Twitter, free speech and warrant canaries

On October 7, Twitter, which is called by some the champion of free speech among social networks, filed a lawsuit against the U.S. Department of Justice (DOJ), and the FBI. Reuters reports, “In the lawsuit… Twitter said that current rules prevent it from even stating that it has not received any national security requests for user information.”

A blog post from Twitter stated, “It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.”

The “broad, inexact ranges” mention by Twitter is a reference to an “agreement between Internet companies like Google and Microsoft with the government about court orders they receive related to surveillance,” according to Reuters. For example, a tech company that received 456 FISA orders and/or national security letters, would be able to say it received between zero and 999 orders.

Twitter added that the company tried, but was not able, to achieve a level of transparency without litigation. The company provided a draft Transparency Report addendum to the DOJ and the FBI in April. The lawsuit states, the FBI and DOJ “informed Twitter on September 9, 2014 that ‘information contained in the [transparency] report is classified and cannot be publicly released’ because it does not comply with their framework for reporting data about government requests under the Foreign Intelligence Surveillance Act and the National Security Letter statutes.”

The lawsuit adds, “[t]he Defendants’ position forces Twitter either to engage in speech that has been
preapproved by government officials or else to refrain from speaking altogether.”

This raises two major questions:
1) can the federal government, or an agency thereof, rightly compel speech?
2) can the federal government, or an agency thereof, rightly compel untrue speech?

I say, no and no! However, it seems the legality of these questions will be decided by a federal court. Twitter’s claim is that the “U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request.”

In other words, Twitter is filing a lawsuit over the legality of warrant canaries. The Electronic Frontier Foundation defines a warrant canary as “a colloquial term for a regularly published statement that a service provider has not received legal process that it would be prohibited from saying it had received. Once a service provider does receive legal process, the speech prohibition goes into place, and the canary statement is removed.”

Last month it was reported that Apple’s warrant canary was missing from the company’s transparency report covering Jan 1-Jun 30, 2014. Apple, and other companies, began using warrant canaries last year after spying revelations made by Edward Snowden. It’s not just tech companies that need to worry about receiving National Security Letters and FISA orders; these have been served on librarians and journalists alike. I encourage everyone to come up with at least one warrant canary. I have one for each of my podcasts, my website, and my newspaper.

Warrant canaries: if the following go away/happen, the warrant canary is dead.
FPPradioNews: the commodity prices given at the beginning of the newscast.
FPP Freedom Minute: if the Freedom Minute stops being exactly 5 minutes long.
Peace, Love, Liberty Radio: if there is an “interruption” of the show by the “New World Order” theme song. if the website background becomes black. if the website slogan “…ensuring a FREE PRESS for the FREEDOM MOVEMENT” goes away.
FPPNews: if the paper stops being published under a copyheart.