounds on which the government may rely to ban disclosure of the information in the transparency report, Twitter said. But the FBI had failed to meet those requirements, it said.

Twitter also alleged that the FBI refused its request to identify the specific information in the report that couldn't be published.

The FBI didn't narrowly prohibit only the speech that would harm national security, but “instead prohibited all of the speech in Twitter's draft Transparency Report and thereby prohibited speech that would not properly be subject to classification, in violation of the First Amendment,” Twitter said.

Perkins Coie LLP represented Twitter.

To contact the reporter on this story: Alexis Kramer in Washington at

To contact the editor responsible for this story: Joseph Wright at