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Twitter has lost its appeal of a court ruling that held the company in contempt for failing to promptly respond to a search warrant seeking information related to the Twitter account of former president Donald Trump—even though the social media platform ultimately complied.
The original ruling, which also carried a $350,000 sanction, was issued in March, and the rejection of Twitter's appeal was delivered July 18. But details of the case were not public and only revealed on Wednesday—with court-sealed information redacted.
The case is part of Special Counsel Jack Smith's high-profile investigation of the Jan. 6, 2021 riot at the U.S. Capitol in Washington, D.C.
Although the court filings do not specify what information Twitter ultimately provided—the Jan. 17 search warrant directed Twitter to "produce data and records related to the '@realDonaldTrump' Twitter account"—it's likely to be direct messages exchanged with other Twitter users. The rest of Trump's activity on the platform was public posts shared with his 88 million followers, until he was booted from the site after the riot.
According to the filing, the government had a hard time serving Twitter with the search warrant and nondisclsoure order.
"The government tried to submit the papers through Twitter's website for legal requests, only to find out that the website was inoperative," the filing explains, noting that the submission appeared to go through two days later. "However, when the government contacted Twitter' s counsel to check on the status of Twitter' s compliance, Twitter' s counsel stated that she 'had not heard anything about [the] [w]arrant.'"
The ruling and appeal
In addition to providing the records sought with the search warrant, Twitter was also subject to a nondisclosure order, prevented from notifying Trump or anyone else that the warrant was issued.
"The district court found that there were 'reasonable grounds to believe' that disclosing the warrant to former President Trump 'would seriously jeopardize the ongoing investigation' by giving him 'an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates," the court filing explained.
Twitter eventually resisted, arguing that the nondisclosure order violated its First Amendment rights. The company filed a motion on Feb. 2 seeking to vacate the order. At a Feb. 7 hearing, the court rejected that argument and ordered Twitter to produce the requested records by 5 p.m. that day or face escalating daily fines starting at $50,000—doubling every day.
The court adopted the "geometric rate," noting that Twitter was sold for over $40 billion and that its owner's net worth was over $180 billion.
The company took three days to comply, resulting in a contempt order and a $350,000 fine. Twitter appealed those rulings, but the three-judge panel in the D.C. circuit of the U.S. Court of Appeals rejected its arguments, affirming the government's assertion that the gag order "serves a compelling government interest" and was "narrowly tailored."
Social media and search warrants
Tuesday's decision is the latest chapter in an ongoing battle between the federal government and social media companies over disclosing the private information of its users. Federal prosecutors have increasingly relied on search warrants and court orders under the Stored Communications Act to access data held by tech firms.
Critics of the practice argue that the accompanying nondisclosure orders prevent companies from providing meaningful notice to affected users. Under the federal Department of Justice, gag orders generally expire after one year if they aren't extended.
Twitter is working on making it impossible for it to disclose Direct Messages sent on its platform by implementing end-to-end encryption.
"The standard should be, if someone puts a gun to our heads, we still can’t access your messages," the company wrote in May. "We’re not quite there yet, but we’re working on it."
Encrypted messaging on Twitter is only available to paid Twitter Blue subscribers and verified users. Meta and its Messenger platform for Facebook offers encrypted communications, as does its Instagram platform—but in all three cases, the setting is opt-in and messages are not encrypted by default.
For now, the issue is moot for users of Meta's new Threads app and the Bluesky social network on the AT Protocol, as these services does not support user-to-user messaging and posts are public by default.
The Mastodon social network, built on the ActivityPub protocol, does offer user-to-user direct messages, but the open-source platform does not offer encryption out of the box, and in most cases, the administrators of each independently-run Mastodon server can theoretically read every user's messages.
The vulnerability of messages on social media platforms is what has driven many users to encrypted and expiring messaging platforms like Signal, Telegram, and WhatsApp.