When is a rule not a rule? When it’s inconvenient for the Justice Department (DOJ) to have a rule.

That’s what the federal government is arguing in response to a suit (pdf) brought by social media company Twitter, which is seeking to give its users more information about the number of times it is asked to divulge information about its users by investigators.

The Justice Department says Twitter and other social media platforms are bound by a letter (pdf) written last year by then-Deputy Attorney General James Cole that outlines how information may be released. Twitter sued last year, claiming constitutional protections of free speech should allow it to provide actual numbers, instead of a broad range, of when it’s asked to give up user information and what kind of requests it receives. The suit also claims the rules set forth in the DOJ letter were not properly put into place.

In response, the government is arguing that those aren’t really rules, they’re more like guidelines. So far, District Judge Yvonne Gonzalez Rogers appears to be taking the attitude that if it looks like a rule and smells like a rule, it’s a rule. According to the Electronic Frontier Foundation, Gonzalez Rogers said the letter appears to lay out a “protocol” defining “specifically what they could do and how they could do it.” Twitter sought to disclose information, “and the response was—you cannot. See the [Deputy Attorney General’s] letter,” Gonzalez Rogers said.

The reason the Justice Department would like the letter not to be considered a rule is that if it is, Gonzalez Rogers could decide that it was improperly made and invalidate it. But if the letter merely lays out guidelines, there’s nothing for Twitter to challenge and the company’s contention is moot.

Assuming that strategy doesn’t pan out, the Justice Department is hoping to have the suit moved to the secret Foreign Intelligence Surveillance Court (FISC), even though Twitter isn’t thought to be subject to FISC orders…as far as we know.

-Steve Straehley

To Learn More:

When Is a Justice Department Rule Not a Rule? Report From Twitter’s Transparency Fight (by Karen Gullo, Electronic Frontier Foundation)

Twitter vs. Department of Justice, et. al. (pdf)

Twitter Handles Information Requests from 58 National Governments, but 56% are from U.S. (by Noel Brinkerhoff, AllGov)

Continuing Our Fight for More Transparency (Twitter)

Federal Judge Orders Justice Dept. to Turn over Secret FISA Court Documents (by Steve Straehley, AllGov)