PPSA Asks Supreme Court to Hear X Corp.’s Constitutional Case Against Surveillance Gag Orders

​PPSA announced today the filing of an amicus brief asking the U.S. Supreme Court to take up a case in which X Corp., formerly Twitter, objects to surveillance and gag orders that violate the First Amendment and pose a threat to the Fourth and Sixth Amendments as well.
 
When many consumers think of their digital privacy, they think first of what’s on their computers and shared with others by text or email. But the complex, self-regulating network that is the internet is not so simple. Our online searches, texts, images, and emails – including sensitive, personal information about health, mental health, romances, and finances – are backed up on the “cloud,” including data centers like X Corp.’s that distribute storage and computing capacity.
 
Therein lies the greatest vulnerability for government snooping. The growth of data centers is prolific, rising from 2,600 to 5,300 such centers in 2024. And with it, so have government demands for our data.
 
When federal agencies – often without a warrant – seek to access Americans’ personal data, more often than not they go to the companies that store the data in places like these data centers. For years, this power involved large social media and telecom companies. The power of the government to extract data, already robust, increased exponentially with the reauthorization of FISA Section 702 in April, which included what many call the “Make Everyone a Spy Act.” This provision defines an electronic communication service provider as virtually any company that merely has access to equipment, like Wi-Fi and routers, that is used to transmit or store electronic communications.
 
On top of that, the government then slaps the data center or service provider with a Non-Disclosure Order (NDO), a gag order that prevents the company from informing customers that their private information has been reviewed. One such company – X Corp. – has been pressing a constitutional challenge against this practice regarding a government demand for former President Trump’s account data. PPSA has joined in an amicus brief supporting X’s bid for certiorari, asking the Court to consider the constitutional objections to government conscription of companies that host consumers’ data as adjunct spies, while restraining their ability to speak out on this conscription.
 
In the case of X, the government has seized the company’s records on customer communications and then slapped the company with an NDO to force it to shut up about it. The government claims this secrecy is needed to protect the investigation, even though the government itself has already publicized the details of its investigation. Whatever you think of Donald Trump, this is an Orwellian practice.
 
PPSA’s amicus brief informed the Court that the gag order “makes a mockery of the First Amendment’s longstanding precedent governing prior restraints. And it will only become more frequent as third-party cloud storage becomes increasingly common for everything from business records to personal files to communications …”
 
The brief informs the Court: “NDOs can be used to undermine other constitutionally protected rights” beyond the First Amendment. These rights include the short-circuiting of Fourth Amendment rights against warrantless searches and Sixth Amendment rights to a public trial in which a defendant can know the evidence against him.
 
Partial solutions to these short-comings are winding their way through the legislative process. Sen. Mark Warner, Chairman of the Senate Intelligence Committee, introduced legislation to narrow the scope of businesses covered by the new, almost-universal dragooning of businesses large and small as government spies – though House Intelligence Chairman Mike Turner is opposing that reasonable provision. Last year, the House passed the NDO Fairness Act, which requires judicial review and limited disclosures for these restraints on speech and privacy.
 
As partial solutions wend their way through Congress, this case presents a number of well-defined concerns best defined by the Supreme Court.