It's one of the more shocking and annoying paradoxes of the government's PRISM spying program: Tech companies were forced to hand over users' data, but couldn't, even in broad terms, legally tell them that this was happening.
That changed back in January, when the US Department of Justice sent a letter to Facebook, Google, LinkedIn, Microsoft, and Yahoo, telling the corporations the exact parameters under which it could disclose information about national security. Notably absent from the list? Twitter.
So, if you're looking for an answer to the question posed in the headline up there, well, that's it: Facebook, Google, and the other tech giants have already made their deal with the government and, let's face it, it's kind of useless.
So, Twitter is suing, and it's asking for much more than the other companies settled for earlier this year.
The Letter is not a lawful means by which the government can seek to enforce their unconstitutional speech restrictions "By sitting out of the settlement last January, Twitter stuck up for the little guys—those companies receiving very few national security requests," Peter Micek, senior policy counsel at Access, a digital rights group, told me. "We hope today's announcement is a clarion call to all tech firms, big and small, to redouble their efforts to fight against mass surveillance."
The move is the latest in what has become an antagonistic relationship between the company and the government. It's often been a thorn in the government's side—refusing to participate in the PRISM surveillance program detailed by Edward Snowden and negotiating with the FBI on terms that would allow it to have greater transparency with its users about surveillance—but this is the first time that a major tech company has actually sued over the issue.
If you're playing catchup, earlier this year, the government said that tech companies could tell its customers—every six months—how many times the company received a National Security Letter or a FISA Court order. The catch is, companies can only report those numbers in increments of 1,000, for example between 0-999, between 1,000-1,999, etc.— which means the actual numbers aren't all that transparent.
Beyond that, companies can't say if they received exactly zero requests—they have to say that they received between zero and a thousand. Twitter's request specifically asks for the right to disclose whether or not the government asked for user data at all.
We hope today's announcement is a clarion call to all tech firms, big and small Though Twitter wasn't involved in the January letter, the government has told most tech companies (including Twitter) that they're bound to the terms of that letter. So, after failing to negotiate better terms with the government, it's going to court:
"Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of US government officials by providing more complete information about the limited scope of US government surveillance of Twitter user accounts," the company wrote in the lawsuit, filed in US District Court in San Francisco. "The DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional speech restrictions."
Twitter users arguably have the least private data subject to government information requests: The only thing that's really private on Twitter are direct messages. Google, on the other hand, is responsible for people's entire email accounts (among lots of other things).
But still, the company is one of the only major tech giants actively fighting the government on this issue: Other companies have been content to lobby for or support overall National Security Administration reform that would require greater transparency, Twitter is fighting for it in court.
"We applaud Twitter for going to bat for more transparency," Greg Nojeim, senior counsel at the Center for Democracy and Technology told me. "There is little doubt that more granularity in permitted company disclosures about intelligence surveillance would not compromise national security."
He's right, there: The government has long said that disclosing this sort of thing would be a major national security risk. But we've seen now that it's willing to be slightly flexible on the issue (January's letter being one example of this), with no indication that we're any less safe because of it.
The question, now, is will any other tech companies follow suit? I've reached out to spokespeople with Microsoft, Google, LinkedIn, and Yahoo—none of the companies have immediately responded; I'll update this post if they do.
Update: Here is a comment Facebook's sent me:
"We believe that while governments have an important responsibility to keep people safe, it is possible to do so while also being transparent. In January, after months of advocating for more transparency both publicly and through the courts, the U.S. government agreed to relax its limitations on what we are allowed to disclose. While this marked a significant step forward, we’ll continue to encourage Congress to take additional steps to address all of the reforms we believe are needed."