Twitter Protects Anonymity of Government Critics
The desire for privacy is often at odds with the government’s interest in uncovering information that may be concealed by the use of technology. The conflict has been seen in Apple’s refusal to help the government unlock the phones of its customers and Microsoft’s resistance to government requests to turn over emails that Microsoft stores on overseas servers.
The tension between the government’s interest in fighting crime or preserving national security and an individual’s interest in maintaining the privacy of communications is usually resolved by resorting to constitutional principles that balance those competing interests. In some cases, courts struggle to adapt those principles to technologies that didn’t exist when James Madison and the first Congress were debating the Bill of Rights.
The balance is quite different, however, when the government’s objective is to suppress or punish political speech that government officials deem embarrassing or inappropriate. Stifling speech appears to have been the government’s goal in a recent controversy involving government employees who use Twitter to criticize the agency that employs them.
Twitter’s “Alternative Agency” Accounts
In early April, 2017, Twitter sued the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and various government officials. The lawsuit alleged that DHS and CBP were attempting to force Twitter to disclose the identity of an account holder who tweeted public criticism of those agencies and of the presidential administration.
According to the lawsuit, in the weeks that followed President Trump’s inauguration, a “new and innovative class of American speakers” emerged on the social media platform that Twitter provides: current and former employees of federal agencies, and individuals otherwise connected to those agencies, who provided insights and commentary that addressed the Administration’s official actions and policies. According to Twitter, the “speakers” have generally used their inside knowledge to voice criticisms of government agencies while making it clear that they are not speaking on behalf of the agency.
Some of those accounts, in fact, make it obvious that account holders are offering alternative viewpoints by incorporating the word “alt” into their Twitter accounts. Examples include @alt_Labor, which provides unofficial commentary concerning the Department of Labor, and @blm_alt, which does the same for the Bureau of Land Management. Some of these “alternative agency” accounts have tens of thousands of followers.
Unmasking Agency Critics
Critics who work for the government have always been a vital source of information to the American public. Sometimes they reveal information about an agency that agency heads find embarrassing. When that happens, agency heads may want to locate and punish the critic.
Punishing critics may have been the motive of DHS when it tried to identify the person or persons behind @ALT_USCIS. The account holders purport to be employees of the U.S. Citizenship and Immigration Service (CIS), a unit within DHS. Some tweets have criticized the proposed “Muslim ban” and the proposed Mexican border wall. Those concerns are legitimate topics of political conversation, regardless of how speakers and listeners feel about their merits.
Other tweets have criticized DHS and CIS for mismanaging the agencies and wasting resources. One tweet, for example, complained that CIS loses about 70,000 green cards a year as a result of mismanagement. Another criticized CIS for wasting time and resources by failing to automate its systems. Waste and mismanagement in government agencies almost never becomes public unless agency employees are free to expose it without fear of retaliation.
In March 2017, DHS served Twitter with an administrative summons that directed Twitter to unmask the identity of the @ALT_USCIS account holder. The summons was issued by a Special Agent of CBP, another unit of DHS.
Twitter filed its lawsuit to obtain an injunction against the government’s efforts to force the disclosure of its account holder’s identity. According to Twitter, CBP had no lawful basis upon which to issue the warrant. The statute upon which CBP relied allows CBP to issue a summons requiring the production of certain records that pertain to the payment of import duties and taxes on imported goods. The statute clearly did not apply to records of Twitter accounts.
Free Speech and Twitter
If CBP obtained legal advice before issuing the summons, the advice was remarkably bad. The agency’s lack of authority to issue the subpoena is obvious. Twitter did not need to make any further argument, but its complaint advanced a second, equally compelling reason for asking a court to enjoin the subpoena.
Even if CBP had the authority to subpoena social media records, Twitter argued that using that authority to unmask government critics would have a chilling effect on political speech that is at the heart of First Amendment protection. As far as Twitter could determine, the users of @ALT_USCIS violated no laws. They did not reveal classified information. They merely engaged in a long American tradition, dating back at least to the Federalist Papers, of using anonymity to protect themselves from retaliation for engaging in political speech.
Twitter’s complaint challenged the government to meet the appropriate legal standard for unmasking the source of anonymous political speech: a demonstration that the speech violated the law, that the violation could not be investigated by less restrictive means than unmasking the speaker’s identity, that the demand for the information is not motivated by a desire to suppress free speech, and that the government’s interest in pursuing the investigation outweighed the account holder’s interest in free speech.
Having no obvious defense to the lawsuit, DHS responded by withdrawing the summons. That response, tantamount to an admission that it had no legal justification for issuing the summons in the first place, prompted Twitter to dismiss its lawsuit.
Twitter’s response is a victory for freedom of speech, but it is also a victory for @ALT_USCIS. Before the lawsuit was filed, the account had about 30,000 followers. According to NPR, the following had grown to 100,000 as a result of publicity surrounding the lawsuit.
The Need for Legal Advice
The First Amendment issues at stake here had to do with compelling the disclosure of an identity that was sheltered by anonymity. The issues may be different when the government is aware of an employer’s identity.
Criticizing an employer (even a federal agency) may be a violation of work rules that may subject an employee to discipline. Whether the First Amendment protects against that discipline will depend on the facts of the case.
In addition, whistleblower statutes typically provide protection only when information is disclosed to appropriate authorities, as opposed to disclosing misconduct via a Twitter account. Government employees who may be subject to discipline for criticizing their employer, either because they were unmasked or because they voiced criticism in their own names, should obtain legal advice.