Two major companies—a telecom and an "internet company"—have asked the US government simply for the right to disclose how often the NSA, FBI, and other agencies ask them for user information. Who are these companies? Who knows! The federal government has said that it's illegal for them to come forward and name themselves.
That's the astounding claim alleged by the two companies Tuesday in the Northern District of California court. The companies filed what's known as an amicus curiae brief in support of Twitter's ongoing legal battle with the US government, in which the social media company is fighting for the right to be able to publish more granular data about government information requests on its users.
The requests, called National Security Letters (NSLs), are not approved by a judge and are issued by the FBI. NSLs have since been deemed unconstitutional, but that decision is being appealed. In the meantime, more NSLs continue to be issued. Last year, the US Department of Justice finally said that companies could disclose information about NSL requests, but only in a way that makes it nearly useless.
"Our clients want to talk about their experience, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures"
Specific, government-approved companies can release the information, but only in increments of 1,000, and they aren't allowed to say if exactly zero requests were received, meaning they have to list the number of requests as being between 0 and 999.
Those stipulations were good enough for Facebook, Google, LinkedIn, Microsoft, and Yahoo, who agreed to those parameters. Twitter, however, decided to sue the government in October. Tuesday's brief, filed by lawyers at the Electronic Frontier Foundation who are representing the two companies, notes that any company receiving less than 1,000 letters are arbitrarily silenced by the government.
"The Department of Justice has simply decided that some service providers, who have received 1,000 or more NSLs, can participate—vaguely and partially—in public debates as recipients of NSLs," Kurt Opsahl and Andrew Crocker, lawyers with the EFF, wrote in the brief. "Meanwhile, providers who receive fewer than 1,000 NSLs remain barred from saying whether they have received any NSLs at all."
"Such measures are over broad and intrinsically arbitrary, since they are imposed without any consideration of the specific risks posed by providers' reporting on the NSLs they have received," they added. "The First Amendment requires more."
And that's why these companies have to remain anonymous. The federal government has decided that, were these companies to even disclose that they have indeed received government information requests would be a risk to national security. For that reason, the two organizations have been identified as, "a provider of long distance and mobile phone services," that received a NSL from the FBI in 2011, and an "internet company" that received two NSLs from the FBI in 2013.
The companies are involved in a separate court case surrounding the issue in Ninth Circuit Court. Both companies are forbidden from identifying themselves in that case, too.
"They do want to be able to identify themselves as being the entities that have been fighting against NSLs for years now," Opsahl told me. "They want to be able to speak out on the issues surrounding NSLs with the gravitas of being a recipient of one of them."
"Let's not lose sight of the fact that they are unconstitutional and a court has determined they are unconstitutional," he added.
We know very little about the companies, though it's (probably) safe to assume that neither are extremely large companies, considering that they apparently have received only a handful of NSLs.
The EFF argues in its brief that preventing the companies from speaking is improper use of prior restraint—the idea that a company or person should be silenced from speaking before actually speaking.
"We have prior restraints imposed at the government's whim, without any judicial oversight or review," Crocker said in a statement. "Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures."
It seems unlikely that the court will, separately, give these companies the ability to come out with their stories and their names. But their testimony is going to be used as fodder for Twitter's legal battle, and if Twitter wins, then we may see more companies speak up, and not under a pseudonym.