Twitter is suing the Department of Justice in the Northern District of California, contending that restrictions on disclosing the number of FISA requests and national security letters it receives are unconstitutional prior restraints on its speech. Five U.S. communications providers filed motions in 2013 to allow them to publish aggregate data about FISA orders and national security letters they had received. These five companies — Google, Microsoft, Facebook, Yahoo!, and LinkedIn — entered into a settlement with the Department of Justice allowing for limited disclosures. Twitter took issue with the fact that providers who have never received a NSL or FISA order are apparently forbidden to reveal that fact. The government argued that the district court should dismiss the case, contending that the FISA Court is a more appropriate venue.
In an amicus brief, the Reporters Committee argued that the district court should exercise its jurisdiction over Twitter’s case because a decision that only the FISA Court could hear the case would undercut the public right of access to court proceedings and documents. Our brief argues that the presumptive First Amendment and common law rights of access to federal court proceedings and documents are essential checks on government conduct. The FISA court, however, does not recognize the presumptive First Amendment right of access, and in fact has embraced a narrow standard for when the public has standing to bring an access claim at all. As a result, FISA proceedings and documents are usually closed to the public not only during the pendency of the proceedings, but for long afterward.