Musk disappointed SCOTUS won’t weigh harms of feds secretly spying on X users.
On Monday, the Supreme Court declined to review an appeal from X (formerly Twitter), alleging that the US government’s censorship of X transparency reports served as a prior restraint on the platform’s speech and was unconstitutional.
This free speech battle predates Elon Musk’s ownership of the platform. Since 2014, the social media company has “sought to accurately inform the public about the extent to which the US government is surveilling its users,” X’s petition said, while the government has spent years effectively blocking precise information from becoming public knowledge.
Current law requires that platforms instead only share generalized statistics regarding government information requests—using government-approved reporting bands such as “between 0 and 99 times”—so that people posing as national security threats can never gauge exactly how active the feds are on any given platform.
But that law also gives the government and platforms discretion to agree when sharing exact statistics might pose no security risk. X argued that government censorship of its transparency reports should only occur when the government can prove there is a serious and imminent risk to national security if precise data is shared with the public. Due to the conflicting opinions in lower courts, X hoped that the Supreme Court would review the case and mandate judicial review of government requests to censor its transparency reports.
So far, the Supreme Court has not explained its decision not to take on the case, and it remains unclear if any justices have expressed interest in reviewing the case, CNBC reported.Advertisement
Soon after the court’s decision was announced, X owner Elon Musk expressed his dissatisfaction with the decision.
“Disappointing that the Supreme Court declined to hear this matter,” Musk posted on X.
X had argued that the public has a “significant interest” in knowing how often the US government requests information on X users. Prior restraints on speech are “highly dangerous,” X warned, and require prompt judicial oversight.
“It would be profoundly dangerous to democratic governance if the government, without first (or promptly) having to justify the speech restrictions before a court, could prevent citizens from reporting their encounters with government officials,” X argued.
A spokesperson for the Electronic Frontier Foundation—a nonprofit digital rights group that filed a brief in support of X in the lawsuit—shared a statement with Ars, expressing EFF’s disappointment in the SCOTUS decision.
“Companies should be able to tell us how often the government seeks information from them about us,” EFF said. “This ruling confirms that the government, in the guise of national security, can censor companies from giving us even the most basic, aggregated information about its demands from them, information that could allow us to evaluate the government’s near-constant claims for more power to surveil us.”
Since the lawsuit was filed, X has arguably taken a stronger stance toward resisting federal surveillance on the platform. In perhaps the most prominent example, X was fined $350,000 last year for contempt after delaying responding to a Department of Justice search warrant seeking information on Donald Trump’s account on the social media platform, CNBC reported. X unsuccessfully attempted to block an order banning the platform from informing Trump about the warrant, arguing that it had a right to communicate with its subscriber. However, ultimately, a DC appeals court upheld the non-disclosure order.
US convinced court that “secrecy is essential”
While it’s unknown how the Supreme Court reached its decision, it seems clear that the US government’s response to X’s petition for a writ of certiorari last December convinced the court that no review was necessary.
Government requests for information on X users come in the form of national security letters and orders under the Foreign Intelligence Surveillance Act (FISA), both of which Congress has deemed confidential, the US government told SCOTUS.
“Secrecy is essential to national security letters and FISA orders,” the US government argued, reminding the court that “disclosure of information related to the receipt of national security letters and FISA orders” is generally prohibited.
Before 2014, sharing information about these requests was completely banned. But that changed after “unauthorized disclosures by Edward Snowden of documents that purportedly contained classified national security information” detailing the government’s widespread digital surveillance. After those revelations, many platforms sought to “disclose data regarding their receipt of national security process to correct perceived inaccuracies in the press and to address public speculation about the nature and scope of their cooperation with the government,” the US told SCOTUS.
In response to this controversy, the then-director of national intelligence, James Clapper, “citing exceptional circumstances,” laid out a process for platforms to aggregate data on government information requests in pre-approved reporting bands that would not risk providing “a roadmap to adversaries revealing the existence of or extent to which government surveillance may be occurring” on a platform.
Officials argued that the limited framework for reporting government information requests did not amount to broad censorship and was appropriate because—”perhaps more than any other activity the government undertakes”—national security investigations “vitally depend on secrecy.”Advertisement
“Classified information obviously must be kept secret,” the US argued.
In its response filed in December, X accused the US of offering “an opaque word salad to obscure the serious threat to free speech posed by its conduct.” X reduced the US’s defense of its surveillance of social media platforms without judicial oversight as necessary to protect national security to simply saying, “Trust us, we’re the government.”
Declining to review the case means that the Supreme Court upheld a lower court’s ruling that no judicial review was necessary to block the government from restricting how X informs its users about requests for surveillance related to national security concerns.
EFF told Ars that SCOTUS letting that ruling stand “has seriously harmed First Amendment protections against censoring speech before publication.” In the group’s brief, EFF argued that the ruling “drastically” rewrites First Amendment law, “expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
While the US argued that platforms reporting generalized data is the “least restrictive means of serving” the country’s national security interests, X argued that without mandating judicial review, the government could effectively restrict X’s speech for up to 25 years while its users were left in the dark. X suggested that SCOTUS declining review would be “a recipe for boundless censorship.”
EFF’s brief warned that precise “transparency reporting is essential to public oversight of and accountability for government surveillance.”
“We’re disappointed the Supreme Court has allowed this decision to stand,” EFF told Ars. “Too often, courts allow the government to use national security concerns to undermine our constitutional rights.”
