Criminal Justice & the Rule of Law Surveillance & Privacy

Twitter Drops Complaint Against DHS

Jordan Brunner
Friday, April 7, 2017, 3:38 PM

The U.S. District Court for the Northern District of California was handed a First Amendment case yesterday morning involving the rights of Twitter users to remain anonymous if the government does not want them to remain so.

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The U.S. District Court for the Northern District of California was handed a First Amendment case yesterday morning involving the rights of Twitter users to remain anonymous if the government does not want them to remain so. Twitter filed a complaint seeking declaratory and injunctive relief against the Department of Homeland Security and Customs and Border Protection to prevent it from forcing Twitter to “unmask” the identity of Twitter user @ALT_USCIS, though its complaint applies to “one or more persons who have been using Twitter’s social media platform.”

This morning, however, CBP withdrew its request for the identity of @ALT_USCIS. In response, Twitter has withdrawn its complaint under Federal Rule of Civil Procedure 41 without prejudice. Below is a summary of the original complaint.

The legal filings reference the scores of Twitter accounts that cropped up after Donald Trump’s inauguration, beginning with @AltUSNatParkSer, which was created in response to news that the young administration had placed a temporary ban on social media postings by a variety of agencies (including the National Park Service). A wave of “Alt” Twitter accounts followed, disseminating both explicit and implicit criticism of the Trump administration. The accounts are named for the federal agency that is being criticized and seek to demonstrate that the user does not approve of that agency (so, for example, @alt_labor would denote a user who is critical of the U.S. Department of Labor). The accounts generally clarify that they do not purport to speak officially for the agency in question, but while some make clear that the account’s users have no affiliation with the specified agency, others imply that the users are agency employees who seek to anonymously criticize the government.

The account at issue here, @ALT_USCIS, has frequently criticized Trump immigration policies, highlighted what the user says is a history of waste and mismanagement within U.S. Customs and Immigration Services and the Homeland Security Department, and has also “urged Democrats to resist the confirmation of Supreme Court nominee Neil Gorsuch, among many other issues.” The account, which has over 32,00 followers, clarifies that its posts are “not the views of DHS or USCIS” and its user information does not reference any of its users being employed by the agencies in question.

On March 14th, CBP Agent Adam Hoffman issued an administrative summons (a formal legal demand for records by an administrative agency) requiring Twitter to “produce for inspection . . . [a]ll records regarding the [T]witter account @ALT_USCIS to include, User names, account login, phone numbers, mailing addresses, and I.P. addresses.”

The summons provided the boilerplate explanation that the information was needed “in connection with an investigation or inquiry to ascertain the correctness of entries, to determine the liability, for duties, taxes, fines, penalties, or forfeitures, and/or to ensure compliance with the laws or regulations administered by CBP or ICE.” And notably, the CBP simply “requested” that Twitter “not disclose the existence of the summons for an indefinite period of time.” Strangely, the summons set the deadline for producing the information as 11:45 am on March 13, 2017, the day before the summons was faxed—which, as Twitter points out in its complaint, prevented any objection from being raised in a timely manner.

After being informed that Hoffman or CBP would not be seeking a court order preventing disclosure of the summons under the Stored Communications Act, Twitter notified the user of the account @ATL_USCIS of the existence of the summons and challenged the summons in court.

Importation of Merchandise?

Twitter first argues that the summons exceeds its statutory basis, 19 U.S.C. § 1509. The statute authorizes the Homeland Security Secretary, a district director, or a special agent-in-charge to issue a summons for records when they are conducting an investigation in four instances:

  1. When “ascertaining the correctness of any entry”;
  2. When “determining the liability of any person for duty, fees and taxes due,” or determining that liability for “duties, fees and taxes which may be due the United States”;
  3. When “determining liability for fines and penalties”; or
  4. When “insuring compliance with the laws of the United States administered by the United States Customs Service” (Twitter has asked the court to treat this last provision narrowly in relation to the first three provisions based on Yates v. United States.).

Since Twitter believes that none of the documents requested by CBP have anything to do with the importation of merchandise (and since the list of acceptable circumstances “clearly relate narrowly to imports”), Twitter believes that the summons exceeds the statutory authority of DHS. (The complaint notes that Hoffman “did not provide any specifics as to how a summons issued under 19 U.S.C. § 1509 could be an appropriate means for CBP’s Office of Professional Responsibility to be conducting this particular investigation.”)

Twitter further argues that even if the summons was authorized under 19 U.S.C. § 1509, the statute does not provide the government with authority to compel production of the records requested. § 1509(d)(1)(A) only allows for compelled production of those records that importers of merchandise are required to keep during the ordinary course of their business based on § 1508(a)(1)–(3). Likewise, § 1509(d)(1)(A)(ii) only allows for compelled production of records “pertain[ing] to merchandise the importation of which into the United States is prohibited.” User information for the @ALT-USCIS account would not seem to fit into either of these two categories.

The Stored Communications Act

Twitter briefly argues that the administrative summons violates the Stored Communications Act as well. 18 U.S.C. § 2703(c)(2) allows the government to compel production of certain information belonging to a subscriber of an electronic communication service (in this case, Twitter) through use of an administrative subpoena as used here—but the subpoena must be “authorized by Federal or State statute.” As established above, 19 U.S.C. § 1509 does not authorize the summons, which is therefore invalid under the Stored Communications Act.

The First Amendment

Beyond the statutory considerations, Twitter stresses that the government’s order would “chill [users’] exercise of the constitutionally protected right to speak anonymously.”

Citing McIntyre v. Ohio Elections Commission (along with the Federalist Papers), Twitter argues that the First Amendment protects a right to pseudonymous speech. The company points to the fact that the @ALT_USCIS user may face “the very sort of official retaliation that can result from speech that criticizes government officials and agencies,” linking the summons at issue to fears over the “potential for retaliation and ostracism” that undergird the Court’s jurisprudence on the freedom of anonymous speech. Furthermore, @ALT_USCIS is comfortably situated within the tradition of political speech that unambiguously receives First Amendment Protection.

Interestingly, Twitter takes the view that, because the user of the @ALT_USCIS account may be a former or current employee of the Homeland Security Department, his or her expression of opinion is “particularly valuable political speech,” which means that it should receive even more deference on top of the high level of deference already given First Amendment speech. As noted above, however, while some “alt” accounts purport to be run by current or former government employees, the @ALT_USCIS Twitter account does not currently indicate any information of that sort about its user or users.

Using a compilation of case law, Twitter’s complaint then articulates a four-factor test that the government would have to satisfy to receive its information, clarifying that the government has satisfied none of the factors:

  1. A “real evidentiary basis for believing” a criminal or civil offense was committed exists;
  2. The revelation of the speaker’s identity is “necessary” and the least restrictive means by which to investigate the offense at issue;
  3. The defendant’s motive is not to suppress free speech; and
  4. The interests of the government outweigh the First Amendment rights of the user.

This is not the first time that Twitter has sued the federal government and claimed the issue fell under the First Amendment, or revealed information the government wanted kept hidden to one of its customers: In 2014, Twitter sued the Justice Department in its quest to let its customers know the number and content of requests for their personal information, straining against gag orders to the contrary.

Jordan A. Brunner is a graduate of the Sandra Day O’Connor College of Law at Arizona State University, and was a national security intern at the Brookings Institution. Prior to law school, he was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science.

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