Anti-constitutional FISA court gagging Twitter

Guardian - Can a case about the freedom of speech be resolved in a secret court? In a widely publicized case, Twitter sued the Obama administration in a federal district court in California. The company wished to release a transparency report relating to the user information it is forced to turn over to the government under various surveillance collection programs, including the Foreign Intelligence Surveillance Act and the National Security Letter statutes. The government’s preferred venue for resolving Twitter’s First Amendment claim, though, resembles a black box more than an American court.

According to the government, the Fisa court in Washington, DC should adjudicate Twitter’s constitutional claim about its right to speak. At a 5 May 2015 hearing before the federal court in California, the government urged it to transfer major parts of the case to the secret Fisa court, which it deigns to claim is better suited to hearing complaints about ... overzealous secrecy.

But secret tribunals are not appropriate forums to resolve questions of constitutional law about secrecy itself. Although the Fisa court is a federal court composed of judges appointed under the United States Constitution, just like the federal trial court in which Twitter brought its case, it is ill-equipped to resolve questions that directly impact public knowledge of substantial government programs.

The company argues that the First Amendment permits it to publish the specific number of requests that it receives pursuant to secretive foreign intelligence and national security authorities, including Fisa.

Twitter is making a classic constitutional claim. The micro-blogging platform argues that, like any publisher or street-corner speaker, it cannot be gagged from communicating with the public unless the government has a very good reason to muzzle it. Such restraints on speech are heavily disfavored under the First Amendment and, rightly, are rarely upheld by the courts.

Even after the early June passage of the USA Freedom Act, which makes important changes to the intelligence community’s surveillance programs, a key problem remains unresolved: the recipients of secret national security requests are routinely gagged from disclosing data about those requests. The decision about where Twitter’s First Amendment battle should be fought could reveal a crucial limitation in the USA Freedom Act’s reforms.