When it's presented as a rule to tell people they can't do stuff, but, when pressed in court, the Justice Dept. says it's merely a guideline so the court shouldn't make any rulings about it.
' The Justice Department lawyers asked U.S. District Judge Yvonne Gonzalez Rogers in Oakland to throw out the APA challenge, saying the rules set forth in the DAG letter about what companies can disclose aren’t actually rules. They’re guidelines, said DOJ attorney Steven Bressler. He used an example of a portrait covered by a curtain and said that the DAG letter, far from being rules for Twitter, was merely a description of how the government had drawn the ''curtain back in part'' on otherwise classified information to let companies describe national security-related requests. But, he claimed, the DAG letter didn’t necessarily reflect the full amount of information that the law allowed to be revealed.
Gonzalez Rogers took issue with Bressler’s characterization, saying the DAG letter to tech companies established not mere guidelines, but a "protocol" defining ''specifically what they could do and how they could do it," indicating that to her, they sound quite a lot like rules. Bressler then said the DAG letter set forth a ''safe harbor,'' but that compliance with that letter wasn’t necessarily the only way one could comply with the law. ''Isn’t that exactly what it’s been used for now?" Gonzalez Rogers asked. Twitter sought to disclose information, ''and the response was—you cannot. See the DAG letter,'' Gonzalez Rogers said.'
Not Kafkaesque at all, nosirree.
When Is a Justice Department Rule Not a Rule? Report From Twitter’s Transparency Fight
When is a government rule not a rule? Making that question difficult, when it should be simple, seems to be the government’s leading strategy in a hearing this week in Twitter Inc.’s lawsuit challenging the government’s squelching of its transparency report. Twitter wants to provide a closer look at how often federal agents are demanding private user data for surveillance, and part of its suit fights back against the government’s rules on what it…
