(Ken Silva, Headline USA) At least two major privacy organizations have come to support Elon Musk’s challenge to the gag order the Justice Department put on Twitter/X last year, when the DOJ issued a search warrant for Donald Trump’s Twitter account.
Musk’s challenge stems from Special Counsel Jack Smith obtaining a search warrant for Trump’s Twitter account in January 2023 as part of his investigation into the former president. As Headline USA exclusively reported last November, the DOJ obtained a vast trove of data about the former President’s social media activity, including info on every account to like, follow or retweet him.
Twitter tried challenging the broad search warrant, as well as a gag order preventing the company from notifying Trump, and the company held in contempt for its troubles. Last July, the Washington DC Appeals Court upheld a $350,000 fine against Twitter issued by Obama-appointed District Judge Beryl Howell.
Twitter’s challenge isn’t over yet. In a petition filed with the U.S. Supreme Court on May 30, the company asked for SCOTUS to review the gag order.
According to Twitter’s attorneys, the gag order violated Trump’s executive privilege, along with the First Amendment.
“The government can now circumvent the [Presidential Records Act] and deny privilege-holders their opportunity to assert privilege by seeking communications from, and gagging, third parties,” Twitter argued in its petition.
“And in the tens of thousands of other cases where the government obtains nondisclosure orders, the government can invade other privileges—including attorney-client, journalist-source, and doctor-patient— without notice,” the company added.
“Meanwhile, the First Amendment rights of service providers like Twitter to notify users in time for them to assert privileges can be irreparably injured.”
Two privacy groups have filed amicus briefs in support of Twitter’s challenge: the Electronic Frontier Foundation and the Project for Privacy & Surveillance Accountability, or PPSA.
In a press release, PPSA explained why it’s supporting Musk’s challenge.
“In the case of X, the government has seized the company’s records on customer communications and then slapped the company with an NDO to force it to shut up about it,” the group said.
“The government claims this secrecy is needed to protect the investigation, even though the government itself has already publicized the details of its investigation. Whatever you think of Donald Trump, this is an Orwellian practice.”
EFF made a similar argument in its amicus brief, which was filed on July 2.
“In barring Twitter from speaking before that speech occurred, the nondisclosure order acted as a quintessential prior restraint: ‘the most serious and the least tolerable infringement on First Amendment rights,’” the group said, quoting from SCOTUS case law.
Jack Smith issued his own response on July 3, arguing that the gag order on Twitter was appropriate. Smith asked SCOTUS to deny Twitter’s petition.
There’s no public indication of when SCOTUS might decide on the matter.
Ken Silva is a staff writer at Headline USA. Follow him at twitter.com/jd_cashless.
