• by Wendy Davis  @wendyndavis, January 8, 2024

The Supreme Court on Monday rejected X Corp's request to intervene in a 10-year-old battle with the federal government over the company's ability to disclose the number of classified requests it receives for data about users.

As is customary, the court didn't give a reason for its move.

The Supreme Court's refusal to hear the case ends a dispute dating to 2014, when X challenged the FBI's restrictions on a proposed “transparency report” that would have revealed information about the number of classified requests for information about particular users. Those requests either took the form of National Security Letters or orders issued under the Foreign Intelligence Surveillance Act.

Shortly before X sued, the federal government and six other tech companies -- Apple, Google, Microsoft, Yahoo, Facebook and LinkedIn -- reached an agreement that allowed those companies to disclose broad information about the number of requests for user data, within bands of 1,000. For instance, the companies agreed to say that they received between 0 and 999 National Security Letters within a six-month time period, as opposed to stating the precise number.

X, which didn't agree to those settlement terms, argued that the FBI's restrictions on the proposed transparency report amounted to an unconstitutional prior restraint on speech.

“Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of U.S. government officials by providing more complete information about the limited scope of U.S. government surveillance of Twitter user accounts,” the platform argued in a motion for a declaratory judgment filed in U.S. District Court for the Northern District of California.

A trial judge and the 9th Circuit Court of Appeals ruled against X.

“Although we acknowledge Twitter’s desire to speak on matters of public concern, after a thorough review of the classified and unclassified record, we conclude that the government’s restriction on Twitter’s speech is narrowly tailored in support of a compelling government interest: our nation’s security,” a 9th Circuit panel wrote in a ruling issued in March 2023.

X then sought review by the Supreme Court.

The company's request was backed by the digital rights group Electronic Frontier Foundation, which argued in a friend-of-the-court brief that the government shouldn't have been able to censor X's report before it was published.