Whether the First Amendment requires that a prior restraint on a service provider's disclosure of aggregate data regarding national security letters and Foreign Intelligence Surveillance Act orders be subject to the procedural safeguards established in Freedman v. Maryland and evaluated under the extraordinarily exacting scrutiny applicable to prior restraints on speech

No question identified. : 13.3 of the Rules of this Court. This application is being filed at least 10 days prior to that date. See 8. Ct. R. 13.5. The jurisdiction of this Court will be invoked under 28 U.S.C. § 1254(1). A copy of the panel opinion and judgment is attached. 1. The Federal Bureau of Investigation is empowered by statute to seek information from electronic communication service providers, such as Twitter, about the users of those services. App., infra, 7. The FBI has two methods to obtain that information. First, it can issue national security letters (NSLs), pursuant to 18 U.S.C. § 2709. Second, the FBI can seek an order under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1885c. Recipients of NSLs and FISA orders typically may not disclose the receipt of (or the content of) this national security process, see, e.g., 18 U.S.C. § 2709(c)(1); 50 U.S.C. § 1805(c)(2)(B), but the prohibition on disclosure related to an individual NSL or of certain individual FISA order is subject to judicial review, see, e.g., 18 U.S.C. § 3511; 50 U.S.C. § 1881a(i)(4). Recipients are additionally prohibited by the Government from disclosing the aggregate amount of national security process they receive, including the total number of NSLs and the total number of FISA orders they receive in a specified period. To facilitate this prohibition, 50 U.S.C. § 1874 outlines complex limitations on recipients’ speech, including the restriction that recipients only may disclose the aggregate amount of national security process they receive in preset reporting bands that begin with zero and end with numbers 99 to 999 (the precise band depends on the time period and the kind and combination of NSLs and FISA orders being disclosed). For example, if an entity hypothetically received three FISA orders and two NSLs in a year, it may disclose only that it received such process between zero and 99 times in that year. There is no federal statute that provides for judicial review of these restrictions. This case addresses the Government’s prior restraint on Twitter’s speech seeking to disclose the aggregate amount of national security process that it received. As part of its commitment to user privacy, Twitter releases periodic transparency reports that describe the volume of legal process it receives from governments around the world. In April 2014, at the U.S. Government’s insistence, Twitter submitted a draft transparency report for pre-publication review. App., infra, 14. The Government deemed substantial portions of the report—which did no more than reflect Twitter’s own experiences as the recipient of legal process—to be classified and prohibited Twitter from publishing it without redactions. App., infra, 15-16. There is no requirement that the Government periodically review this speech restriction to determine whether it remains necessary. In October 2014, Twitter filed this lawsuit, asserting that the aggregate nondisclosure requirement violates the First Amendment in two ways. First, Twitter maintained that the restriction is a prior restraint on speech and therefore should be subject to the procedural requirements outlined in Freedman v. Maryland, 380 U.S. 51 (1965). Second, Twitter contended that the restriction does not satisfy the extraordinarily exacting scrutiny applied to prior restraints. After initially denying the Government’s motion for summary judgment, the district court reconsidered its order and granted the motion. See Twitter, Inc. v. Barr, 445 F. Supp. 3d 295, 305 (N.D. Cal. 2020). The Ninth Circuit affirmed. Relying largely on this Court’s decisions in Seattle Times Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), and Butterworth v. Smith, 494 U.S. 624 (1990), the Ninth Circuit determined that Freedman “has not been extended to long-accepted confidentiality restrictions concerning governmentprovided information” and that Freedman’s protections are unnecessary in this context because the Government’s s