Twitter, Inc. v. Lynch et al

RESPONSE

N.D. Cal.February 5, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Michael A. Sussmann, D.C. Bar No. 433100 (Admitted pro hac vice) MSussmann@perkinscoie.com James G. Snell, Bar No. 173070 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549 (Admitted pro hac vice) HBerlin@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Tel: 650-838-4300 Fax: 650-838-4350 Attorneys for Plaintiff Twitter Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TWITTER INC., Plaintiff, v. LORETTA E. LYNCH, Attorney General of the United States, et al., Defendants. Case No. 14-cv-4480 PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Date: March 15, 2016 Time: 2:00 p.m. Courtroom 1, Fourth Floor Hon. Yvonne Gonzalez Rogers Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page -i- INTRODUCTION .......................................................................................................................... 1 STATEMENT ................................................................................................................................. 2 A. Statutory background .............................................................................................. 2 B. Twitter’s efforts to provide transparency ................................................................ 3 C. Prior proceedings .................................................................................................... 4 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT .................................................................................................................................. 5 A. This Court should adjudicate Twitter’s claims based on the FISA statute ............. 5 1. Twitter’s amended complaint does not challenge specific FISC orders ............. 6 2. This Court is an appropriate forum for considering Twitter’s claims; the FISC is not .................................................................................................. 8 B. Twitter has adequately alleged facts establishing standing to challenge the application of the Espionage Act to its speech ..................................................... 12 C. All three counts of the amended complaint state claims under the First Amendment ........................................................................................................... 16 1. The government’s classification decision does not defeat Twitter’s First Amendment claim ..................................................................................... 16 2. Twitter has a First Amendment right to speak about its compelled participation in judicial proceedings ......................................................... 18 CONCLUSION ............................................................................................................................. 22 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 2 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page -i- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS CASES ACLU of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004) .....................................................................................................14 ACLU v. Clapper, 804 F.3d 617 (2d Cir. 2015) ......................................................................................................10 ACLU v. FBI, No. 11 Civ. 7562 (S.D.N.Y.) ......................................................................................................9 Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002 (9th Cir. 2003) ...................................................................................................13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................................................5 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..............................................................................................................5, 18 Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) .............................................................................................22 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ..................................................................................................16, 19, 22 Butterworth v. Smith, 494 U.S. 624 (1990) ............................................................................................................20, 21 Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) ...................................................................................................13 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ............................................................................................................19, 22 City of L.A. v. Patel, 135 S. Ct. 2443 (2015) ................................................................................................................6 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..............................................................................................................10 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ....................................................................................................5 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ....................................................................................................................6 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 3 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page -ii- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Ctr. for Cmty. Action & Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019 (9th Cir. 2014) ...............................................................................................5, 18 Dep’t of the Navy v. Egan, 484 U.S. 518 (1988) ..................................................................................................................17 Earl of Shaftesbury’s Case, 8 St. Tr. 759 (1681) ............................................................................21 Hinds Invs., L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011) .......................................................................................................5 Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .....................................................................................................13 In the Matter of the Search Warrant for: [redacted]@hotmail.com et al., 74 F. Supp. 3d 1184 (N.D. Cal. 2014) ......................................................................................17 In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court’s Rule on Statutory Access Rights, No. 13-01 (FISA Ct. June 12, 2013) .........................................................................................10 In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007) .........................................................................................9 In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. 13-02 (FISA Ct. Sept. 13, 2013) ..........................................................................................9 In re Russo, 53 F.R.D. 564 (C.D. Cal. 1971) ................................................................................................21 In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876 (S.D. Tex. 2008) ......................................................................................17 John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ......................................................................................................18 Libertarian Party of L.A. Cty. v. Bowen, 709 F.3d 867 (9th Cir. 2013) ...............................................................................................13, 14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................................................................13 McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) ...................................................................................................13 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page -iii- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) ....................................................................................................................9 Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015) ..................................................................................................10 Oregon v. Legal Servs. Corp., 552 F.3d 965 (9th Cir. 2009) .....................................................................................................13 Papasan v. Allain, 478 U.S. 265 (1986) ..................................................................................................................18 Roth v. United States, 354 U.S. 476 (1957) ..................................................................................................................22 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ....................................................................................................................20 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) ..................................................................................................................19 Snepp v. United States, 444 U.S. 507 (1980) ..................................................................................................................17 Treadaway v. Acad. of Motion Picture Arts & Scis., 783 F.2d 1418 (9th Cir. 1986) .....................................................................................................6 United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010) ......................................................................................................15 United States v. Alvarez, 132 S. Ct. 2537 (2012) (plurality opinion) ................................................................................19 United States v. Aquino, 555 F.3d 124 (3d Cir. 2009) ......................................................................................................15 United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011) ............................................................................................15 United States v. Kiriakou, 898 F. Supp. 2d 921 (E.D. Va. 2012) ........................................................................................15 United States v. Malki , 718 F.3d 178 (2d Cir. 2013) ......................................................................................................15 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 5 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page -iv- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS United States v. Mascheroni, 612 F. App’x 504 (10th Cir. 2015) ...........................................................................................15 United States v. Mohamud, No. 3:10-CR-00475-KI-1, 2014 WL 2866749 (D. Or. June 24, 2014).....................................10 United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) ...................................................................................................21 United States v. Rosen, 557 F.3d 192 (4th Cir. 2009) .....................................................................................................15 United States v. Sterling, 724 F.3d 482 (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014) .........................................15 United States v. Stevens, 559 U.S. 460 (2010) ..................................................................................................................19 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ....................................................................................................................7 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ....................................................................................................................6 STATUTES 18 U.S.C. § 2705(b) ........................................................................................................................17 18 U.S.C. § 2709 .............................................................................................................................18 18 U.S.C. § 3123(d) ........................................................................................................................17 28 U.S.C. § 1331 ...............................................................................................................................5 28 U.S.C. § 1391(b) ..........................................................................................................................5 50 U.S.C. § 1803 ...............................................................................................................................8 50 U.S.C. §§ 1805(c)(2)(B)...............................................................................................................2 50 U.S.C. § 1806(e) ........................................................................................................................10 50 U.S.C. § 1842(d)(2)(B) ............................................................................................................3, 8 50 U.S.C. § 1861 ...........................................................................................................................3, 8 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 6 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page -v- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Declaratory Judgment Act.................................................................................................................6 Espionage Act, 18 U.S.C. § 793 ............................................................................................. passim Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 ....................................................... passim Freedom of Information Act .......................................................................................................9, 10 Section 215 of the USA Patriot Act ..............................................................................................2, 9 OTHER AUTHORITIES First Amendment ..................................................................................................................... passim Fourth Amendment .........................................................................................................................10 Book of Oaths 114 (H. Twyford ed., 1689) ....................................................................................21 David S. Kris & J. Douglas Wilson, 1 National Security Investigations & Prosecutions § 5:2, at 128 (2d ed. 2012) ....................................................................................8 District Court for the Southern District of New York. Op. 13 ..........................................................9 Exec. Order No. 13526 § 1.5(a) (Dec. 29, 2009) ............................................................................16 Fed. R. Crim. P. 6 ............................................................................................................................22 Fed. R. Crim. P. 6(e)(2)(A) .............................................................................................................22 Fed. R. Crim. P. 6(e)(2)(B) .............................................................................................................22 Rule 63 ............................................................................................................................................11 Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 ............................4 4 William Blackstone, Commentaries on the Laws of England 126 (1769) ...................................21 Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 7 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS INTRODUCTION This case involves a First Amendment challenge to the government’s restrictions on Twitter’s ability to contribute to an important public debate by speaking truthfully about the extent of its receipt of national security legal process seeking information about its users. The government, having engaged in extensive speech of its own on the issue of provider compliance with government requests for user data, takes the position that providers such as Twitter are indefinitely banned from speaking on that issue, with exceptions only for reporting in pre- approved formats. It is in this context that Twitter seeks relief from this Court from unconstitutional statutory restrictions on its speech. The amended complaint states claims under the First Amendment, and this Court is the appropriate forum for resolving those claims. The government, however, asks this Court to dismiss Twitter’s amended complaint. It advances three arguments, but none is meritorious. First, the government argues that this Court should decline to rule on the merits of Twitter’s challenges to secrecy obligations imposed under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., and that Twitter should be directed to pursue those challenges in the Foreign Intelligence Surveillance Court (“FISC”). But this Court is the appropriate forum for considering a request for injunctive relief to protect First Amendment rights. The FISC, which cannot grant such relief, is not an appropriate forum for hearing Twitter’s challenge. Also, this case does not involve any particular order of the FISC, but rather is a broader challenge to the statutory regime.1 Moreover, it is ironic to suggest that the FISC, a court whose proceedings are largely conducted in secret, is the preferred forum for adjudicating First Amendment claims about transparency and public disclosure. Second, the government argues that Twitter lacks standing to challenge the application of the Espionage Act to its speech about national security legal process. In fact, Twitter has 1 References in this brief to FISA orders should not be taken to confirm (or deny) that Twitter has received any such orders. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 8 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS established standing because it has articulated a concrete plan to engage in conduct—the publication of a transparency report—that the government has already stated is unlawful. If Twitter were to pursue that plan, it is reasonable to conclude Twitter would face a risk of prosecution. Third, the government says that all of the claims in the amended complaint should be dismissed because Twitter has no First Amendment right to publish information that is properly classified. That argument is inapplicable to Twitter’s facial challenge to the indefinite duration of FISA’s secrecy obligations because that claim does not involve a request to publish classified information. To the extent the government’s argument pertains to Twitter’s other claims, it is untimely because—as the government has conceded—if the Court were to consider the propriety of the government’s classification decision, it would do so after disposition of the government’s motion to dismiss and only after considering evidentiary submissions. The motion to dismiss should be denied. STATEMENT A. Statutory background The Foreign Intelligence Surveillance Act contains five separate titles that permit the government to obtain court-ordered real-time surveillance or disclosure of stored user records from a communications provider: Title I (electronic surveillance of communications content and metadata); Title III (disclosure of stored content and non-content records); Title IV (provisioning of pen register and trap and trace devices to obtain dialing, routing, addressing and signaling information); Title V (disclosure of “business records”) (also referred to as “Section 215 of the USA Patriot Act”); and Title VII (surveillance of non-U.S. persons located beyond U.S. borders). Each of these titles of FISA contains a restriction that limits a provider’s ability to disclose information relating to a specific FISA request. Several provisions require the FISC to direct the recipient of a FISA request to comply in such a manner as will protect the secrecy of the court- ordered electronic surveillance, physical search, or installation of a pen register or trap and trace device, or the acquisition of foreign intelligence information, 50 U.S.C. §§ 1805(c)(2)(B) (Title Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 9 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS I), 1824(c)(2)(B) (Title III), 1842(d)(2)(B) (Title IV), 1881a(h)(1)(A) (Title VII). FISA also contains provisions that directly instruct the recipient of a FISA order that it may not disclose the existence of a pen register or trap and trace device “unless or until ordered by the court,” 50 U.S.C. § 1842(d)(2)(B) (Title IV), and that it may not “disclose to any other person” the existence of a business records order, 50 U.S.C. § 1861(d)(1) (Title V). No provision in FISA directs the FISC to prohibit the disclosure of aggregate numbers of FISA orders that a provider has received or directly prohibits a provider from disclosing those numbers. In addition, the Espionage Act, 18 U.S.C. § 793, criminalizes a number of actions involving the disclosure or improper handling of information “relating to the national defense.” In particular, Subsection (d) makes it a crime for anyone who has lawful possession of any “information relating to the national defense” that “could be used to the injury of the United States or to the advantage of any foreign nation,” to communicate that information “to any person not entitled to receive it.” Id. § 793(d). Penalties for violations of the Espionage Act include fines and imprisonment. Id. § 793(h). B. Twitter’s efforts to provide transparency Twitter seeks to give its users meaningful information about the extent of government surveillance on its network. In April 2014, Twitter submitted to the government a draft transparency report, which included information and discussion about the volume of FISA orders Twitter received, if any, in the second half of 2013. Twitter requested “a determination as to exactly which, if any, parts of its Transparency Report are classified or, in the [government’s] view, may not lawfully be published online.” Dkt. No. 1, Exh. 3. Five months later, the government informed Twitter that, having “carefully reviewed Twitter’s proposed transparency report,” it had “concluded that information contained in the report is classified and cannot be publicly released” because the report did not comply with the government’s approved framework for reporting data about FISA orders. Dkt. No. 1, Exh. 5. The government refused to identify what specific language in the transparency report could or could not be disclosed. After Twitter Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 10 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS filed this lawsuit, however, the government prepared a redacted version of the report that it said could be publicly released. Dkt. No. 21. The government’s approved disclosure framework is set forth in a letter dated January 27, 2014, from Deputy Attorney General James M. Cole to the general counsels of five Internet companies, not including Twitter (the “DAG Letter”). Dkt. No. 1, Exh. 3. (The DAG letter was described in detail in Twitter’s initial complaint, see Dkt. No. 1, pp. 6–8.) The DAG Letter was prepared as part of a settlement of litigation the companies brought in the FISC. In a filing informing the FISC of the settlement, the government stated that the DAG Letter “define[s] the limits of permissible reporting for the parties and other similarly situated companies.” Dkt. No. 1, Exh. 2. C. Prior proceedings In response to the government’s refusal to allow it to publish its transparency report, Twitter brought this action seeking declaratory and injunctive relief. Dkt. No. 1. Defendants filed a partial motion to dismiss. Dkt. No. 28. On June 2, 2015, while that motion was pending, President Obama signed into law the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (“USA FREEDOM Act” or “USAFA”). The statute contains no express findings, and nothing in the legislative history indicates that Congress made any factual finding as to the extent to which information about FISA orders could be disclosed without harm to national security. The USAFA provides four new options for providers such as Twitter to report the volume of national security legal process received. On its face, the USAFA is permissive; that is, it allows providers to use one of the reporting options it provides, but it contains no express prohibition on other disclosures, and it does not amend or otherwise affect any of the nondisclosure requirements in FISA. In light of the USAFA, this Court denied the partial motion to dismiss as moot and, on its own motion, directed Twitter to file an amended complaint. Dkt. No. 85. On November 13, 2015, Twitter filed an amended complaint. Dkt. No. 88. The amended complaint sets forth three claims Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 11 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS based on the First Amendment. First, it alleges that the FISA nondisclosure provisions are facially unconstitutional because they require that FISA orders and directives be kept secret for an indefinite period of time. Second, it alleges that, to the extent that FISA’s nondisclosure provisions are construed to prohibit Twitter from publishing information about the aggregate number of FISA orders it receives, those provisions are unconstitutional as applied to Twitter. Third, it alleges that, to the extent the Espionage Act can be used to punish Twitter for publishing information about the aggregate number of FISA orders it receives, that statute is also unconstitutional as applied to Twitter. STANDARD OF REVIEW On a motion to dismiss, the Court must “accept as true the factual allegations in the complaint and construe those allegations in the light most favorable to the nonmoving party.” Ctr. for Cmty. Action & Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019, 1022–23 (9th Cir. 2014). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The grant of a motion to dismiss is appropriate only “where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 849–50 (9th Cir. 2011). ARGUMENT A. This Court should adjudicate Twitter’s claims based on the FISA statute The government does not dispute that this Court has subject-matter jurisdiction over Twitter’s FISA claims, see 28 U.S.C. § 1331, nor does it dispute that the Northern District of California is an appropriate venue for this action, see 28 U.S.C. § 1391(b). Instead, it argues (MTD 10–16) that this Court should “decline to hear” Counts I and II of the amended complaint so that Twitter can pursue those claims in the FISC. That argument lacks merit. A federal court has “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 12 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS When jurisdiction exists, a federal court’s “obligation” to hear and decide a case is “virtually unflagging.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). The government points out (MTD 11) that the Declaratory Judgment Act confers discretion, and that a court presented with a claim under that statute may decline to exercise jurisdiction based on “considerations of practicality and wise judicial administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). But Twitter’s amended complaint seeks more than a declaratory judgment; it also seeks an injunction “prohibiting Defendants . . . from seeking to enforce the unconstitutional prohibitions on Twitter’s speech, or to prosecute or otherwise seek redress from Twitter for exercising its First Amendment rights.” Am. Compl. ¶ 17. Because Twitter is not seeking only a declaratory judgment, this Court does not have the discretion the government suggests. That is, the Court does not have discretion simply to ignore an allegation that an injunction is necessary to remedy an ongoing constitutional violation, and none of the cases cited by the government establishes otherwise. In any event, even if this Court does have discretion to decide whether or not to adjudicate this case, it should exercise that discretion by ruling on the merits of Twitter’s amended complaint because the equities strongly favor adjudication of this case in a United States District Court. 1. Twitter’s amended complaint does not challenge specific FISC orders The premise of the government’s argument is that Counts I and II of Twitter’s amended complaint “concern legal process issued by the FISC.” MTD 10; see id. at 12 (suggesting that a court should not “entertain[] an independent action for relief from the final order of another court”) (quoting Treadaway v. Acad. of Motion Picture Arts & Scis., 783 F.2d 1418, 1422 (9th Cir. 1986)). That premise is false. Count I of the amended complaint does not challenge any particular FISA order that Twitter may have received. Instead, it is a facial challenge to the secrecy provisions of the FISA statute. Am. Compl. ¶ 52 (“Twitter therefore seeks a declaration that the FISA secrecy provisions violate the First Amendment on their face.”). “A facial challenge,” the Supreme Court has explained, “is an attack on a statute itself as opposed to a particular application.” City of L.A. v. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 13 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Patel, 135 S. Ct. 2443, 2449 (2015); see Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). It therefore does not require a court to consider specific applications of the statute to the plaintiff. Similarly, Count II claims that, “[t]o the extent that FISA’s secrecy provisions are construed to prohibit Twitter from publishing information about the aggregate number of FISA orders it receives, the FISA secrecy provisions are unconstitutional.” Am. Compl. ¶ 57. That count, too, does not challenge any particular order. Indeed, the amended complaint does not allege that Twitter has necessarily received any FISA orders. Am. Compl. ¶ 7 (alleging that “Twitter either has received a FISA order in the past or has a reasonable fear of receiving one in the future”). In footnote 2 of its motion, the government quotes a nondisclosure provision from a FISA order—conspicuously without citation to the order from which the quotation is drawn—and says that “disclosing the number of Title I orders received would violate such a provision as it would ‘disclose . . . the existence’ of each of the orders.” 2 (MTD 6 n.2). Significantly, the quoted language was extracted from an unidentified but presumably classified FISA order. Applying the government’s reasoning, the public disclosure of that language in the government’s motion would seem to violate the quoted nondisclosure requirement just as much as “disclosing the number of Title I orders received” would. In fact, the government has gone so far as to reveal the specific content of a classified order, while Twitter merely seeks to publish numbers that would only reveal the existence of orders (to the extent they have been received). The government’s discussion of that language in a public filing illustrates the flaw in the government’s argument because it demonstrates that it is indeed possible to reveal certain information about FISA orders without having to review or scrutinize the contents of any particular order. That is precisely what Twitter is attempting to do by asserting Count II. Although the government argues that all FISA nondisclosure obligations are the product of FISC orders, it concedes (MTD 10–11) that FISA itself imposes nondisclosure obligations 2 The government describes the quoted order as a “typical[]” FISA order. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 14 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS directly on the recipients of an important class of FISA orders—those under Title V requiring “[a]ccess to certain business records for foreign intelligence and international terrorism investigations.” 50 U.S.C. § 1861. The government says that the statute channels those challenges to the FISC, but that is incorrect. Section 1861(f) provides a mechanism for challenging FISA nondisclosure orders in the FISC, but nothing in that provision indicates that it is the exclusive mechanism for such challenges. The government also overlooks that the nondisclosure provisions contained in other kinds of FISA orders are dictated by the statute and that these provisions do not reflect an exercise of discretion on the part of the FISC. See, e.g., 50 U.S.C. § 1842(d)(2)(B) (Title IV) (requiring that an order “shall direct that [the provider] shall not disclose the existence of the investigation or of the pen register or trap and trace device to any person unless or until ordered by the court”) (emphasis added). Thus, even if Count II of Twitter’s amended complaint did also apply to particular orders, it is still first and foremost a challenge to the statute, not to any particular decisions of the FISC. 2. This Court is an appropriate forum for considering Twitter’s claims; the FISC is not The government does not suggest that this Court is prohibited from or incapable of adjudicating Twitter’s claims related to FISA. Instead, it asserts (MTD 15) that the FISC would be a superior forum because of its “expertise” and “specialized knowledge.” In fact, the FISC is not an appropriate forum for hearing this case and, as explained above, does not have expertise or specialized knowledge relating to Twitter’s claims. The FISC is a specialized court with a limited jurisdiction to issue orders authorizing surveillance or searches under FISA. See 50 U.S.C. § 1803; David S. Kris & J. Douglas Wilson, 1 National Security Investigations & Prosecutions § 5:2, at 128 (2d ed. 2012). It does not have authority to issue a declaratory order or an injunction such as that sought here. The government cites no authority suggesting otherwise. It states (MTD 11 n.5) that five companies sought declaratory relief in an action in the FISC in 2013, but that is not accurate: one company (Google) sought declaratory relief in the FISC and thereafter four other companies joined the litigation. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 15 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Moreover, the government does not state—and indeed it does not know—why Google chose to file in the FISC, but it is unlikely to be because Google perceived that court to be its only option. Finally, the case was not litigated to judgment, so the FISC never determined whether it had authority to grant the requested relief. Simply put, the relief Twitter seeks, which this Court is authorized to grant, is not available in the FISC. Of course, the FISC does have an inherent “supervisory power over its own records and files.” In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486 (FISA Ct. 2007) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). But that power would not allow the FISC to enter the relief Twitter seeks in this case because, as explained above, the challenged prohibition on Twitter’s speech emanates from federal statutes, not exclusively FISA orders. More importantly, that aspect of the FISC’s authority is not exclusive. To the contrary, in In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. 13-02 (FISA Ct. Sept. 13, 2013), the FISC held that a federal district court was the appropriate forum to decide whether to disclose FISC opinions. In that case, the ACLU had previously filed a Freedom of Information Act (“FOIA”) lawsuit in the United States District Court for the Southern District of New York, seeking disclosure of FISC opinions relating to Section 215 of the USA Patriot Act. ACLU v. FBI, No. 11 Civ. 7562 (S.D.N.Y.). When the ACLU subsequently filed a motion in the FISC for the release of the opinions, the FISC held that “as a matter of comity, and in order to conserve judicial resources and avoid inconsistent judgments,” it would defer to the District Court for the Southern District of New York. Op. 13. Specifically, the FISC noted that “[t]he present motion . . . asks the FISC to do the same thing that the ACLU is asking the District Court in New York to do in the FOIA litigation: ensure that the opinions are disclosed, with only properly classified information withheld. Having both courts proceed poses the risks of duplication of effort and inconsistent outcomes that the first-to-file rule is intended to avoid.” Id. at 15. Nowhere in its opinion did the FISC suggest that it was better suited, because of its “expertise” or “specialized knowledge,” to handle the issue. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 16 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Similarly, in In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court’s Rule on Statutory Access Rights, No. 13- 01 (FISA Ct. June 12, 2013), a FOIA requestor had sought the disclosure of FISC records in the government’s possession. In litigation in the United States District Court for the District of Columbia, the government argued that the rules of the FISC prohibited the disclosure of a certain FISC opinion. The requestor then sought relief from the FISC, which held that its rules would not prohibit the government’s disclosure of the subject FISC opinion in the event it was determined by the district court to be subject to disclosure under FOIA. Again, nowhere in the opinion did the FISC intimate that the FISC would be better suited, because of its expertise or specialized knowledge, to handle any request for the disclosure of FISC records. Conversely, district courts routinely review the legality of orders entered by the FISC as well as the government’s compliance with those orders. For example, whenever the government uses FISA-derived evidence in a criminal proceeding, 50 U.S.C. § 1806(e) permits the target of the surveillance to “move to suppress the evidence obtained or derived from such electronic surveillance [in a district court] on the grounds that—(1) the information was unlawfully acquired; or (2) the surveillance was not made in conformity with an order of authorization or approval.” See, e.g., United States v. Mohamud, No. 3:10-CR-00475-KI-1, 2014 WL 2866749 (D. Or. June 24, 2014) (defendant moved to suppress evidence obtained pursuant to Title VII of FISA). And outside of the suppression context, district courts have heard constitutional challenges to FISA and to orders issued under it. See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (declaratory judgment action filed in federal district court challenging constitutionality of FISA Amendments Act of 2008); ACLU v. Clapper, 804 F.3d 617 (2d Cir. 2015) (declaratory judgment action arguing that NSA telephony metadata program exceeds statutory authority under FISA and violates the Fourth Amendment); Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015). There is no reason for a different result here. To the contrary, considerations of fairness and practicality weigh heavily in favor of resolving this case in this Court. The government claims (MTD 11) that considerations of fairness Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 17 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS to the litigants are “neutral” between this Court and the FISC, but that is not a fair or accurate assessment, and it overlooks the significant advantages that the FISC affords the government. In the context of this case, a proceeding in the FISC would differ from one in this Court in the following ways: a. Twitter’s officers and its in-house lawyers could not appear before the FISC. The Rules of Procedure for the FISC require all attorneys appearing before it to have a national security clearance, and no Twitter officer or Twitter lawyer—apart from its outside counsel—currently has a national security clearance. See FISC Rule 63. Sending this case to the FISC therefore will end all company participation in court proceedings. b. The FISC offers far greater opportunity than a district court for the presentation of ex parte and classified submissions that are closed to any party but the government; indeed, that is the usual practice of the FISC. (The government’s suggestion that there would be “open access to any unclassified submissions” in the FISC is therefore not a meaningful promise of openness. MTD 12 (emphasis added).) c. The FISC’s public docket is a limited, selective docket, posting filings at the discretion of the court. d. The government is more familiar with the FISC, its judges, and procedures than non-government lawyers, and that knowledge could not be reproduced by private litigants and their counsel. e. The government has exclusive access to and familiarity with the body of classified case law that has been generated by the FISC since its inception in 1978. f. Finally—and in stark contrast with federal district courts—the FISC is a nonpublic court that provides no way for the public or any nonparty to view its proceedings (with certain recent exceptions for public filing of Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 18 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS pleadings and other documents). Indeed, so far as we are aware, the FISC has never held a hearing or oral argument that was open to the public. Twitter believes it would be particularly inappropriate to resolve this case—which involves a claim of a First Amendment right to public disclosure—in a nonpublic forum. Judicial economy also favors resolving Counts I and II in this Court. The government appears to concede that the Espionage Act issues raised by Count III are appropriate for resolution in this Court. The government thus does not seek to have the entire case heard by the FISC; instead, it seeks to bifurcate the case, so that Count III is heard in this Court while Counts I and II are heard by the FISC. Given the close relationship between the issues the government seeks to have sent to the FISC and those it seeks to have resolved here, such bifurcation would create the possibility of inconsistent adjudication, and it would ill serve the interests of judicial economy. B. Twitter has adequately alleged facts establishing standing to challenge the application of the Espionage Act to its speech In Count III of the amended complaint, Twitter alleges that it wishes to disclose information about the aggregate number of FISA orders it has received, including as set forth in its draft transparency report. Am. Compl. ¶ 36. The government has informed Twitter that “the information contained in the report is classified and cannot be publicly released.” Dkt. No. 1, Exh. 5. And the government acknowledges (MTD 2) what is evident on the face of the statute, namely, that “a person who possesses classified national security information and has been advised that he is bound not to disclose such information could be prosecuted under the Espionage Act if he does so.” Because the Espionage Act has the concrete and immediate effect of restricting Twitter’s speech, Twitter has standing to challenge the application of that statute to it. The government errs when it argues (MTD 16–19) that Twitter nevertheless lacks standing. As an initial matter, the government notes (MTD 16) that the plaintiff has the burden of Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 19 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS establishing standing. At the motion-to-dismiss stage, however, a plaintiff can carry that burden simply by alleging facts that, if proved, would show an injury. Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, as the government recognizes (MTD 17), the Ninth Circuit has held that “a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury” and therefore, in First Amendment cases such as this one, “the inquiry tilts dramatically toward a finding of standing.” Libertarian Party of L.A. Cty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013) (quoting Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)). “[W]here a plaintiff has refrained from engaging in expressive activity for fear of prosecution under the challenged statute,” the plaintiff need only show that its “self- censorship . . . is based on ‘an actual and well-founded fear’ that the challenged statute will be enforced.” Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1001 (9th Cir. 2010) (quoting Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)). In assessing whether a plaintiff has adequately alleged a credible threat of prosecution, “courts examine three factors: (1) whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the challenged statute.” Libertarian Party of L.A. Cty., 709 F.3d at 870 (quoting McCormack v. Hiedeman, 694 F.3d 1004, 1021 (9th Cir. 2012)). Here, all three factors weigh heavily in favor of finding standing. First, Twitter has articulated a concrete plan to engage in conduct that, according to the government, would violate the Espionage Act. Specifically, it has drafted a transparency report that it wishes to publish, a report that the government says contains classified information. Am. Compl. ¶ 36; Dkt. No. 1, Exh. 5. The government asserts (MTD 18) that Twitter “has not avowed that it intends to violate the law by disclosing classified information” and that it “evinces no concrete plan to violate the law,” but that statement ignores Twitter’s transparency report. Similarly, the government quotes paragraph 7 of the amended complaint, which alleges that Twitter wishes “to disclose details about specific FISA orders it has received or will received as Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 20 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS soon as doing so will no longer harm national security,” and it reasons (MTD 18) that Twitter has “expressly disavow[ed] a desire to publish classified information.” The quoted passage of the amended complaint, however, refers to Count I, Twitter’s claim that the FISA statute is unconstitutional because it imposes no time limit on the secrecy of individual FISA orders. That claim is distinct from Count II, which claims that the Espionage Act is unconstitutional to the extent it criminalizes publication of the aggregate number of FISA orders, as reflected in the transparency report. Count III turns on Twitter’s plan to disclose information that could be defined under the Espionage Act as “national defense information.” Crucially, Twitter is not relying on vague or speculative allegations that it might wish to engage in speech at some point in the future. Rather, it has provided both the government and this Court with the text of the specific statement it wishes to make. Because that statement has been determined to contain classified information, which is necessarily “national defense information” under Section 793(d), Twitter’s plan to publish it is nothing less than a plan “to violate the law by disclosing classified information,” MTD 18. Indeed, Twitter’s plans are considerably more concrete than others that have been found sufficient to establish standing. For example, in Libertarian Party of Los Angeles County, the Ninth Circuit held that a plaintiff who “allege[d] that he intends to gather signatures for . . . candidates in future elections but will be prohibited by state law from doing so” had alleged a concrete plan. 709 F.3d at 871; see also ACLU of Nev. v. Heller, 378 F.3d 979, 984 (9th Cir. 2004) (plaintiffs established standing by alleging that they planned “to circulate petitions to place certain referendum measures on statewide or local ballots”). Under the standard applied in those cases, Twitter has shown that it has a sufficiently concrete plan to engage in conduct that will violate the statute. As to the second factor—a threat of prosecution—the government argues (MTD 18) that Twitter “does not allege that the Government has specifically threatened to initiate Espionage Act proceedings against it.” That is untrue. As noted above, the government has sent a letter to Twitter’s counsel stating that “the information contained in [Twitter’s draft transparency report] is classified and cannot be publicly released.” Dkt. No. 1, Exh. 5. To be sure, that letter did not Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 21 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS use the word “prosecute” or contain a citation to 18 U.S.C. § 793, but the standing doctrine does not impose a magic-words requirement. The Espionage Act is the statute that criminalizes the disclosure of classified information. A letter informing Twitter that it “cannot” engage in the speech in which it wishes to engage because that speech “is classified” is necessarily a threat of prosecution under the Espionage Act. Lest there be any doubt, the remainder of the government’s motion (MTD 19–23) argues that Twitter’s challenge to the Espionage Act fails on the merits because “Congress . . . may properly restrict the disclosure of information that would harm national security,” an argument that assumes that Twitter’s speech has indeed been restricted. The government cites no authority for the proposition that a more specific threat is necessary to establish standing. The government suggests (MTD 19) that “the need to threaten or undertake any prosecution in circumstances like this . . . rarely arises because the law provides other adequate remedies.” Even if that were true, it is not relevant here in light of the specific statements the government has already made about Twitter’s proposed transparency report. To the extent the government means to argue that Twitter has other remedies available to it, that too is not relevant to the standing analysis. The government addresses the third factor—the history of prosecution under the statute— only in passing, but that factor also supports Twitter’s position. The Espionage Act has not fallen into desuetude. To the contrary, in just the last few years, the government has brought several criminal prosecutions based on the unlawful disclosure of classified information in violation of Section 793(d). See, e.g., United States v. Sterling, 724 F.3d 482, 488 (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014); United States v. Kiriakou, 898 F. Supp. 2d 921 (E.D. Va. 2012); United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 108 (2d Cir. 2010); United States v. Rosen, 557 F.3d 192, 194 (4th Cir. 2009); see also United States v. Mascheroni, 612 F. App’x 504, 505 (10th Cir. 2015) (prosecution for unlawfully retaining national defense information, in violation of 18 U.S.C. § 793(e)); United States v. Malki, 718 F.3d 178, 180 (2d Cir. 2013) (same); United States v. Aquino, 555 F.3d 124, 125 (3d Cir. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 22 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS 2009) (same). If Twitter were to publish its unredacted transparency report, there is no reason why Twitter would not be at risk of prosecution under the statute. C. All three counts of the amended complaint state claims under the First Amendment The government argues (MTD 19) that “none of plaintiff’s claims asserts a cognizable legal theory under the First Amendment.” Significantly, the government does not attempt to show that its restrictions on Twitter’s speech satisfy strict scrutiny; that is, that they are “justified by a compelling government interest and [are] narrowly drawn to serve that interest.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011). Instead, the government argues that “any restrictions” on the disclosure of the information at issue here would be consistent with the First Amendment because Twitter lacks a First Amendment right to publish that information. MTD 23 (emphasis added). That is so, the government says, for two reasons: first, the government has declared that the information is classified, and second, the information was obtained as a result of Twitter’s involvement in confidential judicial proceedings. Neither of those arguments provides a basis for dismissing the amended complaint. 1. The government’s classification decision does not defeat Twitter’s First Amendment claim As an initial matter, the government errs in arguing (MTD 19–20) that all of the claims in the amended complaint “are based on alleged First Amendment harm resulting from an inability to publish information that plaintiff does not dispute is classified.” As noted above, Count I of the amended complaint is a facial challenge to the FISA statute. In that count, Twitter claims that the statute is unconstitutional because it provides for secrecy obligations of indefinite duration.3 That count does not seek a declaration or an injunction allowing Twitter to disclose any particular information, but rather asks this Court to hold that restrictions on speech about FISA orders must 3 We note that all classification determinations are of limited duration and classified documents resulting therefrom are required to contain a “declassify on” date. See Exec. Order No. 13526 § 1.5(a) (Dec. 29, 2009) (“At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified.”). Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 23 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS be more narrowly tailored by being limited in time. Count I therefore does not involve a request to publish classified information.4 As to Counts II and III, the government correctly points out (MTD 20–21) that the President has authority to “classify and control access to information bearing on national security,” Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988), and that “[t]he Government has a compelling interest in protecting . . . the secrecy of information important to our national security,” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980). Those observations do not resolve this case, however, because the government’s mere statement that the information at issue is classified does not, by itself, establish that the information is indeed “important to our national security.” Id. Rather, as the government itself acknowledges, restrictions on the “First Amendment right to publish” apply only to “properly classified information.” MTD 21 (emphasis added). The government’s ipse dixit is not sufficient to defeat a First Amendment claim; this Court must assess whether classification is appropriate on the basis of an evidentiary record and after resolving any factual disputes. Indeed, the government previously acknowledged that if the court were to consider the propriety of the government’s classification decision, it would do so only after considering evidentiary submissions. Dkt. No. 29, at 8 (government’s portion of joint case-management statement) (“[T]he proper course for proceeding would be for the Court to first determine, based on submissions by the Government, whether the information is properly classified by the Executive Branch.”). At this stage of the case, dismissal is inappropriate because 4 Count I asks this Court to apply the principle that indefinite gag orders are unconstitutional in any context. Cf. In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 886–87 (S.D. Tex. 2008) (“[B]ecause the statutes authorizing these non-disclosure orders must be construed whenever possible in a manner that avoids constitutional infirmity, it follows that neither 18 U.S.C. § 2705(b) nor § 3123(d) may be interpreted to permit a gag order of indefinite duration.”). Therefore, “[a]s a rule, sealing and non- disclosure of electronic surveillance [demands] must be neither permanent nor, what amounts to the same thing, indefinite.” Id. at 877–78, 895 (rejecting indefinite nondisclosure provisions that prohibit providers from disclosing a legal demand to their users “until further order of the court”). Instead, when a nondisclosure order is appropriate, it should be limited to a definite period, subject to the government’s right to seek similarly definite extensions if needed. See, e.g., In the Matter of the Search Warrant for: [redacted]@hotmail.com et al., 74 F. Supp. 3d 1184, 1186 (N.D. Cal. 2014) (“Section 2705(b) clearly requires the court to define some end. That end could come in less than 90 days, 90 days exactly or even more than 90 days.”). Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 24 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS the government has made no effort to establish that the information at issue is properly classified nor is this the appropriate time for it to do so. The government argues (MTD 20) that “plaintiff’s Amended Complaint does not allege the information it wishes to publish is not, in fact, properly classified.” But the amended complaint does allege that Twitter has a First Amendment right to publish the information, which necessarily means that it was not properly classified. Am. Compl. ¶ 61. The amended complaint also questions the reliability of the classification, noting the government’s “pattern of selective declassification of specific FISA-related and other national security matters to allow government speech.” Am. Compl. ¶ 60. Adding an explicit statement to the effect that the information was improperly classified would have been unnecessary and inappropriate, as it would merely have stated Twitter’s legal conclusion. See Twombly, 550 U.S. at 555 (courts “are not bound to accept as true a legal conclusion couched as a factual allegation”) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In any event, to the extent there is any doubt on the adequacy of the allegations, the amended complaint must be construed “in the light most favorable to the nonmoving party.” Ctr. for Cmty. Action & Envtl. Justice, 764 F.3d at 1022–23. This Court should reject the government’s invitation to jump ahead and decide the propriety of the government’s classification decision without considering an evidentiary record. 2. Twitter has a First Amendment right to speak about its compelled participation in judicial proceedings The government also argues (MTD 22) that “restrictions on a party’s disclosure of information obtained through involvement in confidential judicial proceedings do not offend the First Amendment.” Here, the government again tries to re-cast this case as being about individual FISA orders, which Twitter has never affirmatively stated that it has received, rather than the FISA statute. Moreover, the government’s argument is incorrect. See John Doe, Inc. v. Mukasey, 549 F.3d 861, 876 (2d Cir. 2008) (holding that recipients of national security letters under 18 U.S.C. § 2709 may assert First Amendment challenges to the statutory prohibition on disclosing such letters, and rejecting “the Government’s contentions that the nondisclosure requirement can Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 25 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS be considered to satisfy First Amendment standards based on analogies to secrecy rules applicable to grand juries, judicial misconduct proceedings, and certain interactions between individuals and governmental entities”). While there are indeed some categories of speech that are not protected by the First Amendment, the speech at issue here is not one of them. The Supreme Court has made clear that the categories of unprotected speech are “well-defined and narrowly limited.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). In United States v. Stevens, 559 U.S. 460 (2010), the Court rejected, as “startling and dangerous,” the proposition that “[t]he First Amendment’s guarantee of free speech . . . extend[s] only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Id. at 470; accord Brown, 131 S. Ct. at 2734 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”); United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality opinion). Instead, the categories of unprotected speech are limited to those “historic and traditional categories long familiar to the bar.” Stevens, 559 U.S. at 468 (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in the judgment)). Although there may be “‘some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law,’” in the absence of “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the ‘judgment [of] the American people,’ embodied in the First Amendment, ‘that the benefits of its restrictions on the Government outweigh the costs.’” Brown, 131 S. Ct. at 2734 (quoting Stevens, 559 U.S. at 470, 472). No historical tradition supports denying protection to speech by parties such as the recipients of FISA orders, who are compelled to participate in what the government refers to as “confidential judicial proceedings.” Because the speech at issue here is not within any traditionally unprotected category, it is entitled to full First Amendment protection. The government’s efforts to demonstrate otherwise are unavailing. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 26 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS a. The government relies (MTD 22) on Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), in which the Supreme Court held that, as a condition of obtaining access to information through civil discovery, a party may be subjected to a protective order requiring that it preserve the confidentiality of that information. But the restriction upheld in Seattle Times differs from that at issue here in that it applied to a party who voluntarily sought out the information at issue and thereby accepted the attendant limitations on its speech. Recipients of FISA orders, on the other hand, have not asked to be subject to such orders. That distinction is critical to the First Amendment analysis: it is one thing to say that a party seeking access to confidential information can be prohibited from disclosing that information, but it is quite another to say that the government may impose a broad and indefinite gag order on a party simply because it has also demanded that the party assist in an investigation. b. Similarly unhelpful to the government is Butterworth v. Smith, 494 U.S. 624 (1990), in which the Supreme Court struck down a Florida statute prohibiting a grand-jury witness from “divulg[ing] information of which he was in possession before he testified before the grand jury.” Id. at 632. The government notes (MTD 22) that the Court in Butterworth did not consider “information which [the witness] may have obtained as a result of his participation in the proceedings of the grand jury,” such as the fact that he received a subpoena, or the questions he was asked—information analogous to that covered by a nondisclosure order in an NSL. 494 U.S. at 632; see id. at 637 (Scalia, J., concurring) (noting that the issues raised by a prohibition on the disclosure of such information “are not presented by the narrow question we decide today”). Although the government suggests that the First Amendment does not protect speech that discloses such information, there is no tradition of suppressing it, and the history of the law governing grand-jury witnesses illustrates the lack of support for the government’s position. At common law, grand jurors were required to maintain the confidentiality of grand-jury proceedings. But the recipients of FISA orders—persons whose only role in the government’s investigation is that they have been compelled to provide information to it—are more appropriately analogized to grand-jury witnesses, who were not subject to a duty of Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 27 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS confidentiality. Blackstone noted that “antiently it was held, that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence, if felony; and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision, and liable to be fined and imprisoned.” 4 William Blackstone, Commentaries on the Laws of England 126 (1769). He made no mention, however, of any similar rule for grand- jury witnesses. Similarly, grand jurors were required to swear that “the Kings Majesties Counsel, your fellows and your own, you shall keep Secret,” while witnesses were required to swear only that “[t]he Evidence that you shall give to the Inquest, upon this Bill shall be the truth, and the whole truth, and nothing but the truth.” Book of Oaths 114 (H. Twyford ed., 1689). It is not surprising that witnesses were not sworn to secrecy. One major reason for grand- jury secrecy was to protect the grand jury—and the accused—from the undue influence of the Crown, a rationale that would not have applied to witnesses. See Earl of Shaftesbury’s Case, 8 How. St. Tr. 759, 773–74 (1681) (grand jury asserted the right to sit in secret, with one of the grand jurors arguing that “the jury do apprehend, that in private they are more free to examine things in particular, for the satisfying their own consciences, and that without favour or affection”); id. at 821 (explaining that although the grand jury was not permitted to examine the witnesses in secret, it was permitted to deliberate in secret, and it ultimately refused to indict); United States v. Navarro-Vargas, 408 F.3d 1184, 1191 (9th Cir. 2005) (observing that the Earl of Shaftesbury’s Case “established grand jury secrecy, which continues to be a crucial element in grand juries serving as an independent screen”); see also In re Russo, 53 F.R.D. 564, 568 (C.D. Cal. 1971) (noting that the grand jury “gradually developed independence of action from the Crown” by “enclosing its proceedings in a veil of secrecy which the Crown was unable to penetrate”). Shielding the grand jury from improper governmental influence does not require gagging those called upon to give evidence. After the American Revolution, no State appears to have adopted a founding-era statute requiring witness secrecy. Beginning several decades later, a handful of States adopted such restrictions—the statute at issue in Butterworth is one example. But the Federal Rules of Criminal Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 28 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS Procedure expressly reject restrictions on disclosures by witnesses. See Fed. R. Crim. P. 6(e)(2)(B) (listing persons, not including witnesses, who “must not disclose a matter occurring before the grand jury”); Fed. R. Crim. P. 6(e)(2)(A) (“No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).”); Fed. R. Crim. P. 6 advisory committee’s note (1944) (noting that “[t]he seal of secrecy on witnesses seems an unnecessary hardship”). Under the Federal Rules, a grand-jury witness is free to disclose the questions he or she was asked and the testimony that he or she gave. In short, the government has not come close to establishing that there is an “American tradition of forbidding” the kind of speech at issue here—that is, speech by involuntary participants in a government investigation about their compelled participation. Brown, 131 S. Ct. at 2734. Certainly there is nothing comparable to the kind of historical tradition identified by the Supreme Court in recognizing other categories of unprotected speech, such as obscenity, see Roth v. United States, 354 U.S. 476 (1957), incitement, see Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and fighting words, see Chaplinsky, supra. c. The government cites (MTD 22) cases from other circuits upholding restrictions on speech by various participants in grand-jury proceedings. But none of those cases establishes the broad proposition that such speech is unprotected by the First Amendment, or that “restrictions on a party’s disclosure of information obtained through involvement in confidential judicial proceedings do not offend the First Amendment.” Id. Of course, to say that the First Amendment protects speech like that at issue here is not to say that such speech may never be restricted. Restrictions may be permissible, but only when they can withstand scrutiny under ordinary First Amendment standards, which the government has not attempted to satisfy here. CONCLUSION The motion to dismiss should be denied. Respectfully submitted. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 29 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS DATED: February 5, 2016 PERKINS COIE LLP By:/s/ Eric D. Miller Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Michael A. Sussmann, D.C. Bar No. 433100 (Admitted pro hac vice) MSussmann@perkinscoie.com James Snell, Bar No. 173070 JSnell@perkinscoie.com Hayley L. Berlin, D.C. Bar No. 1011549 (Admitted pro hac vice) HBerlin@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 Attorneys for Plaintiff Twitter Inc. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 30 of 30