Judge Rejected Ban On TikTok Because Trump's DOJ Can't Show Any Real National Security Threat

from the because-of-course dept

Earlier today we wrote about a judge blocking Trump's TikTok ban, though noting that the full reasoning why was under seal. Right about the time that post went up, the details were unsealed. Unlike the WeChat injunction which was done on 1st Amendment grounds, the injunction here doesn't touch the 1st Amendment questions and just says that the Trump White House (even with presenting evidence under seal) totally failed to substantiate the national security threat of TikTok, even under the IEEPA (International Emergency Economic Powers Act) which grants the President tragically and dangerously broad powers to claim a "national emergency" to block international commerce.

As noted above, IEEPA contains a broad grant of authority to declare national emergencies and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to the national security of the United States. But IEEPA also contains two express limitations relevant here: the “authority granted to the President . . . does not include the authority to regulate or prohibit, directly or indirectly” either (a) the importation or exportation of “information or informational materials”; or (b) “personal communication[s], which do[] not involve a transfer of anything of value.”

We pointed out this clause when Trump's executive order was first issued, noting that it likely doomed it, so it's good to see the judge highlight it. The DOJ pushed back on this, saying that since it was just prohibiting certain "business-to-business economic transactions," it wasn't actually prohibiting the movement of information. Incredibly the DOJ also claimed it had not taken any action concerning "TikTok users themselves." The judge more or less responds with a sarcastic "come on, you can't be serious."

But that argument fails to grapple with IEEPA’s text. Section 1702(b)(3) provides that IEEPA’s grant of authority “does not include the authority to regulate or prohibit, directly or indirectly,” the cross-border transmission of “information and informational materials.”... The content exchanged by TikTok users constitutes “information and informational materials”; indeed, much of that content appears to be (or to be analogous to) “publications, films, . . . photographs, . . . artworks, . . . and news wire feeds.” Id. And the purpose and effect of the Secretary’s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who can comment on the platform and have their personal data on TikTok.... At a minimum, then, the Secretary’s prohibitions “indirectly” “regulate” the transmission of “informational materials” by U.S. persons.

Moreover, Section 1702(b)(3)’s express limitation applies to “commercial” informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of “informational materials,” then there would have been no reason for Congress to include the word “commercial” when defining the scope of § 1702(b)(3)’s limitation.....

To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout) is primarily a conduit of “informational materials.” In that sense, it is (among other things) a “medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials.

From there, the DOJ tried to argue that the Espionage Act (which I and many others believe is already unconstitutional) when combined with the IEEPA can be used to block certain information under the IEEPA. But again, the judge says that's not how any of this works, especially because kids dancing on TikTok are not violating the Espionage Act.

Finally, the government proposes a novel reading of the Espionage Act.... Section 1702(b)(3) contains an exception to its exception, so to speak, and permits the regulation of informational materials, “with respect to . . .acts . . . prohibited by chapter 37 of Title 18.” That Title authorizes life imprisonment or the death penalty for those who share U.S. defense secrets (especially classified government materials) with foreign adversaries.... But it is not plausible that the films, photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning of the Espionage Act.

At the end of the order, the Court also addresses the national security question while looking at the "balance of equities" in determining whether or not an injunction against the ban was appropriate. And it notes that, despite the DOJ presenting evidence in sealed filings, it wasn't enough to substantiate the claims that TikTok is a national security threat.

The government argues that a preliminary injunction would displace and frustrate the President’s decision on how to best address a national security threat—an area where the courts typically defer to the President’s judgment.... The Court must, of course, give deference to the Executive Branch’s “evaluation of the facts” and the “sensitive and weighty interests of national security and foreign affairs,” Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010), including “the timing of those . . . decisions.” Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 74 n.28 (D.D.C. 2002). Here, the government has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial.

As for why the court only granted the injunction for last night's ban, and not the November 12th more complete ban, the court basically says "we have time to deal with that one later," but presents no suggestion that it would allow that ban to move forward either.

... the only truly imminent and immediate harm that Plaintiffs will suffer absent an injunction relates to paragraph 1 of the Commerce Identification. The Court therefore agrees with the government that injunctive relief should be limited to the prohibitions contained in paragraph 1, and that the other paragraphs of the Commerce Identification should appropriately be the subject of separate proceedings, which can be briefed and decided (potentially through cross-motions for summary judgment, and on a full administrative record) prior to those restrictions’ effective date of November 12.

So, the WeChat ban gets blocked on 1st Amendment grounds, and the TikTok ban gets blocked because the IEEPA doesn't let the President do what he wants to do, and all of this is just performative nonsense anyway, wasting two separate courtrooms' time, not to mention significant concerns among many different companies which would have had to deal with the fallout of a ban. All because Trump is mad at kids on TikTok who don't like him.

Still, it does seem notable that even under seal that government couldn't present any real evidence to the court of the threat of TikTok being owned by a Chinese firm. As if we didn't already have enough evidence about the fact that this entire debacle was a made up culture war, rather than a serious concern. It remains incredible to me that otherwise serious people jumped on board with Trump's decision to ban these apps.

Filed Under: china, doj, donald trump, executive order, ieepa, injunction, national security
Companies: bytedance, tiktok

China Calls TikTok Deal 'Extortion'; Says It Will Not Approve

from the back-to-the-drawing-board-folks dept

As was hinted at in our previous post on China's response to Trump forcing TikTok to... not actually be sold to Oracle, but to force TikTok into signing a hosting deal to store data in the US, it appears that China is going to do some posturing of its own. The Chinese government has said that it will block the deal which it calls "extortion."

And, to be fair, the Chinese government has a point. It was extortionate. Trump told ByteDance it had to sell or TikTok would be blocked in the US. And while it didn't actually sell TikTok, it was forced at gunpoint into a deal that it appears it would not have made otherwise. And, of course, China holds all the leverage here because Trump is a ridiculously bad dealmaker. His "plan" flopped in that he didn't force a sale, and then to save face (and to help out one of his big donors) he gave the thumbs up to the Oracle non-purchase/hosting contract. It was already a weak move that everyone other than the dumbest of Trump's fans knows is a weak move by a President who swings the executive power bat like a toddler who just learned how to smash things.

So, of course China is going to move for a better deal. In the Chinese state-controlled English language outlet China Daily, the the Chinese government goes in for the kill.

What the United States has done to TikTok is almost the same as a gangster forcing an unreasonable and unfair business deal on a legitimate company.

It (correctly) calls out that the "national security" excuse that Trump used is an obvious fig leaf and hogwash for his real motives. Of course, it claims that it was really about the US wanting to kill foreign competition, when that's unlikely to be the case. It's got more to do with various culture wars the President feels like fighting, rather than actually leading in the midst of a pandemic.

The editorial claims that even with this half-assed Oracle deal, it's a move towards the US using mafioso techniques to gain control over TikTok, and says that China has no reason to approve the deal on its end.

It is not the first time the US has played such dirty tricks to bully foreign companies in order to either destroy them or take them over.

China has no reason to give the green light to such a deal, which is dirty and unfair and based on bullying and extortion. If the US gets its way, it will continue to do the same with other foreign companies. Giving in to the unreasonable demands of the US would mean the doom of the Chinese company ByteDance.

Again, this is almost certainly just more posturing. And, ridiculously, what's it's likely to come down to is some sort of stupid diplomatic discussion between the US State Department and counterparts in China to come up with something that will make the deal work -- which means it will almost be an already worse deal than it currently is, with no redeeming points whatsoever, and what little Trump "got" out of the deal will not just be whittled down to nothing, but probably less than nothing.

Filed Under: china, deals, donald trump, extortion, national security
Companies: bytedance, oracle, tiktok

Details Of Unconstitutional WeChat/TikTok Ban Actually Would Make Users Of Those Apps Less Secure, Not More

from the what-the-fuck-is-this? dept

This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It's possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.

The details reinforce two key points:

1. This is way unconstitutional and should be offensive to any 1st Amendment/free speech supporter.
2. The excuses about national security are utter and total garbage, because this would actually make users of those apps significantly less secure.

So, great. We have some applications bans, premised on national security, that are unconstitutional piles of garbage that make people less secure, and the only possible path out is through a grifty deal, pushed deliberately to a large donor to the President, who has said multiple times he's hoping for a kickback on the deal. We're witnessing an astounding bit of corruption right here.

Here's how the "ban" will work. First up, both apps get banned from all US app stores. The following is listed as "prohibited."

Any provision of service to distribute or maintain the WeChat or TikTok mobile applications, constituent code, or application updates through an online mobile application store in the U.S.

That's basically saying: "Apple and Google can no longer put those apps in their app stores." There are 1st Amendment concerns here, in that the executive branch is telling software companies what code they can or cannot host. While the IEEPA law under which this order is being made is broad, this seems ripe for a huge 1st Amendment challenge. The President should not be able to simply ban code from app stores based on an unsubstantiated claim of "national security."

Second, not only is this all based on unsubstantiated claims of national security, the very text proves how that's bullshit. The fact that these app stores can no longer issue updates means that people who have the apps currently can continue using them, but if there's a security update (say to patch a vulnerability) users can no longer patch those apps. If the goal of this ban is to "protect national security," everything here is exactly the opposite of that. Users will still have the app, but are unable to protect themselves and can only keep using the app if they accept the obsolete and increasingly less secure version of it.

In other words: the whole "national security" claim is a total lie, because the way the ban is implemented gives Americans less security. That sure is one way to fight back against supposed Chinese surveillance through these apps. If it's even true that China is spying on people via apps, they're now in a "don't throw me in the briar patch" situation -- since the US government is forcing these apps to be less secure and to expose even more data to whoever has it.

Another part of the ban that raises significant 1st Amendment issues is that it prohbits:

Any utilization of the mobile application’s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the U.S.

Translating that: it means that no US developer can use WeChat or TikTok's APIs or build software using any of their code. That's deliberately interfereing with the speech of Americans. Leaving aside the issue of whether or not banning apps that allow for communications is a 1st Amendment issue. Leaving aside the issue of whether or not banning apps at all is a 1st Amendment issue. This goes even further: it says that US-based software developers cannot write the code they want. That's a huge 1st Amendment issue.

I discussed this a few months ago but the Supreme Court has already said that code is speech in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, while it's not the Supreme Court, the 2nd Circuit has been even more direct about code being speech protected by the 1st Amendment in the the Universal v. Corley case (about whether or not you could publish code that breaks DRM):

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone [*446] chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The "object code" version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language.

Later in that ruling:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions "speech" for purposes of the First Amendment.

Based on all of that, it is difficult to see how this broad ban can possibly stand up to 1st Amendment scrutiny on multiple levels. The banning of US developers coding using these companies APIs is a 1st Amendment violation. The ban on US companies hosting their code is a 1st Amendment violation. The ban on apps used for speech is likely a 1st Amendment violation (on par with breaking up printing presses). So, these bans appear to violate the 1st Amendment in multiple different ways.

And for what? The claim is "to protect national security." We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase. But now with the details coming out, in which it would make the data of US users of these services even less secure by banning updates, we have even more evidence that the national security claims are joke.

And thus, the bans are likely unconstitutional on multiple different grounds, have no national security purpose based on multiple different problems with the deal, and don't seem to do anything other than potentially put a lucrative business deal in the pocket of a top Trump supporter. How is there anyone out there who thinks this is a reasonable thing?

Filed Under: 1st amendment, apis, bans, china, code, commerce department, donald trump, executive order, ieepa, national security, security, updates
Companies: apple, bytedance, google, oracle, tencent, tiktok, wechat

Oracle Doesn't Buy TikTok, But Gets A Lucrative Hosting Deal, And Trump & Friends Will Pretend This Means Something

from the art-of-the-grift dept

The TikTok saga, which was insanely stupid to begin with, kicked into overdrive last month when President Trump issued a blatantly unconstitutional executive order that was designed to force ByteDance to sell TikTok to an American company. We had all sorts of questions about this, but effectively ByteDance had until this week to find a buyer. While Microsoft was rumored for a while, late last night Microsoft announced that its proposal had been rejected and the only competitor left standing was... wait for it... Oracle. This led many to conclude that Oracle was buying TikTok. That is not the case. But hold on, we'll get there.

There was one other serious bidder: Walmart. Last night the company claimed it was still interested in buying TikTok, but the White House rejected that plan, because it would have made it totally obvious that the "national security" pretense for demanding the sale was obvious bullshit. Nope, the White House said: it has to be sold to a "tech" company, so that the White House can stand by its totally unsubstantiated by evidence claims that TikTok's dancing teens represented a national security threat.

So, with Walmart blocked, and Microsoft's deal not accepted, that left Oracle. But immediately the descriptions of Oracle's involvement were... weird. They very clearly did not say anything about "buying" TikTok. Instead, Oracle put out a very short press release saying that it will "serve as the trusted technology provider" to TikTok. That's not how you describe a sale.

This is a hosting deal.

Oracle will just host TikTok on its wannabe, way-behind-the-competition, cloud platform. And Trump and his cult-like supporters will pretend this actually accomplishes something. Oracle's executive suite has long been vocal Trump supporters, so this basically dumps a giant hosting contract into Oracle's lap. ByteDance will effectively still own TikTok, and Trump will pretend he's done something. For what it's worth, this is the second big Oracle cloud deal done in the last few months, with the previous one being with videoconferencing company Zoom.

As Russell Brandom over at the Verge notes, this deal "accomplished nothing." ByteDance still owns TikTok (and, according to reports, retains full control over TikTok's algorithm). As former Yahoo and Facebook Chief Security Officer Alex Stamos points out, literally none of the concerns people have raised about TikTok (most of which were bogus in the first place) are solved by an Oracle hosting deal:

As Stamos points out, accepting this deal would show that it's nothing but "pure grift," basically dumping a forced contract into Oracle's lap, a company which (again) has had an executive licking Trump's boots since day one.

And people can't even truly argue that Oracle will somehow make whatever little "private" data there is on TikTok "more secure." It's not like it was just months ago that an Oracle-owned subsidiary, BlueKai, leaked data that tracked users all over the web, exposing billions of records.

In other words, the whole thing was a joke. Like so much of this administration it was performative nonsense by Trump, who was mad that some kids made him look foolish on TikTok, combined with anti-Chinese racism, to push for a deal he had no legal right to push for, resulting in a weird scramble that doesn't accomplish what he wanted, but does shift a bunch of money to some of his vocal and wealthy supporters. The "Art of the Grift."

Filed Under: china, corruption, donald trump, grift, hosting, larry ellison, national security, security
Companies: bytedance, microsoft, oracle, tiktok

White House Supposedly Blocked Walmart From Buying Tiktok Because It Would Prove Its Rationale For Forcing A Deal Was Bullshit

from the look-at-that dept

Among the rumors of who might take over TikTok (which the Trump administration is forcing ByteDance to sell) was the surprise entrant of Walmart. While we're still waiting for the official decision, a report last week noted that the White House stepped in to tell Walmart that couldn't happen if Walmart was to be the lead buyer:

The deal structure would have had Walmart as the lead buyer, with SoftBank and Alphabet acquiring minority stakes. One or two other minority holders held talks to join the consortium, two of the people said.

Walmart wanted to be the exclusive e-commerce and payments provider for TikTok and have access to user data to enhance those capabilities, one of the people said. But the people said the U.S. government wanted the lead buyer of TikTok to be a technology company because that would better fit with its national-security rationale for forcing Chinese owner ByteDance to divest TikTok’s U.S. operations.

This is why the newer rumor is that Microsoft would be the lead, in combination with Walmart. There's no way the DOJ would allow Google to be the lead buyer for TikTok. But here we have it: proof that the White House knows its own rationale for forcing the sale of TikTok is total and complete bullshit, and it's worried that one potential buyer might underline that fact.

Of course, this raises a shit ton of questions. Going back to the original issue, why is the White House even forcing this sale in the first place? The fact that it's now effectively admitting that the "national security" rationale was bogus by telling Walmart it can't be the lead is really revealing. Not that anyone seems willing to say or do anything about this. But now it does seem abundantly clear that even the White House knows that its rationale for forcing a deal is a fraud. Then of course, why is the White House even involved in the deal at this stage, telling Walmart what it can or can't do? None of this makes any sense, and all of it is not how any of this is supposed to work.

But, of course, the anti-TikTok sentiment is so strong among many that no one's going to point out that even the White House doesn't seem to believe its own reason for forcing the deal.

Filed Under: china, national security, social media, white house
Companies: tiktok, walmart

ICE The Latest Agency To Be Blessed By The Administration With The 'Security Agency' Accountability Shield

from the secure-from-the-public's-interest dept

ICE has joined Customs and Border Protection as a full-fledged security agency. ICE, like the CBP, has been hoping to upgrade from customs enforcement to NatSec machinery for several years now, possibly with an eye on backdoor-searching all the communications and data the NSA hoovers up.

CBP moved another step closer to becoming part of the Intelligence Community earlier this year when its employees were given the Office of Personnel Management's prized "security agency" designation. This means identifying information about CBP employees will be almost impossible to obtain through FOIA requests. Since CBP officers are now security agency officers, America would apparently be less secure if the public were able to find out which officers in particular are doing bad things while being paid US tax dollars.

Ken Klippenstein, who broke the news about the CBP's new accountability shield, has obtained another leaked memo. This one says ICE is now playing on the same opaque field as its cohort in immigration enforcement.

On June 11, the administration classified ICE as a “Security Agency,” according to a memo signed by [ICE chief Matthew] Albence and dated June 26. This new designation puts ICE employees in the same category as high-level intelligence officials, and blocks from disclosure information that is typically public, such as name, job title, and salary. The memo was provided to The Nation by an ICE official on condition of anonymity. The memo states:

I am pleased to announce that on June 11, 2020, the Office of Personnel Management (OPM) approved ICE’s request to be identified as a “security/sensitive” agency for Freedom of Information Act (FOIA) purposes. This designation will ensure that OPM withholds all relevant personally identifiable information (PII) of all ICE personnel where it processes FOIA requests moving forward, just as it does for other law enforcement agencies and federal prosecutors.

According to Klippenstein, the memo written by Albence refers to this distancing of ICE from the public it serves as a "tremendous achievement." But it's not really clear what's been achieved here, other than making ICE as insulated from accountability as other "security" agencies like the FBI and Secret Service. Whatever the internal rationalizations behind the decision, the implications for the public are clear: ICE can now withhold all information about its employees under FOIA Exemption 6.

The memo justifies ICE's upgrade to "security agency" by citing nothing at all.

The memo claims the classification is necessary to protect its staff from increased threats in recent years, saying:

The increase in threats, intimidation, and doxing directed at ICE personnel in recent years underscored the need for this designation. Numerous examples of the harassment and threats you have had to endure were used to impress upon OPM that the ongoing disclosure of our employees’ identifying information under FOIA was simply unacceptable.

The memo provides no examples.

We, on the other hand, can provide plenty of examples of abuses committed by ICE employees, none of whom should be given an OPM-ordained accountability vacuum in which to operate. This ranges from deporting journalists for reporting on misconduct by ICE agents to engaging in abusive actions on almost a daily basis by ignoring the "worst of worst" directive in favor of cramming as many immigrants as possible into detention centers. Now, officers and agents participating in day-to-day misconduct have been given official assurance their misdeeds won't be linked to their names.

Filed Under: cbp, foia, ice, law enforcement, national security, security agency, transparency

Federal Court Dismisses Twitter's Long-Running Lawsuit Over NSL Reporting

from the tiny-win-in-the-margins dept

All the way back in 2014, Twitter sued the DOJ over its National Security Letter reporting restrictions. NSLs are the FBI's weapon of choice in all sorts of investigations. And they almost exclusively come packaged with lifetime bans on discussing them publicly or disclosing the government's request for info to NSL targets.

Things changed a little with the passage of the USA Freedom Act and a couple of related court decisions. The DOJ is now required to periodically review NSLs to see if the ongoing silence is justified. The Act also finally provided a way for companies to challenge gag orders, which has resulted in a somewhat steady stream of published NSLs.

What's still forbidden is publishing an actual count of NSLs a company has received. Supposedly the security of the nation would be threatened if Twitter said it had received 118 NSLs last year, rather than "0-499." The reforms in the USA Freedom Act didn't change that aspect of NSL reporting and the government still argues any accurate reporting would allow the terrorists to win… or somehow avoid being targeted by an NSL.

Twitter argued the publication of an accurate number was protected speech. The government, of course, argued the opposite. The federal judge handling the case ruled that accurate reporting wasn't protected speech back in 2016, but did say Twitter could move forward with its challenge of the classification of this data.

Roughly a year later, the court changed its mind. The government's motion to dismiss was denied by the court, which said it needed to come up with better arguments if it wanted to escape Twitter's lawsuit. The court pointed out that denying Twitter the right to accurately report NSLs was a content-based restriction that couldn't be justified by the government's bare bones assertions about national security.

Nearly three years later, we're back to where we were four years ago. The court has dismissed Twitter's lawsuit, denying its attempt to escape the "banding" restrictions that limit the transparency it can provide to its users. (via Politico)

The decision [PDF] -- which ends nearly six years of litigation -- says the court believes the things the government says about detailed NSL reporting. Since these declarations tend to be delivered in ex parte hearings and/or under seal, we have to believe them, too. Actual numbers are more dangerous than vague numbers.

The declarations explain the gravity of the risks inherent in disclosure of the information that the Government has prohibited Twitter from stating in its Draft Transparency Report, including a sufficiently specific explanation of the reasons disclosure of mere aggregate numbers, even years after the relevant time period in the Draft Transparency Report, could be expected to give rise to grave or imminent harm to the national security. The Court finds that the declarations contain sufficient factual detail to justify the Government’s classification of the aggregate information in Twitter’s 2014 Draft Transparency Report on the grounds that the information would be likely to lead to grave or imminent harm to the national security, and that no more narrow tailoring of the restrictions can be made.

And that's it. The restrictions stay in place and recipients of NSLs will only be able to deliver government-approved information about them. The good news is there's a bit of a loophole -- one the court discusses in a footnote. The DOJ may want to restrict almost all NSL reporting, but the court isn't convinced companies can be limited to using the DOJ-approved "bands" only.

The [complaint] alleges a facial constitutional challenge to FISA’s secrecy provisions to the extent they categorically prohibit the reporting of aggregate data. The Court does not find that they do so restrict the aggregate data at issue here. The Government has, in part, argued that FISA’s statutory nondisclosure provisions, applicable to the existence and contents of individual orders, logically prohibit reporting of aggregate data about the number of such orders. The Court has never found the Government’s logic persuasive on this point. The requirement not to disclose a particular order is completely distinct from disclosing the aggregate number of orders.

This seems to say companies can accurately report the total number of NSLs they've received, rather than using the far more vague 0-499, etc. reporting they've been limited to. It's not a lot but it's an improvement.

Filed Under: fisa warrants, national security, nsl reporting, transparency, transparency reports
Companies: twitter