By Lena Williams
It was shaping up to be a major courtroom showdown between the federal government and Twitter in a battle over freedom of speech.
The US Customs and Border Protection Service was demanding that Twitter hand over the identity of and information about an anonymous account that had posted messages critical of the Trump Administration.
The person or persons behind the account claimed to be a current employee of the Citizenship and Immigration Services and had regularly posted messages at variance with White House policy.
Border Protection issued a summons to Twitter in March ordering the online news and social network service to unmask the user or users behind the @ALT_USCIS or “ALT Immigration” account or Twitter would find itself in a federal court.
If a court battle was what the government was looking for, that’s exactly what it got.
On April 6, Twitter filed suit against the agency and the Department of Homeland Security, which oversees Custom and Border Protection, arguing the request was unlawful and that unmasking a social media user criticizing the government on matters of public concern would violate free speech rights.
“Defendants may not compel Twitter to disclose information regarding the real identities of these users without first demonstrating that some criminal or civil offense has been committed, that unmasking the users’ identity is the least restrictive means for investigating that offense,” lawyers for the plaintiffs claimed in their suit filed in U.S. District Court in Northern California.
Twitter’s suit also demanded the government show that “this information is not motivated by a desire to suppress free speech, and that the interests of pursuing that investigation outweigh the important First Amendment rights of Twitter and its users.”
Officials at Twitter argued the “defendants have not come close to making any of those showings.”
Maybe it was the persuasiveness of the plaintiffs’ argument. Perhaps the Trump administration didn’t want to get bogged down in a lengthy First Amendment court battle against a popular social media network and its millions of users, among them President Trump. Or maybe, for once, some cooler heads within the federal bureaucracy prevailed and convinced the agency it didn’t have a legal leg to stand on.
Whatever the reason might have been, Customs and Border Protection withdrew it summons one day after the Twitter suit was filed. Officials at the agency refused to comment despite numerous media inquiries.
It may have been one small victory for Twitter but it was one giant leap for the First Amendment right to free speech.
The case had drawn the attention of free speech advocates, civil liberties groups and Twitter users fearing the worst if the government had prevailed.
“The speed with which the government buckled shows just how blatantly unconstitutional its demand was in the first place,” said Esha Bhandari, an attorney for the American Civil Liberties Union, which said it would represent the anonymous holder or holders of the account. “The anonymity that the First Amendment guarantees is often most essential when people criticize the government, and this free speech right is as important today as ever.”
This wasn’t the first time the government has clashed with technology companies and social media networks like Twitter, Facebook, Google and Apple over privacy issues:
- Last February, Apple filed two separate federal lawsuits that would have compelled the company to give the government access to iPhone security passcodes to aid federal officials in a drug trafficking case in Brooklyn and to data on an iPhone used by one of the killers in the San Bernadino terrorists attack in December 2015. The cases were dropped after the Justice Department was able to independently access the phones.
- Last April, Microsoft sued the Justice Department to overturn a federal law that prevented the company from telling thousands of customers when their information had been sought by federal agents. On Feb. 9. 2017, a U.S. District Judge in Seattle refused the government’s request to throw out the lawsuit. The judge ruled that allegations in the case would “impermissibly burden Microsoft’s First Amendment rights.” Apple, Google and Amazon signed amicus briefs in support of Microsoft.
- The Electronic Frontier Foundation filed a Freedom of Information Act lawsuit last April against the Justice Department to shed light on whether the government has ever used secret court orders to force technology companies like Apple and Google to decrypt their customers’ private communications.
The Twitter case grew out of the Trump administration’s crackdown on the use of social media by several federal agencies like the National Park Service and the Environmental Protection Agency. Immediately after Trump’s inauguration, the White House issued orders restricting, and in some instances blocking, what agencies like the Park Service and the EPA could say or post on social media platforms.
The administration’s orders led to a wave of alt-accounts, like @Alt-Labor, @blm_alt–referencing the Bureau of Land Management, @ALT_USCIS and @RogueEPAstaff, which owners of the accounts claim to be current and/or former federal employees and others with special insights about the agencies. The sites provided views and commentary that vigorously opposed or were an “alternative” to the official actions and policies of the new administration, including the controversial immigration ban.
In its suit, lawyers for Twitter said the summons would set a precedent that could have a “grave chilling effect” on others voicing opposition to White House policies.
“Federal employees have every right to express their disagreement the same as anyone else in this country,” said Debra D’Agostino, an employment attorney with the Federal Practice Group told Nextgov, an information resource for federal technology decision-makers. “I think people are using the alt accounts because they’re afraid, and apparently rightfully so, but they don’t have to post anonymously.”
Because the summons was withdrawn, Twitter voluntarily dismissed, without prejudice, all claims against the defendants.
Twitter and lawyers for the company declined to comment. They didn’t have to. Their legal victory spoke volumes.