Twitter Seeks Constitutional Right to Inform When 'It Has Not Received' Surveillance Requests

When Twitter filed its First Amendment lawsuit this week challenging the government gag on disclosing government surveillance requests to its customers, the company did so to establish "a constitutional right to truthfully inform its customers and the broader public that it has not received particular types of surveillance requests. In other words, Twitter is seeking judicial endorsement of its right to publish a 'warrant canary,'" Brett Max Kaufman writes in Just Security. According to Kaufman, the Electronic Frontier defines a warrant canary as 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,' thereby informing the public that the process has been received."

The reason why Twitter is fighting against government compulson to remain silent and to report when it has not received surveillance requests is that the government has taken the position that Twitter is bound by a settlement reached with other tech companies about reporting surveillance requests even though it did not sign onto the accord, Kaufman said.