Twitter, Inc. v. Holder et al

Filing 281

MOTION that the Court Discharge the Order to Show Cause and Deny Plaintiffs Request for Access to the Classified Steinbach Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney Generals Assertion of the State Secrets Privilege , MOTION to Dismiss filed by William P. Barr, Federal Bureau of Investigation, United States Department of Justice. Responses due by 3/29/2019. Replies due by 4/5/2019. (Attachments: # 1 Exhibit A, Declaration of the Attorney General of the United States, # 2 Exhibit B, Declaration of the Acting Executive Assistant Director of the FBI, # 3 Proposed Order, # 4 Proposed Order Alternative Proposed Order)(Heiman, Julia) (Filed on 3/15/2019)

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 1 of 31

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JOSEPH H. HUNT
Assistant Attorney General
DAVID L. ANDERSON
United States Attorney
ANTHONY J. COPPOLINO
Deputy Branch Director
JULIA A. HEIMAN
Senior Counsel
CHRISTOPHER HEALY
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
__________________________________________
)
TWITTER, INC.,
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Case No. 14-cv-4480-YGR
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Plaintiff,
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DEFENDANTS’ REQUEST
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THAT THE COURT
v.
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DISCHARGE THE ORDER TO
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SHOW CAUSE AND DENY
WILLIAM P. BARR, Attorney
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PLAINTIFF’S REQUEST FOR
General of the United States, et al.,
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ACCESS TO THE CLASSIFIED
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STEINBACH DECLARATION,
Defendants.
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OR, IN THE ALTERNATIVE,
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MOTION TO DISMISS IN
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LIGHT OF THE ATTORNEY
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GENERAL’S ASSERTION OF
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THE STATE SECRETS
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PRIVILEGE
)
__________________________________________)
Hon. Yvonne Gonzalez Rogers

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 2 of 31

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NOTICE OF MOTION

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For the reasons set forth in Defendants’ accompanying Memorandum of Points and

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Authorities, Defendants respectfully request that the Court discharge the Order to Show Cause,

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see ECF No. 261, and deny Plaintiff’s request for access to the Classified Steinbach Declaration.

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PLEASE TAKE NOTICE that, in the alternative, Defendants seek dismissal of the

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Plaintiff’s Second Amended Complaint for the reasons set forth in Defendants’ accompanying

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Memorandum of Points and Authorities. Consistent with the Court’s February 14, 2019, Order

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that directs the parties to submit jointly a schedule for further proceedings based on the

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Government’s decision regarding an assertion of the state secrets privilege, see ECF No. 272, the

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Defendants will confer with Plaintiff and intend, on March 19, 2019, to submit a proposed

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schedule for further briefing and oral argument on this motion.

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Dated: March 15, 2019

Respectfully submitted,

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JOSEPH H. HUNT
Assistant Attorney General
DAVID L. ANDERSON
United States Attorney
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ Julia A. Heiman
JULIA A. HEIMAN, Bar No. 241415
Senior Counsel
CHRISTOPHER HEALY
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
[e-mail]
Attorneys for Defendants

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 3 of 31

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TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................................................. 1

II.

BACKGROUND ................................................................................................................... 5

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III. CATEGORIES OF INFORMATION SUBJECT TO THE ATTORNEY GENERAL’S
ASSERTION OF PRIVILEGE ............................................................................................ 10
IV. ARGUMENT ....................................................................................................................... 10

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A. The Attorney General has Properly Invoked the State Secrets Privilege to Protect the
Sensitive National Security Information in the Classified Steinbach Declaration ............. 12

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1. Disclosure of the Information at Issue Reasonably Could Be Expected to Result in
Significant Harm to the National Security ........................................................................ 14

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2. Disclosure to Cleared Counsel Would Create the Risks of Harm Discussed
Herein ................................................................................................................................ 17

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3. The States Secrets Privilege Has Been Asserted Only to the Extent Necessary in this
Matter ................................................................................................................................ 21

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4. The Proper Invocation of Privilege Over These Categories of Information Renders Them
Unavailable for Any Purpose in this Litigation. ............................................................... 22

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B.

Because this Case Cannot Be Litigated Without the Privileged Evidence, Binding
Precedent Requires that Plaintiff’s Claims Be Dismissed.................................................. 23

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V.

CONCLUSION .................................................................................................................... 25

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 4 of 31

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TABLE OF AUTHORITIES
Cases
Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Ariz.,
881 F.2d 1486 (9th Cir. 1989) ................................................................................................... 22
Al-Haramain Islamic Found., Inc. v. Bush,
507 F.3d 1190 (9th Cir. 2007) ............................................................................................ passim
Al-Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury,
686 F.3d 965 (9th Cir. 2012) ..................................................................................................... 17
CIA v. Sims,
471 U.S. 159 (1985) ................................................................................................................... 13
Dep’t of Navy v. Egan,
484 U.S. 518 (1988) ............................................................................................................... 3, 18
Dorfmont v. Brown,
913 F.2d 1399 (9th Cir. 1990) ............................................................................................... 3, 18
El-Masri v. United States,
479 F.3d 296 (4th Cir. 2007) ..................................................................................................... 17

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Ellsberg v. Mitchell,
709 F.2d 51 (D.C. Cir. 1983) ..................................................................................................... 17
Farnsworth Cannon, Inc. v. Grimes,
635 F.2d 268 (4th Cir. 1980) ..................................................................................................... 25
Fitzgerald v. Penthouse Int’l Ltd.,
776 F.2d 1236 (4th Cir. 1985) ................................................................................................... 25
Halkin v. Helms,
598 F.2d 1 (D.C. Cir. 1978) ................................................................................................. 16, 17

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Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ....................................................................................................................... 13
In re Copley Press, Inc.,
518 F.3d 1022 (9th Cir. 2008) ................................................................................................... 22
Kasza v. Browner,
133 F.3d 1159 (9th Cir. 1998) ......................................................................................... 4, 12, 23
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 5 of 31

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Mohamed v. Jeppesen Dataplan, Inc.,
614 F.3d 1070 (9th Cir. 2010) ............................................................................................ passim
Snepp v. United States,
444 U.S. 507 (1980) ..................................................................................................................... 1
Sterling v. Tenet,
416 F.3d 338 (4th Cir. 2005) ..................................................................................................... 17
Stillman v. CIA,
319 F.3d 546 (D.C. Cir. 2003) ............................................................................................ passim
Tilden v. Tenet,
140 F. Supp. 2d 623 (E.D. Va. 2000) ........................................................................................ 17
United States v. Reynolds,
345 U.S. 1 (1953) ..................................................................................................... 10, 11, 12, 23

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Wikimedia Found. v. NSA,
2018 WL 3973016 (D. Md. Aug. 20, 2018) .............................................................................. 16

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Other Authorities

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Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) .......................................................... 18

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 6 of 31

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
At the heart of this case is Plaintiff Twitter, Inc.’s challenge to the Government’s

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determination that Plaintiff may not lawfully publish certain information about the extent to

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which it has received national security legal process from the Government. See Second Am.

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Compl., ECF No. 114, generally. Multiple Original Classification Authorities have determined

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that the information Twitter seeks to publish is properly classified. See Sept. 9, 2014 Letter

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From J. Baker to M. Sussmann, ECF No. 1-1, at 1; Unclassified Decl. of Executive Assistant

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Director (“EAD”) Steinbach, ECF No. 147-1, ¶ 29; Aug. 28, 2017 Decl. of EAD Ghattas, ECF

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No. 179-1, ¶ 6; Unclassified Decl. of Acting EAD McGarrity, attached as Exhibit B hereto

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(“Unclassified McGarrity Decl.”), ¶¶ 19, 22. From the outset of this case, the Government has

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urged the Court to proceed as courts have done in an analogous body of case law in federal

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jurisprudence where a party subject to a nondisclosure obligation claims a First Amendment

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right to publish information it has received from the Government: by examining ex parte, in

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camera the Government’s classified explanation of the harm to national security that reasonably

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could be expected to result from the proposed disclosure. See, e.g., Stillman v. CIA, 319 F.3d

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546 (D.C. Cir. 2003). This is an appropriate and sensible framework for resolving the key

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question at issue in this case: whether Plaintiff has a First Amendment right to publish

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information that the Government has determined is properly classified and the disclosure of

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which reasonably could be expected to cause serious damage to national security. See Snepp v.

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United States, 444 U.S. 507, 509-510 & n.3 (1980) (per curiam) (person subject to secrecy

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obligation has no First Amendment right to publish classified information). The resolution of

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that question should be straightforward: if the Government shows that the information at issue is

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properly classified, including by establishing the risk of harm to national security that reasonably

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could be expected to result from its disclosure, Plaintiff’s claims should be dismissed. At the

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outset of this case, in resolving a motion to dismiss, the Court initially appeared to agree that this

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was an appropriate framework for resolving this litigation. See ECF No. 113 at 8.

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

1

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 7 of 31

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But at the summary judgment stage, the case shifted course dramatically, and that has led

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to the present posture. Plaintiff insisted that its counsel be granted a security clearance for access

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to classified information that might be at issue in resolving its claims. The Government made

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clear its opposition to that request, and that issue was unresolved when the Court ordered the

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Government to submit its summary judgment motion on the merits, including any classified

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submission. The Government expressed concern about this manner of proceeding because the

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classified explanation it would prepare for the Court to demonstrate that the information Twitter

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sought to publish is classified would itself contain sensitive national security information that

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was broader and more detailed than Plaintiff or its counsel would know or have reason to learn.

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See Oct. 24, 2016 Tr., ECF No. 138, at 31:2–17. The Government also argued that litigation

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regarding access to classified information in this case was neither necessary nor appropriate, and

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could make resolution of the merits of Plaintiff’s claims difficult or impossible. Id. at 12:21–

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13:8; 25:22–25; 27:8–14. Despite these warnings, and with the question of access by Plaintiff’s

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counsel unresolved, the Court ordered the Government to provide its classified explanation on

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summary judgment or be precluded from doing so later. Id. at 31:13–24; 32:4–13. To avoid

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such preclusion, the Government submitted the Classified Declaration of FBI Executive

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Assistant Director Steinbach, see Notice of Lodging of Classified Declaration, ECF No. 144

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(“Classified Steinbach Declaration”) concurrently with its summary judgment motion to explain

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why the information Twitter sought to publish is properly classified, including why disclosure of

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the information reasonably could be expected to result in serious damage to national security.

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After the Court denied without prejudice the Government’s summary judgment motion, it

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granted Plaintiff’s motion to initiate a background investigation of its counsel. Plaintiff then

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began to seek access to the Classified Steinbach Declaration. Plaintiff served discovery requests

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which called for the document and other classified information, and made its first formal request

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of the Court to compel access to the classified declaration on November 26, 2018, after

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Plaintiff’s counsel’s background investigation to determine his suitability for access to classified

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information had been favorably adjudicated. The Court then issued an Order to Show Cause

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

2

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 8 of 31

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why the Government should not be compelled to disclose the Classified Steinbach Declaration to

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Plaintiff’s counsel. See ECF No. 261.

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In response to the Plaintiff’s request and the Order to Show Cause, the Government filed

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multiple submissions urging the Court to deny the Plaintiff’s request, both based on the

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Executive’s constitutional authority to protect and control access to classified information, see

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Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988); Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th

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Cir. 1990), and because Plaintiff’s demand to compel disclosure would trigger consideration of

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an assertion of the state secrets privilege if necessary to protect the Classified Steinbach

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Declaration from disclosure – a step which the Government explained could render impossible

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the resolution of the merits of Plaintiff’s First Amendment claims. See ECF Nos. 256, 264, 269.

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Because the Plaintiff’s demand for access and the Order to Show Cause remain pending,

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the Government has proceeded with its consideration of an assertion of the state secrets

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privilege, and as set forth herein, the Attorney General of the United States has now asserted that

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privilege to protect the Classified Steinbach Declaration from disclosure to Plaintiff’s counsel.

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This case is thus now in an extraordinary posture: the Court previously ordered the Government

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to submit its summary judgment motion and accompanying classified explanation to the Court

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before the question of access by Plaintiff’s counsel was resolved, and then issued an order to

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show cause why that detailed explanation, submitted solely for the court’s ex parte, in camera

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consideration, should not be disclosed—over the Government’s objection—to counsel for a

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private party in a civil suit. The Government has previously urged the Court to obviate the need

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for an assertion of the state secrets privilege by denying the Plaintiff’s request for access to

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classified information and discharging the Order to Show Cause on other grounds, see ECF Nos.

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264, 269, and permitting litigation regarding the merits of Plaintiff’s claims to move forward.

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Should the Court do so, there would be no need to address either the assertion of the state secrets

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privilege discussed herein or the need to dismiss Plaintiff’s claims on that basis, which, as

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explained below, would necessarily follow if the privilege is upheld.

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But to the extent the Court may still order the disclosure of the Classified Steinbach

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Declaration to Plaintiff’s counsel, the Attorney General has now asserted privilege over that
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

3

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 9 of 31

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document. See Decl. of William P. Barr, the Attorney General of the United States, attached as

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Ex. A hereto (“AG Decl.”). As explained below, the Classified Steinbach Declaration, in

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explaining why the information Twitter seeks to publish is properly classified, contains four

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categories of classified information. After personal consideration of the matter, the Attorney

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General has determined that disclosure of that information, even to Plaintiff’s counsel,

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reasonably could be expected to cause significant harm to the national security. See AG Decl.

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¶¶ 3–14. In support of the Attorney General’s privilege assertion, the Government also submits

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herewith the Unclassified Declaration of the Acting Executive Assistant Director of the Federal

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Bureau of Investigation Michael C. McGarrity, attached as Exhibit B hereto, as well as the

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Classified Declaration of Acting EAD McGarrity, lodged with the Court Information Security

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Officer solely for the Court’s ex parte, in camera review. Both declarations by Acting EAD

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McGarrity explain further the grounds for the Attorney General’s assertion of privilege.

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When the Government asserts the state secrets privilege to protect information from

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disclosure, a court must undertake a three-step analysis. See Mohamed v. Jeppesen Dataplan,

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Inc., 614 F.3d 1070 (9th Cir. 2010). In the first and second steps, a court must determine

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whether the privilege has been properly invoked as a procedural and substantive matter. See id.

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Here, as explained below, both of these requirements are fulfilled. The Attorney General, as

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head of the Department of Justice, has formally asserted the privilege and has determined that

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disclosure of the privileged information, including to Plaintiff’s counsel, reasonably could be

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expected to cause significant harm to national security. See AG Decl. ¶ 13; see also Unclassified

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McGarrity Decl. 33–40. As a result, if the privilege is upheld, the privileged information would

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be “completely removed from the case.” Jeppesen, 614 F.3d at 1082 (quoting Kasza v. Browner,

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133 F.3d 1159, 1166 (9th Cir. 1998)). As the third and final step of the analysis, where a court

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finds that privilege has properly been invoked, it then must assess “whether the action can be

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litigated without relying on evidence that would necessarily reveal [state] secrets or press so

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closely upon them as to create an unjustifiable risk that they would be revealed.” Id. at 1085.

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Here, the Attorney General has asserted privilege over four categories of information in
the Classified Steinbach Declaration, including not only the classified information that Twitter
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

4

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 10 of 31

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initially sought to publish, but also, a detailed explanation of the harms that reasonably could be

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expected to result from disclosure of that information, including a description of the ways in

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which adversaries of the United States would be able to use that information to the detriment of

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the national security of the United States. See AG Decl. ¶¶ 4, 6–9. Thus, the Classified

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Steinbach Declaration, over which privilege has now been asserted, stands at the very center of

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this litigation, for it is central to explaining why Twitter has no First Amendment right to publish

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information that would harm national security. “There is no feasible way to litigate [the

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Government’s] alleged liability without” this information or without “creating an unjustifiable

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risk of divulging state secrets.” Jeppesen, 614 F.3d at 1087. Indeed, in such a circumstance, as

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explained below, “any plausible effort” by the Government to address Plaintiff’s claims would

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depend upon, and place at risk, the privileged information at issue. Id.

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For all these reasons, as discussed herein and in Defendants’ recent submissions, the

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Court should deny the Plaintiff’s request for access to the Classified Steinbach Declaration and

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discharge the Order to Show Cause. Indeed, the Court may do so without reaching the Attorney

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General’s assertion of privilege for reasons previously set forth by the Defendants.1 However, if

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the Court is still considering whether to grant Plaintiff’s counsel access to the Classified

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Steinbach Declaration, it should uphold the Attorney General’s state secrets privilege assertion

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over the classified information in that document, exclude that information from the litigation,

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and dismiss the Second Amended Complaint on that basis.

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II.

BACKGROUND
Plaintiff filed the currently-operative complaint in May 2016, challenging, inter alia,

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whether the information that it sought to publish was properly classified. See Second Am.

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Compl., ECF No. 114. Defendants responded by seeking a conference to set a schedule for

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summary judgment briefing, urging the Court to resolve this case using the procedures set forth

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in Stillman v. CIA, which provides that in cases challenging classification determinations by

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As explained in the Government’s prior submissions, such an order would be contrary to
law, since the Constitution vests the protection and control of classified information in the
Executive Branch. See ECF Nos. 256, 264, 269 (discussing case law).
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

5

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 11 of 31

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persons subject to nondisclosure obligations, “in camera review of affidavits, followed if

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necessary by further judicial inquiry, will be the norm.” See ECF No. 116 at 2 (quoting Stillman,

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319 F.3d at 548–49). The Court denied the Defendants’ request, and indicated that a responsive

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pleading would be required prior to summary judgment briefing. See ECF No. 119. Defendants

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submitted their answer to the Second Amended Complaint on July 5, 2016. See Answer, ECF

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No. 120.

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On September 21, 2016, Plaintiff submitted its Motion for an Order Directing Defendants

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to Initiate an Expedited Security Clearance Process for Plaintiff’s Counsel, ECF No. 124.

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Defendants opposed that motion, explaining that this case should be resolved, as in Stillman v.

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CIA, based on the Court’s ex parte, in camera review of the Government’s submission of a

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classified explanation of why the information that Plaintiff seeks to publish is properly classified.

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See ECF No. 133 at 4–8. Defendants also explained that there is no support in the case law for

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granting counsel access to classified information in this setting. See id. at 8–12. Moreover,

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Defendants noted that an order granting Plaintiff’s request for background investigations would

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“risk[] sidetracking the case into potentially complex litigation over access to classified

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information,” and, in particular that such an order “[would] set the stage for potential disputes

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over the denial of access by the Government for purposes of this case, or for assertions of

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privilege in response to discovery demands for classified information.” See id. at 12 & n.7.

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At a subsequent case management conference, on October 24, 2016, counsel for the

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Defendants reiterated that this case should move forward pursuant to the procedure established

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by Stillman and its progeny, and avoid the difficult issues that would arise if Plaintiff were to

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request access to classified information. See Oct. 24, 2016 Tr., ECF No. 138, 5:2 –6:20; id.

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14:5–14; id. 20:1–16; id. 28:19–29:10. Counsel further explained that, in this case, the heart of

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the matter—the Government’s explanation of why publication of the information in Twitter’s

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draft Transparency Report reasonably could be expected to harm national security—would itself

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be classified. In such circumstances, counsel explained that courts do not typically permit

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discovery, because a request for access to such information could result in “the Government

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[having] to consider whether to assert the state secrets privilege with . . . potentially serious
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

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Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 12 of 31

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consequences for the litigation.” Id. at 25:22–25; see also id. 12:21–13:8 (explaining that a

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request for access to classified information “would raise questions about whether the case could

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be litigated on the merits at all”); id. 27: 8–14.

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At the same status conference, because Defendants had emphasized that whether

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discovery should be permitted at all was inextricably intertwined with the more global question

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of how the case should proceed, the Court instructed Defendants to submit their summary

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judgment motion. Id. at 30:14–22. Counsel raised concerns about submitting a classified

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declaration supporting a summary judgment motion at a time when Plaintiff’s motion for a

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background investigation was pending, explaining that what the Government could present to the

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Court ex parte would be more fulsome and detailed than anything that could be shared with

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Plaintiff’s counsel. See id. at 31:2–17. The Court nonetheless ordered the Government to

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proceed, including with its ex parte presentation, noting that, otherwise, the Government would

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later be precluded from making such a motion. See id. at 31:13–24; 32:4–13.

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Consistent with the Court’s Order, Defendants submitted their motion for summary

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judgment, see ECF No. 145, including the Classified Steinbach Declaration, explaining why

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publication of the information in Plaintiff’s draft Transparency Report reasonably could be

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expected to harm national security. See Notice of Lodging of Classified Declaration, ECF No.

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144. Defendants also submitted an unclassified version of that declaration, providing as much

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information from EAD Steinbach’s classified declaration as possible, consistent with the national

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security, on the public record. See Unclassified Declaration of EAD Steinbach, ECF No. 147-1,

21

¶ 1. In his unclassified declaration, EAD Steinbach noted his understanding that the classified

22

declaration would be made available to the Court “solely for its ex parte and in camera review.”

23

Id. at 1 n.1. He further emphasized that “[f]or the reasons explained in the classified declaration,

24

disclosure of the information contained therein reasonably could be expected to result in damage

25

to the national security.” Id. On July 6, 2017, the Court denied without prejudice the

26
27
28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

7

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 13 of 31

1

Government’s summary judgment motion, and granted Plaintiff’s motion that the Government be

2

ordered to initiate a background investigation of its counsel. See ECF No. 172.2

3

While the Defendants’ summary judgment motion had been pending, Plaintiff served its

4

discovery requests and Defendants responded with their objections; although Plaintiff’s requests

5

called for classified and unclassified responses, including the Classified Steinbach Declaration,

6

the parties’ February 17, 2017 joint letter brief made clear that Plaintiff was not seeking to

7

compel access to classified information at that time. See Joint Letter Brief, ECF No. 167 at 1 n.2

8

(“Twitter’s discovery requests include requests for unclassified as well as classified information

9

. . . but Twitter seeks at this time to compel only unclassified discovery.”). On August 8, 2017,

10

Defendants submitted a declaration from EAD Carl Ghattas, who became Executive Assistant

11

Director of FBI’s National Security Branch after EAD Steinbach retired, describing the

12

requirements that must be fulfilled before any individual may access classified information. See

13

Aug. 8, 2017 Ghattas Decl., ECF No. 175-1, ¶¶ 9–16. EAD Ghattas attested that the FBI had

14

determined that Plaintiff’s counsel do not fulfill those requirements with respect to the classified

15

information at issue in this case—including the Classified Steinbach Declaration—because the

16

FBI has determined that counsel lack a “need-to-know” that information, as defined by the

17

operative Executive Order. See id., ¶¶ 17–21; see also infra at 18.3

18

On February 12, 2018, the Court overruled a number of Defendants’ objections to

19

Plaintiff’s discovery requests, see ECF No. 188, and the parties have proceeded with discovery,

20

in which Defendants have provided logs for classified materials and produced materials from

21

unclassified systems, as well as related privilege logs, as summarized in the parties’ recent

22

updated case management statement. See Fourth Updated Joint Case Management Statement,

23
24
25
26
27
28

2

Consistent with the Court’s Order, the Government completed a background
investigation of Plaintiff’s counsel. That background investigation was favorably adjudicated.
See Fourth Updated Joint Case Management Statement, ECF No. 244 at 7. As explained herein,
this step does not constitute a grant of access by the Executive Branch to any particular classified
information.
3

On August 28, 2017, Defendants submitted a declaration from EAD Ghattas stating that
he had reviewed the classified and unclassified declarations of EAD Steinbach, and concurred
with the conclusions therein. See ECF No. 179-1, ¶¶ 5–6.
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

8

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 14 of 31

1

ECF No. 244 at 10–13. Defendants have reviewed for responsiveness and logged classified

2

materials, including the Classified Steinbach Declaration. Plaintiff has not, to date, moved to

3

compel disclosure of other classified materials. But at the November 26, 2018 case management

4

conference, Plaintiff specifically requested access to the Classified Steinbach Declaration that

5

Defendants had submitted in support of their summary judgment motion. See Nov. 26, 2018 Tr.,

6

ECF No. 251, at 8:20–22, 13:2–5; see also Fourth Updated Joint Case Management Statement,

7

ECF No. 244 at 7 (noting, on November 19, 2018, that “Twitter [then] intend[ed] to move the

8

Court for an order granting Twitter’s cleared counsel access to Defendants’ classified

9

submission). The Court ordered that Plaintiff submit a formal written request by December 5,

10

2018, Nov. 26, 2018 Tr., ECF No. 251, at 16: 23–24, and Plaintiff submitted such a request. See

11

ECF No. 250. The Court further ordered that, in a December 17, 2018, submission, Defendants

12

inform the Court, inter alia¸ whether they intend to consider an assertion of the state secrets

13

privilege in response to Plaintiff’s request for access to the Classified Steinbach Declaration.

14

Tr., ECF No. 251, at 23:20–24:5. On December 17, 2018, Defendants stated that they had

15

initiated the process of considering whether to assert the state secrets privilege, but asked the

16

Court to deny the Plaintiff’s request for access on other grounds. See ECF No. 256.

17

On January 2, 2019, the Court entered the Order to Show Cause re: Disclosure of

18

Declaration Submitted in Camera, ordering Defendants to show cause why they should not be

19

compelled to disclose the Classified Steinbach Declaration to Plaintiff’s Counsel. See ECF No.

20

261 (“Order to Show Cause”). In briefing submitted in response to the Order to Show Cause,

21

Defendants noted that they were continuing to consider an assertion of the state secrets privilege

22

to protect the classified information in the Classified Steinbach Declaration, but urged the Court

23

to obviate the need for such an assertion by denying the Plaintiff’s request for access on legal

24

grounds. See ECF No. 264 at 4, 9–14, 18; ECF No. 269 at 2, 15; see also n.1, supra.

25

Because the Plaintiff’s request and the Order to Show Cause remain pending, the

26

Government has proceeded with the consideration of whether to assert the state secrets privilege

27

to protect the Classified Steinbach Declaration. That process has now been completed, and the

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

9

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 15 of 31

1

Attorney General has invoked the state secrets privilege to protect the classified information in

2

the Classified Steinbach Declaration. See AG Decl. ¶ 3.

3

III.

4
5
6

CATEGORIES OF INFORMATION SUBJECT TO THE ATTORNEY
GENERAL’S ASSERTION OF PRIVILEGE
After careful personal consideration of the matter, id. ¶ 3, the Attorney General has

asserted the state secrets privilege to protect the following categories of classified national
security information that appear in the Classified Steinbach Declaration:

7

(i)

Information Regarding National Security Legal Process that Has Been
Served on Twitter. Information regarding national security legal process that has
been served on Twitter, including not only the quantity and type of any such
process, but also particular information regarding the subject matter of certain FBI
national security investigations as well as the communications targeted with
national security legal process.

(ii)

Information Regarding How Adversaries May Seek to Exploit Information
Reflecting the Government’s Use of National Security Legal Process.
Information describing how adversaries might exploit provider-specific data
regarding receipt of national security legal process, both with respect to Twitter
and with respect to any other provider.

(iii)

Information Regarding the Government’s Investigative and Intelligence
Collection Capabilities. Information that would reveal or tend to reveal the
Government’s collection capabilities.

(iv)

8

Information Concerning the FBI’s Investigation of Adversaries and
Awareness of their Activities. Information revealing specific targets of
investigation and activities of adversaries of the United States.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Id. ¶ 4.
IV.

ARGUMENT
The privilege for military and state secrets to protect information vital to the national

security “is well established,” and may be invoked by the Government where it is shown, “from
all the circumstances of the case, that there is a reasonable danger that compulsion of the
evidence will expose . . . matters which, in the interest of national security, should not be
divulged.” United States v. Reynolds, 345 U.S. 1, 6-7, 10 (1953). Here, the Attorney General,
after careful personal consideration of the matter, has concluded that disclosure of the four
categories of information described above and in more detail in the Classified McGarrity
Declaration reasonably could be expected to cause significant harm to the national security, and
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

10

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 16 of 31

1

has therefore asserted the state secrets privilege over those categories of information. See AG

2

Decl. ¶¶ 3–5.

3

The Court of Appeals has explained that analyzing a Government assertion of the state

4

secrets privilege involves three steps: “First [a court] must ‘ascertain that the procedural

5

requirements for invoking the state secrets privilege have been satisfied.’ Second, [a court] must

6

make an independent determination whether the information is privileged . . . Finally, ‘the

7

ultimate question to be resolved is how the matter should proceed in light of the successful

8

privilege claim.’” Jeppesen, 614 F.3d at 1080 (quoting Al-Haramain Islamic Found., Inc. v.

9

Bush, 507 F.3d 1190, 1202 (9th Cir. 2007)).

10

Section A below addresses the first and second steps of the analysis, and explains why

11

the Government has properly invoked the state secrets privilege in this case. Section A.1

12

discusses, to the extent possible in unclassified terms, the sensitivity of the information over

13

which the Attorney General has asserted privilege, and Section A.2 explains the national security

14

harm that reasonably could be expected to result from the disclosure of such information to

15

cleared counsel. Section A.3 then describes the extraordinary lengths to which Defendants have

16

gone to facilitate resolution of the merits of Plaintiff’s claims, and explains that the Defendants

17

have asserted the privilege “no more frequently [or] sweepingly than necessary” in this case. Id.

18

at 1082. As explained below, the Government has invoked the privilege now because Plaintiff’s

19

demand for access to the Classified Steinbach Declaration remains pending and the Order to

20

Show Cause has not been discharged. In light of these circumstances, the Attorney General has

21

determined that an assertion of the state secrets privilege is necessary to protect against an order

22

calling for the disclosure of “matters which, in the interest of national security, should not be

23

divulged.” Reynolds, 345 U.S. at 10.

24

Finally, Sections A.4 and B discuss the effects of the Government’s proper invocation of

25

privilege on these proceedings. As explained below, the privileged information is at the very

26

heart of this litigation and Plaintiff’s claims cannot “be litigated without relying on evidence that

27

would necessarily reveal those secrets or press so closely upon them as to create an unjustifiable

28

risk that they would be revealed.” Jeppesen, 614 F.3d at 1085. Accordingly, unless the Court
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

11

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 17 of 31

1

discharges the Order to show cause on other grounds presented by Defendants and thus avoids

2

the need to reach the state secrets privilege assertion, binding precedent requires that Plaintiff’s

3

claims now be dismissed. “While dismissal of an action based on the state secrets privilege is

4

harsh, the results are harsh in either direction and the state secrets doctrine finds the greater

5

public good—ultimately the less harsh remedy—to be dismissal.” Kasza, 133 F.3d at 1167

6

(quotation omitted).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

A. The Attorney General has Properly Invoked the State Secrets Privilege to Protect
the Sensitive National Security Information in the Classified Steinbach Declaration.
As discussed above, when assessing an assertion of the state secrets privilege, a court
must determine whether the privilege has been properly invoked, first, procedurally, and, second,
substantively. Both requirements have been fulfilled here.
With respect to the first step, “there must be a formal claim of privilege, lodged by the
head of the department which has control over the matter, after actual personal consideration by
that officer.” Jeppesen, 614 F.3d at 1080 (quoting Reynolds, 345 U.S. at 7–8). This requirement
is indisputably met here. The Government has submitted a formal claim of privilege through the
public declaration of the Attorney General, the head of the Department of Justice, following his
personal consideration of the matters at issue. See AG Decl. ¶ 3. The Attorney General’s claim
of privilege is supported, in extensive detail, by the classified declaration of Acting EAD
McGarrity, which explains the nature of the information at issue and the specific harms that
reasonably could be expected to result from its disclosure. See Classified McGarrity Decl. The
unclassified declaration of Acting EAD McGarrity describes those categories of information, and
explains the potential harms of disclosure, to the extent possible on the public record. See
Unclassified McGarrity Decl. ¶¶ 23–40.
Turning to the second step of the analysis, the Court must assess whether ‘‘from all the
circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will
expose matters which, in the interest of national security, should not be divulged.’’ Reynolds,
345 U.S. at 10; Al-Haramain Islamic Found., 507 F.3d at 1196; Jeppesen, 614 F.3d at 1080.
The Court must “assure itself that an appropriate balance is struck between protecting national

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

12

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 18 of 31

1

security matters and preserving an open court system.” Jeppesen, 614 F.3d at 1081 (quoting Al-

2

Haramain Islamic Found., 507 F.3d at 1203); see also id. at 1082 (courts should review the

3

Government’s privilege assertions “with a very careful” and “skeptical” eye) (quotations

4

omitted). However, “[i]n evaluating the need for secrecy,” the Ninth Circuit also has

5

“acknowledge[d] the need to defer to the Executive on matters of foreign policy and national

6

security” and noted that a court “surely cannot legitimately find [itself] second guessing the

7

Executive in this arena.” Id. at 1081–82 (quoting Al-Haramain Islamic Found., 507 F.3d at

8

1203); see also e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) (“when it

9

comes to collecting evidence [on national security matters], the lack of competence on the part of

10

the courts is marked, and respect for the Government’s conclusions is appropriate”) (quotation

11

and citation omitted); CIA v. Sims, 471 U.S. 159, 180 (1985) (“[I]t is the responsibility of the

12

[Executive], not that of the judiciary, to weigh the variety of complex and subtle factors in

13

determining whether disclosure of information may lead to an unacceptable risk of

14

compromising the Agency’s intelligence-gathering process.”). Thus, even in situations where

15

the privileged information may appear to be “somewhat innocuous,” the Court of Appeals has

16

cautioned that “[the Court’s] judicial intuition . . . is no substitute for the documented risks and

17

threats posed by the potential disclosure of national security information.” Al-Haramain Islamic

18

Found., 507 F.3d at 1203.

19

To allow the Court properly to complete this step of the analysis, the Government’s

20

assertion of privilege “must be presented in sufficient detail for the court to make an independent

21

determination of the validity of the claim of privilege and the scope of the evidence subject to the

22

privilege.” Jeppesen, 614 F.3d at 1080. Here, the classified declaration of Acting EAD

23

McGarrity describes in classified detail the information at issue, and the reasons why its

24

disclosure reasonably could be expected to cause significant—serious, or, in some cases,

25

exceptionally grave—damage to the national security. See Classified McGarrity Decl. To the

26

extent possible, the Attorney General and Acting EAD McGarrity also describe in their public

27

declarations the four categories of information at issue, and the harm that reasonably expected to

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

13

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 19 of 31

1

be wrought by its disclosure; however, further detail regarding each category and the potential

2

harm of its disclosure are set forth in the classified declaration of Acting EAD McGarrity.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

1. Disclosure of the Information at Issue Reasonably Could Be Expected to Result
in Significant Harm to the National Security.
The first category of information at issue is classified detail regarding national security
legal process that has been served on Plaintiff, including (i) particular information regarding the
subject matter of certain FBI national security investigations and communications targeted with
national security legal process and (ii) detail regarding the quantity of national security legal
process that Plaintiff has received. See AG Decl. ¶ 6; Unclassified McGarrity Decl. ¶ 23. While
the first type of information in this category cannot be described in the unclassified setting, the
nature of the information and the reasons why its disclosure reasonably could be expected to
cause serious damage to the national security are discussed in the classified declaration of Acting
EAD McGarrity.
The second type of information in this category consists of detail regarding the quantity
of national security legal process that Plaintiff has received. Such information would reveal or
tend to reveal information about the extent, scope, and reach of the Government’s national
security collection capabilities and investigative interests. AG Decl. ¶ 7; Unclassified McGarrity
Decl. ¶ 25. The disclosure of such information would allow adversaries of the United States,
including current and future targets of FBI national security investigations, significant insight
into the U.S. Government’s counterterrorism and counterintelligence efforts and capabilities, or,
significantly, the lack thereof; and into particular intelligence sources and methods. AG Decl.
¶ 7; Unclassified McGarrity Decl. ¶ 25.
More specifically, by detailing the amount of each particular type of process that Plaintiff
had received during a particular period, and over time, this data would reveal the extent to which
Twitter was or was not a safe channel of communication for our adversaries. AG Decl. ¶ 8;
Unclassified McGarrity Decl. ¶ 27. The Director of National Intelligence (“DNI”) declassified
certain aggregate data formats reflecting the Government’s use of national security legal process
to permit public reporting by recipients of such process in a manner that would increase

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

14

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 20 of 31

1

transparency without creating an unjustifiable risk of harm to national security. AG Decl. ¶ 8;

2

Unclassified McGarrity Decl. ¶ 26. But the disclosure of data regarding the receipt of national

3

security legal process by Twitter that is more granular than that which has been declassified by

4

the DNI would reveal such information as: (i) incremental increases or decreases in collection,

5

which would show whether the Government has a significant presence or investigative focus on

6

a particular platform; (ii) the collection of content or non-content information, which would

7

show whether and to what extent the Government is collecting certain types of information on

8

that platform; and (iii) the fact of whether or when the recipient received a particular type of

9

process at all, which may reflect different collection capabilities and focus on that platform,

10

different types of information collected, and locations of FBI targets. AG Decl. ¶ 8; Unclassified

11

McGarrity Decl. ¶ 26.

12

The second category of information as to which the Attorney General has asserted

13

privilege includes details of how adversaries might exploit provider-specific data regarding

14

receipt of national security legal process. AG Decl. ¶ 9; Unclassified McGarrity Decl. ¶ 28. As

15

Acting EAD McGarrity explained, although some sophisticated adversaries may already have

16

strategies for exploiting this kind of data, disclosure of this category of information would be

17

tantamount to providing adversaries an instruction manual for how they can effectively take

18

steps against the U.S. Intelligence Community. Unclassified McGarrity Decl. ¶ 28. The

19

information within this category could be used to draw inferences from provider-specific data

20

about the Government’s collection efforts and guide adversaries to sophisticated strategies to

21

employ in their activities against the Intelligence Community. AG Decl. ¶ 9; Unclassified

22

McGarrity Decl. ¶ 28.

23

The third category of information as to which Attorney General has asserted privilege is

24

information that would reveal or tend to reveal the Government’s collection capabilities. AG

25

Decl. ¶ 10; Unclassified McGarrity Decl. ¶ 30. Particularly where there are multiple

26

communication options to choose from and additional services that may come on the market, if

27

adversaries are able to discern the Government’s collection capabilities and deduce which

28

platforms are safest for their communications, they can reasonably be expected to leave
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

15

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 21 of 31

1

platforms where the Government has collection capability in favor of the “safe” communications

2

channels, likely resulting in a loss of intelligence. AG Decl. ¶ 10; Unclassified McGarrity Decl.

3

¶ 30.

4

The fourth category of information as to which Attorney General has asserted privilege is

5

information revealing specific investigative targets and activities of adversaries of the United

6

States. AG Decl. ¶ 11; Unclassified McGarrity Decl. ¶ 31. The particularized descriptions of

7

these targets and activities contained in the Classified Steinbach Declaration reveal not only the

8

Government’s awareness of the activity described in each instance, but, more importantly,

9

disclose to adversaries that those activities were subject to Government surveillance as well as

10

the Government’s intelligence sources and methods used to acquire that information. AG Decl.

11

¶ 11; Unclassified McGarrity Decl. ¶ 31. The disclosure of the identities of investigative targets

12

would alert those targets to the Government’s interest in their activities and cause them to alter

13

their conduct to avoid detection of their future activities, which would seriously impede efforts to

14

gain further intelligence on their activities. AG Decl. ¶ 12; Unclassified McGarrity Decl. ¶ 32.

15

Similarly, the disclosure of information that would tend to describe, reveal, confirm or deny the

16

existence or use of sources and methods of surveillance would again enable subjects to evade

17

detection and, more generally, provide insights into how the Government undertakes

18

investigations – and thereby damage future investigations that might rely on similar methods.

19

AG Decl. ¶ 12; Unclassified McGarrity Decl. ¶ 32.

20

For these reasons, and the reasons discussed in the classified declaration of Acting EAD

21

McGarrity, disclosure of the four categories of information over which the Attorney General has

22

asserted privilege reasonably could be expected to cause significant damage to the national

23

security. Courts considering Government claims of the state secrets privilege have recognized

24

that the disclosure of information that reveals or tends to reveal the targets of Government

25

surveillance or intelligence sources and methods would be harmful to national security. See,

26

e.g., Al-Haramain Islamic Found., 507 F.3d at 1203–04 (targets of Government surveillance);

27

Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (same); Wikimedia Found. v. NSA, 2018 WL

28

3973016, at *12 (D. Md. Aug. 20, 2018) (same); Jeppesen, 614 F.3d at 1086 (sources and
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

16

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 22 of 31

1

methods of CIA intelligence activities); El-Masri v. United States, 479 F.3d 296, 308-09 (4th

2

Cir. 2007) (same).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

2. Disclosure to Cleared Counsel Would Create the Risks of Harm Discussed
Herein.
The Attorney General has determined that the risk of harm to national security exists
notwithstanding that the disclosure demanded here would be to Plaintiff’s counsel who has
received a favorable suitability determination. See AG Decl. ¶ 13; Unclassified McGarrity Decl.
¶ 33–40. Even in these circumstances, the Ninth Circuit has recognized that the Government
might still have “a legitimate interest in shielding [classified] materials even from someone with
the appropriate security clearance.” Al-Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury,
686 F.3d 965, 983 (9th Cir. 2012). Likewise, in upholding the dismissal of claims based on an
assertion of the state secrets privilege in Jeppesen, the Ninth Circuit emphasized that its
conclusion that “further litigation presents an unacceptable risk of disclosure of state secrets . . . .
holds no matter what protective procedures the district court might employ.” Jeppesen, 614 F.3d
at 1089 (rejecting as insufficient, in the circumstances presented, “the use of devices such as
protective orders or restrictions on testimony”); see also id. at 1086 (citing the risk “that
compelled or inadvertent disclosure of [the privileged information at issue] in the course of
litigation would seriously harm legitimate national security interests”). Indeed, there is legion
case law rejecting access by private counsel to information over which the Government has
asserted the state secrets privilege.4

21
22
23
24
25
26
27
28

4

See El-Masri, 479 F.3d at 311 (denying private counsel access to classified information
in state secrets case); Sterling v. Tenet, 416 F.3d 338, 348 (4th Cir. 2005) (same); Ellsberg v.
Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983) (“It is well settled that a trial judge called upon to
assess the legitimacy of a state secrets privilege claim should not permit the requester’s counsel
to participate in an in camera examination of putatively privileged material.”); see also Halkin,
598 F.2d at 7 (“However helpful to the court the informed advocacy of the plaintiffs’ counsel
may be, we must be especially careful not to order any dissemination of information asserted to
be privileged state secrets.”); Tilden v. Tenet, 140 F. Supp. 2d 623, 626 (E.D. Va. 2000)
(“[C]ourts have routinely denied attorneys’ requests to participate in in camera reviews even
when the attorneys have security clearances.”).
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

17

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 23 of 31

1

Here, the Attorney General has determined that the classified information set forth in the

2

Classified Steinbach Declaration, over which the Attorney General has asserted privilege, should

3

be protected from disclosure even to private counsel who has passed a background investigation.

4

The recognition that a suitability determination alone is insufficient adequately to protect

5

classified information is built into the very structure of Executive Order 13526.5 Executive

6

Order 13526 provides that a person may have access to classified information provided that a

7

favorable determination of eligibility for access has been made by an agency head or the agency

8

head’s designee; the person has signed an approved nondisclosure agreement; and the person has

9

a need-to-know the information. Unclassified McGarrity Decl. ¶ 35 (citing Executive Order

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13526, § 4.1 (a)). Under Executive Order 13526, a “need-to-know” is “a determination within

11

the executive branch in accordance with directives issued pursuant to this order that a

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prospective recipient requires access to specific classified information in order to perform or

13

assist in a lawful and authorized governmental function.” Executive Order 13526, § 6.1 (dd).

14

This requirement is a critical facet of the protection of classified information, because it ensures

15

that classified information is not disseminated beyond the extent to which dissemination is

16

necessary for the Government to carry out its national security functions. Unclassified

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McGarrity Decl. ¶ 36. Because every additional disclosure increases the risk of unauthorized

18

disclosure, it is important to keep to a minimum the number of people who have access to

19

classified information. Id. Thus, Executive Order 13526 provides that disclosure is to be

20

permitted if and only if there is an Executive Branch finding that a person’s access is necessary

21

to perform or assist in a governmental function. Id. This provision reflects the judgment that

22

any disclosure beyond that which is necessary for the Government to carry out its functions

23

creates an unjustifiable risk to the national security. Id.

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In this case, both EAD Ghattas and Acting EAD McGarrity have determined that
Plaintiff’s counsel lacks the required “need-to-know” to access the sensitive national security
5

As Defendants have explained in prior briefing, the Constitution confers on the
Executive the exclusive responsibility for the protection and control of national security
information. See Egan, 484 U.S. at 527; Dorfmont, 913 F.2d at 1401. Executive Order 13526
was promulgated pursuant to that constitutional authority.
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

18

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 24 of 31

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information at issue. See Aug. 8, 2017 Ghattas Decl. ¶¶ 17–18; Unclassified McGarrity Decl.

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¶ 35. Moreover, the Attorney General has now asserted the state secrets privilege to protect that

3

information based on his determination that the disclosure of such information to private counsel

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in civil actions such as this reasonably could be expected to risk or result in inadvertent,

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involuntary, or intentional disclosures that could cause serious or, in some cases, exceptionally

6

grave damage to national security. AG Decl. ¶ 13. This determination supersedes any

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determination by a lower level Executive Branch official concerning counsel’s suitability for

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access. Unclassified McGarrity Decl. ¶ 42.

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The determination that disclosure to counsel would create an unjustifiable risk of harm to

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the national security is not based on an individualized finding as to the trustworthiness of

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Plaintiff’s counsel, but on a recognition that any disclosure of classified national security

12

information carries an inherent risk of harm. Id. ¶ 38. Plaintiff’s counsel does not seek access to

13

classified information in order to assist the government in its functions, but to represent a private

14

party in this civil lawsuit. Id. If access to classified information were extended to cleared

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private counsel for non-government parties in civil litigation, then private parties would have the

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ability to vastly extend the distribution of classified information outside of the Government on

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topics of their choice, simply by bringing lawsuits that put such information at issue. Id. This, in

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turn, would substantially compound the already existing risks of inadvertent, involuntary, or

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even intentional disclosures by holders of classified information. Id. Private attorneys have

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obligations to non-government clients that may naturally result in pushing the boundaries of

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what must be protected and what may be permissibly disclosed. Id. Private parties in civil

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litigation are also likely to have less familiarity with the necessary safeguards to protect

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classified information, including in conversations with other persons, at court hearings, or in

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privileged notes and work product on computers to which the Government would have no

25

access. Id. Access by private counsel in civil cases would also create potential non-

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governmental individual marks for foreign adversaries to target in their quest to access classified

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information. Id.

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

19

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 25 of 31

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Private counsel also stand apart from Government employees granted access to classified

2

information in performing their governmental duties, whose computers or other modes of access

3

can be closely monitored or restricted, and whose mishandling of classified information can be

4

sanctioned more directly. Id. ¶ 39. The Government undertakes significant measures to protect

5

classified and sensitive information from disclosure, including by training its employees how to

6

handle it, utilizing classified computer networks and Sensitive Compartmented Information

7

Facilities (SCIFs) to store it, and mandating periodic background reinvestigations of personnel

8

with access to it. Id. Even with such safeguards in place, it is a constant challenge to protect

9

classified information from inadvertent or intentional unauthorized disclosures. Id. Exposing

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classified information to private attorneys in cases such as this is among the significant risks that

11

the “need-to-know” standard is designed to protect against. Id.

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The lack of a need-to-know determination for obtaining access to classified information

13

is especially significant where Plaintiff’s counsel has never previously had access to the

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information at issue. Id. ¶ 40. At most, Plaintiff Twitter has some limited information about

15

national security legal process it may have received from the Government, but it does not know

16

(or have any need to know) the background of any investigations at issue or other additional

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background and level of detail set forth in the Classified Steinbach Declaration. Id. Neither

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Plaintiff nor its counsel have the information regarding the national security threats facing the

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United States from foreign adversaries described in the Classified Steinbach Declaration, nor

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particular information about Government collection capabilities also described therein, nor the

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classified analytical assessment set forth in that declaration as to how more granular disclosures

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about legal process that may – or may not – have been served on particular communication

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platforms could be exploited by a foreign power, resulting in significant harm to the United

24

States. Id. This kind of highly sensitive national security information, including about

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counterterrorism and counterintelligence matters, is strictly controlled even within the FBI and

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Intelligence Community and is certainly not shared with counsel in private civil lawsuits based

27

solely on a suitability determination. Id. In sum, even limited disclosure of the information at

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

20

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 26 of 31

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issue here to Plaintiff’s private counsel would be unprecedented and would risk significant harm

2

to national security. Id.

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3. The State Secrets Privilege Has Been Asserted Only to the Extent Necessary in
this Matter.
The state secrets privilege is to be “asserted no more frequently and sweepingly than
necessary.” Jeppesen, 614 F.3d at 1082. Sections A.1 and A.2 above, as well as Acting EAD
McGarrity’s classified declaration, explain why it is necessary, and in the interest of national
security, to protect from disclosure the four categories of information at issue here. Furthermore,
a review of the procedural history of this case demonstrates that the Government has gone to
extraordinary lengths to facilitate the adjudication of the merits of Plaintiff’s claims, and has not
invoked the state secrets privilege until it became necessary to do so to protect against a potential
order of disclosure.
Although the state secrets privilege may properly be invoked before specific disputes
regarding the disclosure of information have arisen, including where the Government concludes
that a case cannot be litigated without risking the disclosure of information that would create a
significant risk of harm to national security, see, e.g. Jeppesen, 614 F.3d at 1081, the
Government did not seek to invoke the state secrets privilege at the outset of this case. Rather,
throughout this litigation, the Government has urged the Court to proceed as in Stillman and its
progeny, which provide a way for the Court to adjudicate the merits of Plaintiff’s claims without
the risk of harm attendant to the disclosure of such sensitive information to a private party’s
counsel, see supra Section A.2. After the Court ordered the Government to submit its classified
explanation of the harm that reasonably could be expected to arise from Plaintiff’s proposed
disclosure, the Government provided a classified submission, containing TOP SECRET and
Sensitive Compartment Information, See Aug. 8, 2017 Ghattas Decl. ¶ 17, solely for the Court’s
review ex parte, in camera. See supra 3, 7. When the Court denied the Government’s summary
judgment motion, the Government even suggested the entry of judgment against the
Government, based on the belief that the standard of First Amendment scrutiny being applied by
the Court is in error, and because further review would obviate the question of whether this case

28
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

21

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 27 of 31

1

requires either security clearances or a state secrets privilege assertion. See ECF No. 174 at 17

2

(“Under these circumstances, rather than proceed by ordering discovery, the Court should

3

convert its July 6, 2017 Order [denying Defendants’ motion for summary judgment] to a final

4

judgment”). The Government also has proceeded with discovery, producing nearly thirty

5

thousand pages of materials from unclassified systems, and a log identifying classified

6

documents collected by the FBI in its SECRET enclave in response to Plaintiff’s discovery

7

demands, consisting of four volumes addressing email and attachments comprising over 700

8

pages, as well as two additional logs addressing Instant Messages and electronic documents. See

9

Fourth Updated Joint Case Management Statement, ECF No. 244 at 11. Additionally,

10

Defendants have reviewed thousands of documents from their remaining classified systems, and

11

are continuing to prepare logs identifying responsive classified documents, to be produced to the

12

Plaintiff on March 22. Even in the face of the requirements that classified systems be searched

13

and reviewed, and that information about classified documents be logged, the Government had

14

not yet asserted the state secrets privilege.

15

Rather, the Government has asserted the privilege now in response to the continued

16

pendency of the Plaintiff’s request for access to the Classified Steinbach Declaration, and the

17

Order to Show Cause why it should not be disclosed, because it appears that the Court otherwise

18

may imminently enter an order of disclosure.6 In light of these circumstances, the Government

19

has now invoked the state secrets privilege to protect the sensitive information at issue.

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4. The Proper Invocation of Privilege Over These Categories of Information
Renders Them Unavailable for Any Purpose in this Litigation.
Sections A.1–A.3 above set forth the reasons why the Attorney General has properly
asserted the state secrets privilege to protect the classified information in the Classified
Steinbach Declaration, discussed herein. If the privilege assertion is reached and upheld, those

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6

If the Court proceeded to enter an order of disclosure notwithstanding the Government’s
assertion of privilege, any such order would be subject to immediate appellate review. See In re
Copley Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008); Admiral Ins. Co. v. U.S. Dist. Court,
881 F.2d 1486, 1491 (9th Cir. 1989); see also, e.g., Stillman, 319 F.3d at 547–49 (reviewing and
reversing an order that classified information be disclosed to plaintiff’s counsel in that case).
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

22

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 28 of 31

1

categories of information must be removed from the case entirely. “When the [G]overnment

2

successfully invokes the state secrets privilege, ‘the evidence is completely removed from the

3

case.’” Jeppesen, 614 F.3d at 1082 (quoting Kasza, 133 F.3d at 1166); see also Al-Haramain

4

Islamic Found., 507 F.3d at 1204 (“The effect of the [G]overnment’s successful invocation of

5

privilege is simply that the evidence is unavailable, as though a witness had died.”) (quotation

6

omitted). The state secrets privilege is absolute, and “even the most compelling necessity cannot

7

overcome” it, as the Supreme Court has unequivocally held, Reynolds, 345 U.S. at 11, and as the

8

Ninth Circuit has recognized, see Al-Haramain Islamic Found., 507 F.3d at 1204 (“The

9

privilege, once found to exist, cannot be compromised by any showing of need on the part of the

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party seeking the information.”); Kasza, 133 F.3d at 1166.
B. Because this Case Cannot Be Litigated Without the Privileged Evidence, Binding
Precedent Requires that Plaintiff’s Claims Be Dismissed.
The third and final step of the analysis regarding the Government’s assertion of privilege
is to consider how the matter should proceed in light of the removal of the classified evidence.
See Jeppesen, 614 F.3d at 1082. In some cases, “simply excluding or otherwise walling off the
privileged information may suffice to protect the state secrets and ‘the case will proceed
accordingly, with no consequences save those resulting from the loss of evidence.’” Id. at 1082–
83 (quoting Al-Haramain Islamic Found., 507 F.3d at 1204). In others, however, “application of
the privilege may require dismissal of the action,” such as where “there is no feasible way to
litigate [the defendants’] alleged liability without creating an unjustifiable risk of divulging state
secrets.” Id. at 1087. The instant case presents such a situation; as in Jeppesen, “any plausible
effort . . . to defend” against Plaintiff’s claims would present such a risk, notwithstanding that
Plaintiff may be able to state a prima facie case without relying on evidence excluded by the
Government’s assertion of privilege. Id. at 1088.
The Classified Steinbach Declaration, over which privilege has now been asserted,
stands at the center of this litigation, for it is essential to explaining and understanding why
Twitter has no First Amendment right to publish the information in its draft Transparency
Report. As described even in unclassified terms, the centrality of the privileged information to
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

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Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 29 of 31

1

these proceedings should be evident. See supra 10, 14–16. The first and second categories of

2

information are squarely at the very heart of what is at issue in this matter, as they comprise

3

detail regarding the national security process that Plaintiff has received and the sophisticated

4

ways that adversaries could use detail about Plaintiff’s or other providers’ receipt of national

5

security process against the U.S. Intelligence Community. See id. In other words, these

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categories include both the specific information that Plaintiff seeks to publish and the detailed

7

discussion of what harm reasonably could be expected to arise from the disclosure of that

8

information. The Classified Steinbach Declaration, and the specific privileged information it

9

contains, described herein, pertains directly to the core issue of whether Twitter has a First

10

Amendment right to publish granular information concerning national security legal process it

11

has received.

12

Moreover, the Court, in its July 6, 2017 Order denying the Government’s summary

13

judgment motion, indicated that, to fulfill the standard of scrutiny the Court held to be

14

applicable,7 the Government’s presentation must include consideration of specific detail such as

15

“the volume of any requests involved,” and “an articulation of the inference the Government

16

believes can be drawn from the information Twitter itself seeks to publish.” July 6, 2017 Order

17

at 17. In short, the Court held that Defendants would be required to present the very kind of

18

information excluded by the privilege—and to do so in even greater detail—as the Court held

19

that the information presented by the Government up to that point was not sufficient to fulfill the

20

standard that the Court had applied. See id.

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Moreover, where privileged state secrets are so central to the matter, any further litigation

22

presents an unacceptable risk of disclosure. This is because, as the Ninth Circuit has recognized,

23

“[a]dversarial litigation, including pretrial discovery of documents and witnesses and the

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presentation of documents and testimony at trial, is inherently complex and unpredictable.”

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Jeppesen, 614 F.3d 1089. For example, if a Government official were to sit for a deposition or

26

take the stand and attempt to testify as to the reasons why Plaintiff’s proposed disclosure

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The Government continues to respectfully disagree as to the standard that should apply
to Plaintiff’s claims.
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

24

Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 30 of 31

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reasonably could be expected to harm national security, Plaintiff “would have every incentive to

2

probe dangerously close to the state secrets themselves.” Id. at 1088 (quoting Fitzgerald v.

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Penthouse Int’l Ltd., 776 F.2d 1236, 1243 (4th Cir. 1985). Indeed, “the plaintiff and its lawyers

4

would have every incentive to probe as close to the core secrets as the trial judge would permit.

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Such probing in open court would be inevitably revealing.” Id. (quoting Farnsworth Cannon,

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Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (per curiam)). And any probing

7

question that Plaintiff could ask about the information that Plaintiff seeks to disclose in its draft

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Transparency Report would necessarily risk disclosure of the privileged information subject to

9

the Attorney General’s assertion of privilege, and any answer would place privileged facts at

10

risk. Courts have recognized that, in such circumstances, where a witness has knowledge of the

11

privileged materials, “state secrets could be compromised even without direct disclosure by a

12

witness.” Id. at 1088 (quoting Fitzgerald, 776 F.2d at 1243). Citing these realities, the Ninth

13

Circuit in Jeppesen held that the proper invocation of the state secrets privilege required

14

dismissal of the plaintiffs’ claims in that case. See id. at 1086–90. That precedent requires the

15

same result here; in sum, because “litigating the case to a judgment on the merits would present

16

an unacceptable risk of disclosing state secrets,” it is “impossible to proceed with the litigation.”

17

Jeppesen, 614 F.3d at 1083.

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V.

CONCLUSION
For the foregoing reasons, the Court should deny the Plaintiff’s request for access to the

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Classified Steinbach Declaration and discharge the Order to Show Cause. As noted, the Court

21

may do so on legal grounds previously set forth by the Government without reaching the

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Attorney General’s assertion of privilege. However, if the Court is still considering whether to
grant Plaintiff’s counsel access to the Classified Steinbach Declaration, it should uphold the
Attorney General’s state secrets privilege assertion over the classified information in that

25

document described above, exclude that information from the litigation, and dismiss the Second

26

Amended Complaint on that basis.

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

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Case 4:14-cv-04480-YGR Document 281 Filed 03/15/19 Page 31 of 31

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Dated: March 15, 2019

Respectfully submitted,

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JOSEPH H. HUNT
Assistant Attorney General
DAVID L. ANDERSON
United States Attorney
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ Julia A. Heiman
JULIA A. HEIMAN, Bar No. 241415
Senior Counsel
CHRISTOPHER HEALY
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
[e-mail]
Attorneys for Defendants

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
Defs.’ Req. that the Court Discharge the Order to Show Cause and
Deny Pl.’s Req. for Access to the Classified Steinbach Decl., or in the Alternative,
Motion to Dismiss in Light of the Attorney General’s Assertion of the State Secrets Privilege

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Case 4:14-cv-04480-YGR Document 281-1 Filed 03/15/19 Page 1 of 8

Exhibit A

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Exhibit B

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JOSEPH H. HUNT
Assistant Attorney General
DAVID L. ANDERSON
United States Attorney
ANTHONY J. COPPOLINO
Deputy Branch Director
JULIA A. HEIMAN
Senior Counsel
CHRISTOPHER HEALY
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants the Attorney General, et al.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
__________________________________________
)
TWITTER, INC.,
)
Case No. 14-cv-4480-YGR
)
Plaintiff,
)
)
)
v.
)
)
WILLIAM P. BARR, United States
)
Attorney General, et al.,
)
)
Defendants.
)
)
[PROPOSED] ORDER
__________________________________________)

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The Court, having considered the Defendants’ Request that the Court Discharge the
Order to Show Cause and Deny Plaintiff’s Request for Access to the Classified Steinbach
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
[PROPOSED] ORDER

1

Case 4:14-cv-04480-YGR Document 281-3 Filed 03/15/19 Page 2 of 2

1

Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney General’s

2

Assertion of the State Secrets Privilege, and any submissions in support thereof or in

3

opposition thereto, hereby ORDERS that the Order to Show Cause is hereby DISCHARGED

4

and further ORDERS that Plaintiff’s request to access the Classified Steinbach Declaration is

5

DENIED.

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IT IS SO ORDERED, this _________ day of _____________, 2019.

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Dated: ____________________

_______________________________________
HON. YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
[PROPOSED] ORDER

2

Case 4:14-cv-04480-YGR Document 281-4 Filed 03/15/19 Page 1 of 2

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JOSEPH H. HUNT
Assistant Attorney General
DAVID L. ANDERSON
United States Attorney
ANTHONY J. COPPOLINO
Deputy Branch Director
JULIA A. HEIMAN
Senior Counsel
CHRISTOPHER HEALY
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants the Attorney General, et al.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
__________________________________________
)
TWITTER, INC.,
)
Case No. 14-cv-4480-YGR
)
Plaintiff,
)
)
)
v.
)
)
WILLIAM P. BARR, United States
)
Attorney General, et al.,
)
)
Defendants.
)
)
[PROPOSED] ORDER
__________________________________________)

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The Court, having considered the Defendants’ Request that the Court Discharge the
Order to Show Cause and Deny Plaintiff’s Request for Access to the Classified Steinbach
Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
[PROPOSED] ORDER

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Case 4:14-cv-04480-YGR Document 281-4 Filed 03/15/19 Page 2 of 2

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Declaration, or, in the Alternative, Motion to Dismiss in Light of the Attorney General’s

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Assertion of the State Secrets Privilege, and any submissions in support thereof or in

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opposition thereto, hereby ORDERS that the Defendants’ motion is GRANTED, and

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FURTHER ORDERS that this action is hereby DISMISSED.

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IT IS SO ORDERED, this _________ day of _____________, 2019.

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Dated: ____________________

_______________________________________
HON. YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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Twitter, Inc. v. Barr, et al., Case No. 14-cv-4480-YGR
[PROPOSED] ORDER

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