[Note: This case was previously known as Twitter v. Holder, then Twitter v. Lynch, then Twitter v. Sessions]

On October 7, 2014, Twitter -- an online social networking service -- filed a lawsuit in the U.S. District Court for the Northern District of California against the U.S. Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) under the Administrative Procedure Act. Twitter, represented by private counsel, asked the court for declaratory judgment and injunctive relief, alleging that nondisclosure provisions set forth in a letter from the Deputy Attorney General ("the DAG Letter") and the Foreign Intelligence Surveillance Act (FISA) secrecy provisions were unconstitutional under the First Amendment. Twitter also contended that the review mechanisms for seeking to modify the nondisclosure provisions violate the separation of power principles.

Twitter specifically contested the FBI's practice of occasionally issuing National Security Letters ("NSLs") to communication providers, compelling them to disclose information deemed relevant for protecting against terrorism. The FBI also issues FISA orders that permit surveillance or disclosure of stored records. Recipients of a NSL or a FISA order are restricted from disclosing information from that order.

In 2013, in response to these restrictions, five communication providers (including Google and Facebook) filed a lawsuit to relax restrictions for publishing information such as the total number of requests and user accounts encompassed by such requests. In January 2014, the DOJ and the five providers settled. Two pre-approved disclosure formats were set forth in the DAG Letter, which was dated January 27, 2014.

Twitter, the plaintiff in this case, had a practice of releasing transparency reports that listed the number of requests from the government for account information and content removal, and how Twitter responded to such requests. At the time of the complaint, the reports did not contain information regarding NSL and FISA orders. On January 29, 2014, the plaintiff met with the defendants and sought confirmation that the DAG Letter (of January 27, 2014) did not apply to the plaintiff. Subsequently, the plaintiff submitted a draft report to the FBI seeking prepublication review; the draft included numeric information of NSL and FISA orders received. The FBI denied prepublication on a basis that the contained information exceeded the scope set forth in the DAG Letter. This first amendment complaint ensued.

On October 17, 2014, the government declined to proceed before a magistrate judge, and the case was subsequently reassigned to District Court Judge Yvonne Gonzalez Rogers on October 20, 2014.

On January 9, 2015, the government filed a partial motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The government argued that: 1. The court lacked subject matter jurisdiction because the plaintiffs failed to establish an injury-in-fact and therefore lacked standing, and because the DAG Letter did not constitute a final agency act under the Administrative Procedure Act; 2. FISA challenges should instead have been considered by the Foreign Intelligence Surveillance Court; and 3. The Plaintiff's separation of powers challenge to the disclosure review mechanisms failed as a matter of law because deference to the Executive was entirely appropriate in this context.

In February 2015, a number of popular digital media organizations filed amici briefs on behalf of Twitter, including Buzzfeed, National Public Radio, and Reddit.

A hearing was held on the government’s motion to dismiss on May 5, 2015, but before Judge Rogers could rule, the defendants notified her in June 2015 of the passage of the USA Freedom Act. The USA Freedom Act reauthorized portions of the USA Patriot Act, but eliminated the Patriot Act’s bulk data collection provisions. Notably for this case, the Act added options for those who had been subject to NSL or FISA orders to publicly report information about orders received, and amended the judicial review process for NSL nondisclosure requirements.

Judge Rogers subsequently called for briefings on the impact of the Act on the pending partial motion for summary judgment and on the case as a whole. The plaintiff argued that the legislative changes did not affect the defendant's pending partial motion to dismiss, should not affect Twitter’s APA or First Amendment claims, and changed, but did not moot, its First Amendment and separation of powers claim. The government argued that passage of the Act made the plaintiff's Administrative Procedure Act and First Amendment challenges moot, and that the Act reinforced the constitutionality of the NSL statutes.

On October 14, 2015, after receiving all supplemental briefs, the Judge Rogers dismissed the government’s motion to dismiss as moot and ordered Twitter to file an amended complaint in light of the changes under the USA Freedom Act. 139 F.Supp.3d 1075. Twitter filed its amended complaint on November 13, 2015. In light of the new legislation, Twitter sought declaratory judgment and a permanent injunction, arguing that the non-disclosure provisions of FISA were unconstitutional on their face, that the government’s actions showed a pattern of “informal, overly expansive, delayed and conflicting” actions that had a chilling effect on speech and limited Twitter’s first amendment rights. It also argued that the Espionage Act was unconstitutional as applied to Twitter, and sought declaratory relief to that effect, expressing its concern that Twitter would be prosecuted under the Espionage Act should it choose to publish its Transparency Report.

The government filed a motion to dismiss the amended complaint on January 15, 2016. It argued that the court should dismiss the FISA claims in the interest of comity, that Twitter failed to establish standing with respect to its Espionage Act claims, and that all of Twitter’s claims should fail as a matter of law since the government may lawfully restrict disclosure of classified information.

On May 2, 2016, Judge Rogers granted the motion in part and denied it in part. Judge Rogers denied the motion to dismiss on the grounds of comity and concluded that Twitter had standing under the Espionage Act, but had not sufficiently pleaded its First Amendment claims. 183 F.Supp.3d 1007. Three weeks later, Twitter filed a second amended complaint. In it, Twitter alleged an implied cause of action under the First Amendment and a cause of action under the Administrative Procedure Act. Twitter claimed that the information it sought to disclose was improperly classified, and that the government failed to specify which specific information in its report could not be published.

On November 22, 2016, the defendants filed a motion for summary judgment. It was denied without prejudice on July 6, 2017. The government filed a motion to reconsider on September 5, 2017, which Judge Rogers denied on November 28, 2017.

After a lengthy discovery process, the Court published an order on June 21, 2019 suggesting that they would reconsider defendants' motion for summary judgment based on new information provided in the classified declaration of Michael McGarrity, Acting Executive Assistant Director of the National Security Branch of the Federal Bureau of Investigation. This evidence supported the government's assertion of a state secrets privilege, showing with specificity the imminent harm to national security that disclosure of this information would constitute.

On September 27, 2019, the government filed a renewed motion for Summary Judgment. On October 25, 2019, plaintiffs filed a cross-motion for Summary Judgment, contending that the government's evidence was purely speculative and hypothetical and that they failed to meet their burden to justify classification of the information in Twitter's transparency report.

In April 2020, Judge Rogers granted summary judgment to the government and denied summary judgment to the plaintiff. The Court ruled that, while strict scrutiny applied, the government sufficiently showed that the national security concerns outweighed Twitter's interest in disclosure. 2020 WL 1904597. No appeal has yet been filed.

David Cho - 10/26/2014
Alexandra Gilewicz - 02/12/2018
Dan Toubman - 03/28/2020
Jack Hibbard - 05/27/2020


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