Twitter and Electronic Surveillance: Or How I Learned to Stop Worrying and Love Big Brother

Posted by: Emily Weiss

Big BrotherOn April 6th, 2017, online microblogging site giant Twitter filed a complaint against the U.S. Department of Homeland Security. Twitter sought the court’s aid in preventing the U.S. Customs and Border Patrol from obtaining information about one of its users – the user who ran the account @ALT_USCIS. Twitter argued that the summons that CBP was using to obtain the information was inapposite, and did not apply to the kind of information CBP actually sought. As a result, Twitter argued, the summons violated the First Amendment and Twitter did not have to comply with it.

Less than a day later, DHS and CBP dropped the summons for information, and Twitter likewise dropped the suit. The American Civil Liberties Union called this a “big victory for free speech and the right to dissent.” But was it? This is not the beginning – nor the end – to Twitter’s apparent commitment to protect its user’s privacy.

Twitter’s 2014 Case for the First Amendment

This is not the first time that Twitter attempted to use First Amendment arguments against government requests for information. Twitter filed a complaint against the U.S. Department of Justice, wanting leave to disclose to the public more information about the surveillance requests it was getting from the United States government. Twitter wanted to publish “more accurate numbers” about the volume of surveillance requests it received. Under the current requirements from the DOJ, exact numbers cannot be revealed, and only disclosed in ranges of 500. Twitter argued that this was a restraint on its First Amendment rights.

The Justice Department’s stance was that such information was vital to national security interests, and thus, they were justified in keeping companies like Twitter from disclosing the number and nature of the surveillance requests. The DOJ filed for dismissal, arguing that national security justified such restraints. In May of 2016, the Northern District Court of California partially dismissed the complaint. The Court granted Twitter leave to amend the complaint, but dismissed it because Twitter did not show enough to combat the government’s assertion that the information was “not properly classified by the government.

Mechanisms of Surveillance

It is important to understand the mechanism with which the government went about obtaining this user information through Twitter. The government used things like national security letters (NSLs) and Foreign Intelligence Surveillance Act (or FISA) requests. These are two well-accepted ways the government can obtain information about online users from online service providers like Twitter. In the 2014 lawsuit, Twitter wasn’t complaining about the mechanism that the government was using to obtain their information. Twitter was complaining that it couldn’t more fully tell the public about the number and kind of requests for surveillance they were getting from the government.

NSLs are authorized under 18 U.S.C. 2709. In practice, the FBI can send an NSL and subpoena record information (not the content) without judicial overview, and require the recipient to not disclose the fact that they have received an NSL at all. Once an entity receives such a request, they can petition for a court to set the request aside if it is “unreasonable, oppressive, or otherwise unlawful.” The Director of the FBI is the person who can submit such requests to entities for records.

FISA warrants are slightly different. The Executive can authorize electronic surveillance without a warrant through FISA if the request is simply for records, and not contents of communications. If communications are desired, then the Attorney General or the President can ask the Foreign Intelligence Surveillance Court, or FISC, for a warrant. Warrants must not be too broad if they are to be applied to U.S. citizens, and FISC often redacts their court orders granting such warrants.

However, Twitter’s complaint did not allege that the government used an NSL or a FISA request. Twitter alleged that it received an administrative summons from Customs and Border Patrol (CBP). This summons was authorized under 19 U.S.C. 1509, a completely different act than FISA. This statute authorizes the U.S. Customs Service to subpoena records “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.” Twitter’s summons requested “all records” relating to @ALT_USCIS, including “User names, account login, phone numbers, mailing addresses, and I.P. addresses.”

Twitter filed a complaint shortly after receiving the summons. In it, Twitter argued that the statute did not cover the kind of information that CBP was seeking and was an abuse of the law. The user names, account information, and I.P. addresses of the @ALT_USCIS account were not related to importation of goods, or determining the liability of taxes and fees. Twitter also argued that the kind of information CBP was requesting violated the First Amendment. It argued that the kind of information sought, which did include I.P. addresses, could potentially reveal the identity of the user who ran the @ALT_USCIS account.

Why the CBP Summons?

This raises the question: why use this kind of administrative summons when the other avenues are available? Twitter’s abuse of law assertion seems to hold some water, especially seeing as the government dropped the summons almost immediately. Other commentators also remarked that Twitter might have a strong case. Given Twitter’s history of fighting against disclosure restrictions for its users, why did CBP decide to go this route when it seems quite clear they would lose?

It is not clear that the kind of information CBP sought would be very different from the kind of information the FBI and the Attorney General can get through NSLs and FISA warrants. In fact, FISA warrants can be even more expansive than NSLs or the CBP summons, even though they require judicial approval. An NSL would be able to obtain the same kind of records request and have the additional benefit (for the government) of being entirely confidential. The NSL would not require judicial approval, like the CBP summons, and the statutory authority for it would be more in line than the CBP’s.

However, it is also unclear that the White House even knew of this particular summons. Given the nature of the Twitter account itself, which was very critical of the current administration, and the Customs and Immigration Service in particular, it’s possible that the U.S. Customs and Border Patrol wanted to take care of a particular Twitter account on their own, as easily as they could. It’s also possible that disorganization after the change of administration played a role in this choice of summons. At any rate, all of these reasons at this point are clearly within the realm of speculation. But it is worth noting that if the government really wanted the information it sought in the CBP summons, it clearly has avenues that it can use (and Twitter will be largely unable to fight back).

In sum, this is clearly not the end of the U.S. Government’s electronic surveillance requests of Twitter. The most recent lawsuit, though it gave the company a big public relations boost among its users and free speech advocates, is not a future barrier to any of the government’s current ability to subpoena records from Twitter or other online service providers. That challenge will have to be borne by Twitter’s lawsuit with the Department of Justice. The case is currently pending a ruling on the Department of Justice’s motion for summary judgment.

Twitter’s fight to protect its users under the First Amendment is far from over, and this short-lived complaint will most likely do almost nothing to further that fight, despite the swirl of press coverage that surrounded it.

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