On Thursday, Twitter filed a lawsuit against the Department of Homeland Security, Customs and Border Protection, and several officials in their official capacity. The lawsuit revealed that CBP agents had tried to use an administrative summons to unmask the identity of a pseudonymous Twitter account that was critical of the Trump administration, and at times, of CBP itself. The lawsuit demanded that the court declare the summons to be unlawful and unenforceable.
By Friday morning, attorneys at the Department of Justice contacted Twitter to let them know that the summons had been withdrawn. Having gotten what it wanted, Twitter has since voluntarily dropped suit.
This first attempt under the Trump administration to go after an anonymous online critic (that we know of) has failed. But the tool used was a strange one, and not suited to the purpose—an administrative summons, one that the law seems to say CBP is supposed to use in investigations of goods and imports at the border.
It's not clear why CBP tried to use an administrative summons, and there are signs that suggest that government attorneys were never in the loop about it. It could mean that this administration will never try anything similar again, but it could also mean that future efforts to unmask critics will be less clumsy, and possibly more successful. What we do know is that Twitter is willing to lawyer up to an extraordinary extent to protect its pseudonymous "alt agency" accounts.
The Alt-Agency Accounts
Back in January, the official National Park Service Twitter account retweeted photos comparing the turnout for the inauguration of President Trump, versus President Obama's inauguration in 2009. The retweets spawned an internal backlash (the Park Service temporarily shut down its account) and a short-lived power struggle on Twitter, when the official account for the Badlands National Park issued a series of factual tweets about climate change.
The Badlands tweets were quickly deleted, but the episode spawned an entire genre of pseudonymous Twitter accounts: The "alt" or "rogue" agency account. For a while, anonymous National Park Service employees voiced dissent via the rogue account @AltNatParkServ. This account was followed by a cascade of others—the Alternative Center for Disease Control (@AltCDC), the Alternative Department of Labor (@alt_labor), and the Alternative US Citizenship and Immigration Services (@ALT_uscis).
Twitter is willing to lawyer up to an extraordinary extent to protect its pseudonymous "alt agency" accounts.
Some of these accounts are seemingly run by actual agency staff, others aren't. In the case of @AltNatParkServ, the account operators told Motherboard that they taken over from actual park rangers who were worried about being identified.
On Thursday, Twitter sued the Department of Homeland Security and others, revealing to the public that Customs and Border Protection (an agency under DHS) had attempted to unmask @ALT_uscis with an administrative subpoena.
The account later tweeted a screencap of the First Amendment, and has pinned that post to the top of its page.
This Is Not Twitter's First Fight to Protect a User's Information
This isn't the first time Twitter has fought the government over a user's data. In 2012, Twitter fought a district attorney in New York over a subpoena to produce the user information of Malcolm Harris, an Occupy Wall Street protester, and ultimately lost that battle. In 2014, Twitter sued the government over a gag order that prevented the company from disclosing national security letters (NSLs) that it had received. (Earlier this January, the gag order was lifted, and Twitter finally published two NSLs that it had received).
Twitter has even stood up for users in civil cases. In 2015, when actor James Woods sued a pseudonymous troll for $10 million for tweeting that the actor was a "cocaine addict," Woods's attorneys subpoenaed Twitter for user information. Attorneys for Twitter responded with a scathing letter of objection, writing, "Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers."
Twitter's intervention in these types of cases is fairly unusual for a tech company—in the case of the NSLs, both Google and Yahoo acknowledged receipt of similar letters and have even published them, but neither have gone as far as to sue the government over them. Social media platforms receive court orders to produce data all the time, and they do often comply—it's why so many of them have transparency reports now.
The @ALT_uscis case is different from all of these previous cases, partly because the government order at issue was remarkably sloppy. US Customs and Border Protection (CBP) is an agency under the Department of Homeland Security, and is charged with enforcing regulations at the border with respect to imports and immigration.
By law, CBP has the power to issue a "summons" for information "in any investigation or inquiry conducted for the purpose of ascertaining the correctness of any entry, for determining the liability of any person for duty, fees and taxes due or duties, fees and taxes which may be due the United States, for determining liability for fines and penalties, or for insuring compliance with the laws of the United States administered by the United States Customs Service."
Although both the statute and Twitter's lawsuit strictly use the word "summons," the order is effectively the same as an administrative subpoena—a subpoena issued by an agency, without judicial oversight.
In its lawsuit, Twitter claimed that the summons is invalid because "it is utterly implausible that Defendants' interest in the person(s) who established and use the @ALT_uscis account stems from their importation of merchandise into the United States."
The Time-Traveling Subpoena
The summons in question was very vague. It was mostly a prewritten form, and in the block labeled "3. Records required to be produced for inspection" is a single typed sentence:
"All records regarding the twitter account @ALT_uscis to include, User names, account login, phone numbers, mailing addresses, and I.P. addresses."
The summons requires that a Twitter representative "appear" before CBP Special Agent Adam Hoffman at 11:45 AM on March 13. But according to Twitter's lawsuit, the summons wasn't served until it was sent via fax the next day, March 14— after the supposed deadline to appear.
The boilerplate form claims that failure to comply "will render you liable to proceedings in a US District Court to enforce compliance with this summons as well as other sanctions." It furthermore "requests" that the recipient not "disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law."
The language is murky. It says that Twitter should stay silent about the order indefinitely—possible forever—but it's also not really a gag order. It's a "request," but one that's followed by an oblique threat that failure to follow through will be interference with the investigation.
Twitter lawyered up quickly. On March 28, counsel for Twitter contacted Special Agent Hoffman. According to the lawsuit, Hoffman told Twitter that "CBP did not want the user notified" of the summons. As for the legal basis of the summons, he "stated vaguely that he is conducting an investigation. But he 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."
Twitter told Hoffman that without a court order under the Stored Communications Act (SCA), the company was going to tell @ALT_uscis about the summons. After confirming that the agency was not going to obtain an order, Twitter notified @ALT_uscis on Tuesday, April 4. The lawsuit against DHS was filed two days later.
The Abusive Potential of Administrative Subpoenas
It's not clear why CBP attempted to unmask the @ALT_uscis through this particular legal mechanism, or whether any government lawyers were even looped in on the process. The complaint in the lawsuit doesn't describe any contact with government attorneys, and the summons itself only names special agents of CBP as points of contact. In fact, Friday was the first time that government attorneys made an appearance in this entire battle, and it was to let Twitter know that the summons has been withdrawn.
The abusive potential of the administrative subpoena—a subpoena that can be sent without judicial oversight—has long been noted, but not a lot of attention is paid to them.
Ken White, a former prosecutor and defense attorney who blogs at popehat.com, and who also represented the defendant in the James Woods case, told Motherboard, "Administrative subpoenas are a little-known and oft-abused tool of many federal agencies. They're limited by statute and regulation, but practically speaking they are a way for agents to intrude into citizens' records and affairs with almost no oversight.
"Unlike grand jury subpoenas—which at least require the involvement of a prosecutor and a report to the (usually oblivious) grand jury—administrative subpoenas are a great way for agents to run a rogue off-the-books harassment campaign against anyone they like."
The summons that was sent to Twitter is particularly troubling because of the vague "request" for indefinite secrecy. White notes that that—a kind of head-fake gag order—in particular is a sign of abuse.
Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, said that the "request" for silence is a law enforcement move that is being used more and more frequently. It would be difficult under the First Amendment for the government to get a real court order to prevent notice to the user. So instead the government simply "requests" that the company remain quiet about the subpoena. "That's why it's crucial that third parties have a policy of notifying their users in all cases unless they are prevented from doing so by law," said Crocker. "And why companies should fight back against indefinite gag orders, including NSLs and other gags, as Microsoft is currently doing."
What Happens Now?
At first glance, it really did look like CBP had overstepped its bounds with this one—especially taking into consideration what the authorizing statute actually says and the extra-clumsy move of putting the wrong date on the summons. But if Twitter had neither the resources nor the inclination to fight an administrative subpoena like this one, none of this may have come to light.
In fact, Twitter went out and hired the big guns. For this case, the company has brought on Seth Waxman of WilmerHale, who was Solicitor General under President Bill Clinton from 1997 to 2001.
This wasn't Waxman's first time representing Twitter—he was also counsel for the company in a case where a widow sued the company for "providing support" to terrorist groups by not banning ISIS accounts. But Waxman's participation in this case adds an additional political wrinkle in an already politically-charged saga about anonymous dissent against President Trump.
The complaint in the lawsuit suggested that Twitter as a company isn't just taking a stand on principle, it's actually wildly enthusiastic about defending the alt agency accounts. The complaint featured a number of screencaps from various accounts, and spends 8 out of 25 pages describing the phenomena and history of alt agency accounts, including the @ALT_uscis account. The complaint described these accounts as sources of dissent against the government, and emphasizes that anonymity is important to protect users that are current agency employees.
The user or users behind @ALT_uscis are also lawyered up. Whoever they are, they were represented by lawyers at the American Civil Liberties Union.
When faced with this kind formidable firepower and an accompanying round of bad press, it's no wonder that the government capitulated within 24 hours.
Twitter is getting what it wanted, and @ALT_uscis is now safe. But the company didn't get to wrangle a favorable court decision out of it.
Given its past record, and how enthusiastically it came to bat in this case, Twitter is unlikely to shrink from any future court battles. And given this administration's predilection for getting entangled in thorny lawsuits—like the unending litigation over the travel ban—it's quite possible that Twitter will find itself in court again, over the same issue. The question then will be whether the First Amendment can protect the identities of the alt agency accounts.
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