Bizarre Legal Claim In Twitter vs US Govt Lawsuit

[Steve_MB]

The basic situation: Twitter is suing the US Government to stop the government from blocking publication of its user-transparency report:

Twitter, the world’s largest microblogging platform, on Tuesday sued the U.S. government, alleging that the Justice Department’s restrictions on what the company can say publicly about the government’s national security requests for user data violate the firm’s First Amendment rights.

With its lawsuit, the San Francisco-based firm is seeking to go further than five other technology companies that earlier this year reached a settlement with the government on the permissible scope of disclosure at a time of heightened concern about the scale of government surveillance…

The bizarre part appears a bit later, in one of the government’s assertions:

Particularly vexing to the firm is the government’s position that not just the five firms who settled in January but all “similarly situated companies” are bound by the agreement

Can any legal eagle explain a possible source (besides the nether regions of some bureaucrat) from which such a doctrine might have originated?

[Isamu]

Here’s my quick take:

The Foriegn Surveillance Intelligence Act (FISA) allows the government, through various of it’s agencies, to order, via FISA Orders, the restriction of private entities from making public certain information about the nature of FISA Orders.

These restrictions would apply to any entity that may be created or developed into an entity that has similar information gathering capabilities as, for example, Twitter.

See

366201412716018407143.pdf

[Isamu]

So, to clarify, rather than there being “an agreement” per se, it was more like a case of the Attorney General saying “Hey, It was nice discussing the issue with all you guys at Google and Microsoft et al. We’ve thought about it and here’s what we’ll let you make public”.

Now Twitter thinks that the same restrictions shouldn’t apply to them because they weren’t party to the discussion.

Good luck with that.

[dstarfire]

It’s the legal principle used in class action suits. Unless you object to the settlement during the process, you’re stuck with whatever the lawyers (for both sides) agree to.

[Isamu]

@dstarfire

It’s the legal principle used in class action suits. Unless you object to the settlement during the process, you’re stuck with whatever the lawyers (for both sides) agree to.

Not exactly, because I think the situation is still ongoing in the sense that there was no settlement and no agreement not to bring further lawsuits in the future.

The big 5 internet companies dropped their litigation, for now. And they basically called the governments decision “a step in the right direction”, but they are not completely satisfied, it seems.

Twitter is free to bring as many lawsuits as it likes if it feels it has a valid cause of action. I just don’t think that their claim that they were not a party to the negotiations is a valid reason why they are not bound by the law (and the law in this case is whatever the AG dept. says it is, until overruled by the Supreme Court).

You, personally, weren’t a party to the discussions regarding the present traffic laws, but you are still bound by them. Similarly, a car made in 2015 was not in existence at the time the laws were made but will still be bound by them.

[Isilder]

Even if Twitter know they will lose, they may still make the same claim in order to have the explanation available to the general public.

If they don’t run the case, the general public will know “We did what the government told us to , with no fight !”

[Isamu]

@Isilder

Even if Twitter know they will lose, they may still make the same claim in order to have the explanation available to the general public.

If they don’t run the case, the general public will know “We did what the government told us to , with no fight !”

Exactly. It’s very much a public perception issue.

Google to the govt. [while the public is watching]:
“You fascists can’t tell us what to do! We have Freedom of Speech! We won’t sell out our user base, which is the basis of our business, just on your say so!”

Google to the govt. [in private]:
We are totally gonna do what you want, just let us give you a shiner, so that it looks like we didn’t bend over as soon as you dropped your pants.

[Schnitte]

@Isamu

You, personally, weren’t a party to the discussions regarding the present traffic laws, but you are still bound by them. Similarly, a car made in 2015 was not in existence at the time the laws were made but will still be bound by them.

I don’t think the constellation is exactly analogous to what the OP is asking about. In your traffic case example, the legal obligations exist as a matter of law; they are based on statute, not contract, and apply irrespective of the consent of the party against which they are brought.

In the Twitter case, however, the OP’s second cite implies that the Government submits that the settlement agreement is binding on Twitter on a contractual rather than statutory basis. That would indeed be odd. Of course the Government could make the point that everybody is subject to generally applicable legal disclosure restrictions because there’s a law that says so, but that does not seem to be the case; they seem to be saying that Twitter is subject to the terms of an agreement to which it is not a party, and that would be remarkable.

Having said that, I couldn’t find the original wording of the Government’s actual submission, but I could find a copy of Twitter’s complaint (PDF file). And there it says:

In a Notice filed with the FISC simultaneously with transmission of the DAG Letter, the DOJ informed the court of the agreement, the new disclosure options detailed in the DAG Letter, and the stipulated dismissal of the FISC action by all parties. A copy of the Notice is attached hereto as Exhibit 2. The Notice concluded by stating: “It is the Government’s position that the terms outlined in the Deputy Attorney General’s letter define the limits of permissible reporting for the parties and other similarly situated companies.” Exhibit 2 at 2 (emphasis added). In other words, according to the DOJ, the negotiated agreement reached to end litigation by five petitioner companies is not limited to the five petitioner companies as a settlement of private litigation, but instead serves as a disclosure format imposedon a much broader—yet undefined—group of companies. No further guidance has been offered by the DOJ regarding what it considers to be a “similarly situated” company. Further, the Notice cites no authority for extending these restrictions on speech to companies that were not party to the negotiated agreement.

[Isamu]

@Schnitte

I don’t think the constellation is exactly analogous to what the OP is asking about. In your traffic case example, the legal obligations exist as a matter of law; they are based on statute, not contract, and apply irrespective of the consent of the party against which they are brought.

In the Twitter case, however, the OP’s second cite implies that the Government submits that the settlement agreement is binding on Twitter on a contractual rather than statutory basis. That would indeed be odd. Of course the Government could make the point that everybody is subject to generally applicable legal disclosure restrictions because there’s a law that says so, but that does not seem to be the case; they seem to be saying that Twitter is subject to the terms of an agreement to which it is not a party, and that would be remarkable.

Having said that, I couldn’t find the original wording of the Government’s actual submission, but I could find a copy of Twitter’s complaint (PDF file). And there it says:

I don’t think the Deputy Attorney General is in the habit of making contracts with private industry on behalf of the Department of Justice. So any talk of a contract or an agreement I put down to lazy reporting, ignorance or Muppertry*

I could be wrong though. Find me a contract and i will re-consider.

There is a branch of law known as Administrative law (not my area of specialty) and it is concerned with the activities of government agencies. Government agencies and their office-holders are empowered to make decisions and rules regarding a broad range of day to day government functions. They have procedures that they follow but have a very wide discretion to execute their functions as they see fit. They draw their power from a number of sources, such as legislation (eg APA), but also under agency rules and informal practice. In essence, it is fair to say that they do “make law” when they make a decision. So long as they follow procedures, do not exceed their authority and do not do anything unconstitutional, their laws and rules stand.

I’m not exactly sure why the Deputy Attorney general even decided to meet with the big 5 media companies. He really didn’t need to, and it looks like it backfired on him a little.

*Muppetry in the case of Twitter’s lawyers in an attempt to paint the facts a certain way.