Left: Former President Donald Trump (AP Photo/Robert F. Bukaty). Center: FILE – Special counsel Jack Smith (AP Photo/J. Scott Applewhite, File). Right: FILE – Elon Musk (AP Photo/ Benjamin Fanjoy, File)
Elon Musk’s X Corp. wants to stop the government from obtaining user data without the company being able to alert those who would have their data seized by government investigators.
The genesis of the social media giant’s beef with federal authorities comes from special counsel Jack Smith’s 2023 request for Twitter to turn over Donald Trump’s account data without the 45th president knowing about the seizure. That request was ultimately enforced by a district court in Washington, D.C. — and later upheld on appeal.
The upshot of the secretly-enacted — and court-approved — search-and-seizure warrant was keeping Trump out of the loop, legally speaking, so that he was unable to intervene and stop the data collection.
Now the company, currently called X, is petitioning the U.S. Supreme Court and asking the nine justices to use the First Amendment to make sure such requests and dragnets are never allowed again.
“In an unprecedented end-run around executive privilege, Special Counsel Jack Smith obtained a nondisclosure order preventing Twitter from notifying former President Trump of a warrant for private communications that he sent and received during his presidency,” the company’s 51-page petition for writ of certiorari filed on May 30, begins. “Although Twitter had provided these communications to the National Archives and Records Administration (NARA), the government informed Twitter and the district court that it ‘did not want to obtain data from NARA, as it would require notification [to the former President] pursuant to the Presidential Records Act.’”
In the questions presented to the nation’s high court, X frames the dispute as general battle about the assertion of privilege in the face of nondisclosure orders — which has produced a circuit split — as well as a battle more specific to the underlying dispute between X and Smith.
“These warrants may seek information protected by an array of privileges, from attorney-client to journalist-source,” the petition argues.
Some courts, when trying to determine when, and if, a prior restraint on speech is legally enforceable, use the 1965 Supreme Court case of Freedman v. Maryland, In combating the nondisclosure order, X cited the case and asked the district court to “either vacate the order or modify it to permit limited disclosure to one of the representatives whom former President Trump had designated to act on his behalf.”
In ruling against X, the D.C. Circuit Court of Appeals found “Freedman categorically does not apply to nondisclosure orders and ordered production before notice or any opportunity to assert privilege, deepening one circuit split and creating another,” according to the petition.
Currently, the Ninth Circuit sides with the D.C. Circuit — refusing to submit nondisclosure orders to First Amendment scrutiny under a prior restraint framework. Meanwhile, the Second Circuit says nondisclosure orders must comply with Freedman’s rules on prior restraint. Now, X wants the Supreme Court to settle the argument.
The company insists the issues at stake are not picayune.
“Nondisclosure orders implicate these important First Amendment concerns: They allow the government to entirely remove a weighty topic — the government’s exercise of its investigative authority — from public debate,” the petition reads.
In making its case, X says the case is an ideal vehicle to strengthen the First Amendment — by forecasting a slippery slope where federal and state prosecutors can ignore safeguards simply because data can be found “on a Twitter (or Microsoft, Google, or Amazon) server.”
“The potential consequences are far-reaching,” the company argues. “Twitter alone annually receives thousands of nondisclosure orders attached to demands for user information. Indeed, the D.C. Circuit agreed that this issue is likely to recur for Twitter. Other platforms, too, receive thousands of requests for user information — many with nondisclosure orders.”
And, X says, the government’s behavior in the present case — and others like it — was only made possible by technological advancement. The company says that such changes should not have such a result.
“Information of all kinds is stored in the cloud on third-party servers,” the petition goes on to argue. “This technological change should not upend protections for privileges. When enterprises stored communications on their own servers, prosecutors had to obtain records from those entities directly, despite the risk of disclosing the investigation to the subject.”
Additionally, in its argument specific to the Trump data incident, X argues that the reading of nondisclosure law endorsed by the Ninth and D.C. Circuits renders a key part of the Presidential Records Act (PRA) more or less inoperable.
“The implications are far-reaching,” the petition reads. “In cases involving executive privilege, which typically arise in the D.C. Circuit, the government can now circumvent the PRA and deny privilege-holders their opportunity to assert privilege by seeking communications from, and gagging, third parties. And in the tens of thousands of other cases where the government obtains nondisclosure orders, the government can invade other privileges — including attorney-client, journalist-source, and doctor-patient — without notice. Meanwhile, the First Amendment rights of service providers like Twitter to notify users in time for them to assert privileges can be irreparably injured.”
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