In recent months, number of “alt” or “rogue” Twitter accounts have popped up, claiming to be the postings of current and former employees at various bodies within the executive branch: the National Park Service, Labor Department, EPA, NASA, etc. Today, Twitter sued the Dept. of Homeland Security and its Customs and Border Protection (CBP) agency in an attempt to halt their efforts to unmask an “alt” account linked to the U.S. Citizens and Immigration Services agency.
@alt_uscis was launched on Twitter, like many similar accounts, in Jan. 2017. The account, which explicitly states that its opinions are not those of DHS or USCIS, has more than 37,000 followers, and is highly critical of the new administration. Those who Tweet on the account have claimed to be USCIS employees, but their actual identities are not known to the public.
According to a lawsuit [PDF] filed today in federal court, Twitter received an administrative summons from CBP on March 14, demanding that the company provide the government with records that would “unmask, or likely lead to unmasking” the actual identity of @alt_uscis. However, Twitter has thus far refused to comply with the summons, arguing that it is unlawful.
First, Twitter claims that the particular law CBP cites as authority for issuing the summons does not apply in this case. That law deals with access to records involving taxes and duties on imports.
And in fact, the summons does include the boilerplate language that its purpose is 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 and ICE.”
But, counters the complaint, “CBP’s investigation of the @ALT_USCIS account plainly has nothing whatsoever to do with the importation of merchandise into the United States.”
Another thing in the summons that Twitter chose to ignore, a request from CBP that Twitter not “disclose the existence of this summons for an indefinite period of time.”
Oh yeah, apparently that summons sent via fax on March 14, demanded that Twitter turn over these records by March 13, an impossibility without a flux capacitor and Doc Brown.
When Twitter contacted the CBP special agent who had sent the summons, the company says the agent “did not identify any law or laws that he believed had been broken or point to any evidence substantiating any such belief — such as particular Tweets that he believes were unlawful.”
This lack of an explanation, says Twitter, “seemed to confirm that the investigation had nothing to do with obtaining records to assess whether appropriate duties and taxes had been paid on imported merchandise.”
As for not telling the account-holder about this summons, Twitter told the agent that the only way it could be stopped is if CBP obtained a court order under the Stored Communications Act. When the agent said this was not possible, Twitter advised the anonymous folks behind @alt_uscis of the summons.
When CBP refused to withdraw the summons, Twitter says it had no choice but to sue DHS, CBP, and the agents involved to get this records demand off its back.
More important than all the statutory fine points and legal processes, Twitter points to the Supreme Court’s long-expressed support in the right of people to express themselves anonymously, particularly in terms of political critique.
“Preserving anonymity appears to be especially important for users of these alternative agency accounts who are current federal employees,” writes Twitter, “given the risk that such users could face retaliation, sanctions, or other negative repercussions from their federal employer if they were identified as the source of criticism of their agency.”
In the 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission — a case involving anonymously written political campaign literature — the court clearly defended the right to remain unmasked.
“Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity,” wrote Justice John Paul Stevens for the SCOTUS majority, noting that it doesn’t matter why the speaker chooses to remain anonymous. “Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”
Stevens called anonymity a “shield from the tyranny of the majority” that “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”
Twitter’s stance is that if the government can compel the unmasking of a Twitter account — or even information that may eventually lead to that unmasking — it would have a far-reaching chilling effect, giving other current and former public employees pause before speaking.
“The Constitution does not permit a government agency to suppress dissent voiced by current or former employees in their private capacity,” writes Twitter, asking the court to invalidate the summons.