U.S. Customs and Border Protection (CBP), part of the Department of Homeland Security, sent a summons to Twitter last month seeking records about a “rogue” federal agency Twitter account, @Alt_USCIS. The account—one of many similar accounts launched since President Trump’s inauguration by career federal employees and other activists opposed to the President’s agenda—describes itself as “immigration resistance,” and has been sharply critical of the administration’s actions regarding immigration and border security. So it’s not hard to see why officials at CBP, a sister agency of U.S. Citizenship and Immigration Services, wanted to find out who was behind the Alt_USCIS account.
The government’s efforts to unmask this account flew under the radar until last week, when Twitter filed a lawsuit in the U.S. District Court for the Northern District of California asking the court to declare the summons unlawful on the grounds that it exceeded CBP’s statutory investigative powers and violated the First Amendment’s protection of anonymous speakers. Soon thereafter, the American Civil Liberties Union announced it was representing the anonymous individual (or individuals) behind the Alt_USCIS account and would be joining Twitter in taking legal action against the CBP summons.
Fortunately, a day after Twitter filed its lawsuit, the agency withdrew its summons before the court had a chance to address the merits of the dispute. It’s not every day that the U.S. government backs down so quickly from an investigation due to legal pressure—as one of ACLU’s attorneys remarked, “[t]he speed with which the government buckled shows just how blatantly unconstitutional its demand was in the first place.”
Before unpacking the constitutional issues at stake in this dispute, it’s worth noting that the statutory authority cited by CBP as the legal basis for the summons—19 U.S.C. § 1509—addresses the agency’s power to examine records that are relevant to investigations regarding the “duties, fees and taxes” owed in connection with the importation of merchandise into the United States. What does this have to do with the identity of a Twitter user who has been critical of the U.S. government? Nowhere in the CBP summons is there any evidence that Alt_USCIS is involved in the importation of merchandise into the United States, or any activities relating to such importation.
Even if Congress had empowered CBP to seek records about anonymous (or pseudonymous) Internet users based on their criticism of U.S. immigration and border security policies, for the agency to exercise this authority to unmask political critics would run afoul of the First Amendment. The Supreme Court has recognized that the First Amendment protects a person’s right to speak anonymously—a venerable American tradition dating back to the nation’s founding, when pseudonymous speakers writing under names such as Publius and Cato played a major role in public discourse. Given that none of Alt_USCIS’s tweets appear to have broken any laws or caused actionable harm to any person, unmasking the user would have a chilling effect on the many critics of government who prefer not to publicize their identity to avoid retaliation and ostracism.
What if the person behind the Alt_USCIS account is a government employee? This is a distinct possibility, but it still wouldn’t justify forcing Twitter to unmask the account. Although the Supreme Court has recognized that the government’s interests “in regulating the speech of its employees … differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,” these interests must be weighed against an employee’s freedom to comment on “matters of public concern.” In one case, the Supreme Court held that a county constable’s office violated the First Amendment when it fired an employee who commented on the attempted assassination of President Reagan, stating that “I hope if they go for him again, they get him.” Moreover, even if the person behind the Alt_USCIS account is a federal employee whose conduct would legally merit his termination, it does not follow that the government has the authority to compel Twitter to hand over its records pertaining to the account.
Ironically, perhaps the most noteworthy consequence of the government’s decision to seek Twitter’s records about the Alt_USCIS account has been to draw considerable public attention to that the articular account. This is a classic example of the “Streisand effect,” a term coined by Mike Masnick in 2005 when Barbra Streisand’s efforts to suppress images of her Malibu mansion on the Internet ended up causing them to be disseminated much more widely than they would have been otherwise.
This is hardly the first time a government agency has wrongly sought to unmask the identity of an anonymous critic on the Internet. Back in 2011, as Nicole W.C. Yeatman and I discussed in an op-ed in The Seattle Times, the police department in Renton, Washington tried to use the courts to compel Google to hand over records about “MrFuddlesticks,” a YouTube user who made several videos criticizing the department for sexual harassment allegations and other misconduct. And in 2015, I wrote about the effort by the recently fired U.S. Attorney Preet Bharara to force Reason magazine to divulge identifying information about a pseudonymous commenter who had made some politically incorrect, hyperbolic comments about a federal judge.
Hopefully this saga marks the end of this administration’s efforts to unconstitutionally unmask anonymous critics.