When is a government rule not a rule? Making that question difficult, when it should be simple, seems to be the government’s leading strategy in a hearing this week in Twitter Inc.’s lawsuit challenging the government’s squelching of its transparency report. Twitter wants to provide a closer look at how often federal agents are demanding private user data for surveillance, and part of its suit fights back against the government's rules on what it can and cannot publish. But the Justice Department has asked a federal judge in Oakland to dismiss portions of Twitter’s lawsuit because, it says, the rules the government cited in denying Twitter the ability to be more transparent aren’t really rules. They’re more like guidelines, the agency says. If you’re having flashbacks about ''Pirates of the Caribbean'' and a certain Captain Barbossa, you’re not alone. More on that later.

Background

Twitter filed its lawsuit in October, 2014, after it was prohibited from publishing a transparency report that would give its users a more complete picture of how many times the government—armed with orders from a secret court and the FBI—demanded customer information for national security surveillance. Specifically Twitter wanted to publish the actual aggregate number of spy agency data demands it received in the last half of 2014 and more precise information about the specific types of demands it got. The FBI said no, that information is classified. Importantly, the government said that the only way for Twitter to tell what was classified and what wasn't—in other words, the rules for what can be published and was cannot—was by reference to a letter by the Justice Department Deputy Attorney General (DAG). That letter says that companies can only express the number of information demands they received in a ranges of 0 to 250 for aggregate national security requests.

The letter was sent to five technology companies that had sued over the right to publish information about national security requests. Twitter wasn’t a party in that case, but the government told Twitter that it was nonetheless limited by rules spelled out in the DAG letter.

In its lawsuit, Twitter argues that so sharply restricting what it can say about information of global public concern is a violation of free speech rights, challenging the secrecy provisions of government Foreign Intelligence Surveillance Act (FISA) requests and FBI national security letters (NSLs). EFF filed an amicus brief in the case backing Twitter on behalf of two unnamed companies fighting the NSL gag provisions—a case before the United States Court of Appeals for the Ninth Circuit right now. The complaint also maintains that applying the DAG letter requirements to Twitter violates the Administrative Procedures Act (APA), a law that mandates federal agencies seek public comment and follow other procedures when making rules and permits courts to block regulations that were not properly promulgated.

DOJ’s Strange Argument that Rules Aren’t Actually Rules

That last claim was center stage at Wednesday's argument. The Justice Department lawyers asked U.S. District Judge Yvonne Gonzalez Rogers in Oakland to throw out the APA challenge, saying the rules set forth in the DAG letter about what companies can disclose aren’t actually rules. They’re guidelines, said DOJ attorney Steven Bressler. He used an example of a portrait covered by a curtain and said that the DAG letter, far from being rules for Twitter, was merely a description of how the government had drawn the ''curtain back in part'' on otherwise classified information to let companies describe national security-related requests. But, he claimed, the DAG letter didn’t necessarily reflect the full amount of information that the law allowed to be revealed.

Gonzalez Rogers took issue with Bressler’s characterization, saying the DAG letter to tech companies established not mere guidelines, but a "protocol" defining ''specifically what they could do and how they could do it," indicating that to her, they sound quite a lot like rules. Bressler then said the DAG letter set forth a ''safe harbor,'' but that compliance with that letter wasn’t necessarily the only way one could comply with the law. ''Isn’t that exactly what it’s been used for now?" Gonzalez Rogers asked. Twitter sought to disclose information, ''and the response was—you cannot. See the DAG letter,'' Gonzalez Rogers said.

Why does the characterization of the DAG letter as a rule or just guidance matter? If Gonzalez Rogers decides that it’s a rule created without proper procedures and transparency, she should invalidate it. But if the Justice Department succeeds in convincing the court that the letter just sets out advisory guidelines and not enforceable rules, then there is nothing for Twitter to challenge—Twitter cannot challenge a mere suggestion made by the government. But the government could continue to use the letter as a way to coerce companies to not fully disclose the number of national security requests they receive, even though the First Amendment, and the NSA law itself, may permit them to disclose more. As the mythical Captain Barbossa said in ''Pirates of the Caribbean'' about keeping one’s word under the pirates’ code, ''the code is more what you’d call guidelines than actual rules."

DOJ Says Send it to the Secret Court

In addition to the ''rules are not rules'' argument, the Justice Department also asked Gonzalez Rogers to defer ruling on many of Twitter’s claims to the Washington-based Foreign Intelligence Surveillance Court or FISC. This is the secret court that was originally designed to merely approve individual surveillance orders in national security cases. The government’s argument is that since the laws that the government is using to gag it are generally applied by the FISC in the context of specific orders, the court should make Twitter go to the FISC to ask for relief from the gags. The problem with this argument is that, for purposes of this case, there is no evidence that Twitter is actually subject to any secret FISC orders—the government wants the court to defer to the secret court because such order might exist, despite the clear law providing that the secret court does not have the exclusive right to interpret the law applicable in national security cases.

Google and four other companies filed petitions with the FISC in 2013 for permission to publish more details about national security-related requests, which led to the DAG letter. DOJ lawyer Julia Berman told Gonzalez Rogers that no other party challenging a FISC order had filed suit in district court. The judge responded by saying courts are ''on relatively new ground in these cases,'' and asked whether the FISC, a court of very limited jurisdiction that almost always sides with the government, had ever issued an opinion on broad First Amendment rights. It hadn’t, Berman said, which was the first time we’ve ever heard the government admit that the FISC has never really grappled broadly with the First Amendment issues raised by the national security gags.

DOJ Says Dismiss Because It Might Win EFF’s NSL Case

Finally, the government sought to have Twitter’s claim about the NSL gag provisions dismissed now, despite the Ninth Circuit’s pending consideration of those provisions, because the Ninth Circuit might reverse the landmark ruling that EFF obtained that the NSL statutes are unconstitutional. Twitter argued, rightly, that the court need not take any action to dismiss claims on the off chance that another decision by a sister court will be reversed.

Gonzalez Rogers didn’t say when she’ll rule on the Twitter case. We hope she’ll find that the DAG letter is a rule, it’s invalid, and that Twitter’s challenge to the government’s unconstitutional restraint on free speech and transparency can proceed.