Transparency is a word we hear a lot these days. We hear it from our politicians, and we hear it from the tech companies and online businesses handling our personal and private information. Earlier this week, Twitter filed a Complaint for Declaratory Judgment against the United States Department of Justice and the Federal Bureau of Investigation. Regardless of the outcome, Twitter and its lawyers will come out of this big winners. Either they will have knocked down the walls around disclosure / transparency requirements for tech companies, or they'll look like heroes for trying to defend the privacy rights of their users. Twitter's only downside is the attorneys' fees they are paying. The upside: the word "Twitter" is in print, on television and spread all over the Internet several time every day until this is over. The "Mad Men" PR team handling this must just be thrilled.
Some Background on the Case
So, what's this all about anyway? At its core this case will determine whether Twitter can report data that reflects the "limited scope" of U.S. government surveillance of Twitter accounts. Remember, Twitter posts are public. Email and phone conversations are not. So, Twitter doesn't get a large number of requests for information.
Nevertheless, Twitter wants to be more candid in its twice yearly transparency reports. Tech firms may now report the number of government requests they receive in broad bands. For example, the may report receiving 1000 to 1099 requests in a given period. Twitter wants to report the exact number of national security related requests received in a particular time period, even if that number is zero.
Twitter says, "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," Ben Lee, a Twitter vice president, said in a post online using the hashtag #Transparency. "We should be free to do this in a meaningful way, rather than in broad, inexact ranges."
Here's how this all started. In April, Twitter sent the government a draft of its July transparency report requesting that it be reviewed for publication. In September, FBI General Counsel James A. Baker told Twitter attorney Michael A. Sussman, "We ... have concluded that information contained in the report is classified and cannot be publicly released." It also appears from this correspondence that we are talking about less than 250 government requests or 0.0000919 percent of Twitter's total users.
The government didn't specify the information in the report that was classified and it didn't specify what information Twitter was entitled to publish. Basically, the government's response served to block publication of the report in its entirety. Twitter believes this is a violation of its First Amendment right of free speech. Their Complaint says the government's position, "forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether."
Violation of the First Amendment?
NY Times bestselling author and CCO of Saving America Eric Yaverbaum is a social media expert who has commented on users' rights to privacy on Fox News, MSNBC and Huffington Post. Mr. Yaverbaum told me, "Maybe this is another wake-up call for the public. Nothing is private any more. I say, 'Deal with it.' Don't say it in a digital place unless you'd say it in the real world."
Now, we all know that our right to free speech is limited. We've all heard the one about not being permitted to shout "FIRE" in a crowded theater. We know speech that "incites" is limited. To put this in perspective, let's look at some things the court has permitted and has not permitted over the years.
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- Of students to wear black armbands to school to protest a war ("Students do not shed their constitutional rights at the schoolhouse gate.").
Tinker v. Des Moines, 393 U.S. 503 (1969).
- To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971).
- To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976).
- To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
- To incite actions that would harm others (e.g., "[S]hout[ing] 'fire' in a crowded theater.").
Schenck v. United States, 249 U.S. 47 (1919).
- To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957).
- To burn draft cards as an anti-war protest.
United States v. O'Brien, 391 U.S. 367 (1968).
- To permit students to print articles in a school newspaper over the objections of the school administration.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Of students to make an obscene speech at a school-sponsored event.
Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
- Of students to advocate illegal drug use at a school-sponsored event.
Morse v. Frederick, __ U.S. __ (2007).
Where do you think Twitter's claims fall in this First Amendment spectrum? Do you think the disclosure of this information could "incite actions that would harm others"?
Social Media Is Here to Stay
The government's response to Twitter's request to disclose information is further validation that social media is here to stay and in a very powerful way. "Social media is a force to be reckoned with," says Yaverbaum. "Governments have been toppled and social media has caused real revolutions to occur. This is definitely a statement about the power of social media by the government."
Even so, Mr. Yaverbaum agrees there are limits to our First Amendment right of free speech. "The people who put themselves in harm's way to protect Americans deserve to be protected. Someone needs to draw the line and decide how that is to be done and I'm glad it's not me."
So, where does this go from here? If Twitter wins the suit they will report on the scope of the government's surveillance of Twitter accounts. Twitter users will rejoice. If they lose, maybe people will change some of their social media habits realizing to some extent their life isn't as private as they think. Twitter will be a hero for trying to defend its users' First Amendment rights. Either way, Twitter wins the PR battle, getting free publicity on a daily basis for as long as the case is pending. And, of course, the lawyers get paid. It's good to stand up for the rights of others!
Photo credit Aaron Durand (@everydaydude) for Twitter, Inc.