Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 1 of 25 1 2 3 4 5 6 7 SETH P. WAXMAN (pro hac vice pending) seth.waxman@wilmerhale.com PATRICK J. CAROME (pro hac vice pending) patrick.carome@wilmerhale.com ARI HOLTZBLATT (pro hac vice pending) ari.holtzblatt@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 8 TWITTER, INC., 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 Defendants. COMPLAINT 22 Plaintiff Twitter, Inc. (“Twitter”), by and through its attorneys, hereby alleges: INTRODUCTION 24 25 Case No. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner, U.S. Customs and Border Protection; STEPHEN P. CARUSO, in his official capacity as Special Agent In Charge, U.S. Customs and Border Protection; and ADAM HOFFMAN, in his official capacity as Special Agent, U.S. Customs and Border Protection, 21 23 Attorneys for Plaintiff TWITTER, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 9 10 MARK D. FLANAGAN (CA SBN 130303) mark.flanagan@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 1. This is an action to prevent the U.S. Department of Homeland Security (“DHS”), 26 U.S. Customs and Border Protection (“CBP”), and the individual Defendants from unlawfully 27 abusing a limited-purpose investigatory tool to try to unmask the real identity of one or more 28 persons who have been using Twitter’s social media platform, and specifically a Twitter account 1 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 2 of 25 1 named @ALT_USCIS, to express public criticism of the Department and the current 2 Administration. The rights of free speech afforded Twitter’s users and Twitter itself under the 3 First Amendment of the U.S. Constitution include a right to disseminate such anonymous or 4 pseudonymous political speech. In these circumstances, Defendants may not compel Twitter to 5 disclose information regarding the real identities of these users without first demonstrating that 6 some criminal or civil offense has been committed, that unmasking the users’ identity is the least 7 restrictive means for investigating that offense, that the demand for this information is not 8 motivated by a desire to suppress free speech, and that the interests of pursuing that investigation 9 outweigh the important First Amendment rights of Twitter and its users. But Defendants have 10 not come close to making any of those showings. And even if Defendants could otherwise 11 demonstrate an appropriate basis for impairing the First Amendment interests of Twitter and its 12 users, they certainly may not do so using the particular investigatory tool employed here—which 13 Congress authorized solely to ensure compliance with federal laws concerning imported 14 merchandise—because it is apparent that whatever investigation Defendants are conducting here 15 does not pertain to imported merchandise. 16 2. In the days and weeks following the inauguration of President Donald J. Trump, a 17 new and innovative class of American speakers emerged on Twitter’s ubiquitous online 18 platform: speakers who purport to be current or former employees of federal agencies, or others 19 with special insights about the agencies, who provide views and commentary that is often 20 vigorously opposed, resistant, or “alternative” to the official actions and policies of the new 21 Administration. Typically, these so-called “alternative agency” accounts are named and self- 22 described by their users in a manner that both (a) identifies the particular federal agency that the 23 user seeks primarily to criticize and with which the user purports to have significant knowledge, 24 and (b) proclaims that the user is not an official voice or spokesperson for the agency. Examples 25 of these accounts include @alt_labor, which purports to provide informed but unofficial 26 commentary on the U.S. Department Labor, and @blm_alt, which does the same for the federal 27 Bureau of Land Management. Dozens of such accounts have sprung up, and many of them are 28 actively used to disseminate criticism of the Administration and its policies. Many of these 2 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 3 of 25 1 accounts have attracted large audiences of other Twitter users (“followers”), often numbering in 2 the tens of thousands or more. 3 3. Like many Twitter users, those who speak through these “alternative agency” 4 accounts do so pseudonymously, often going to considerable lengths to avoid disclosing their 5 real identities. The motivations these users have for preserving their anonymity presumably 6 include a desire to speak freely and without the fear of negative consequences that may flow 7 from being identified as the source of controversial views and commentary concerning the 8 Administration and its agencies. Such fears are likely to be especially great for users of 9 “alternative agency” accounts who are currently employed by the very agency that is a principal 10 target of the commentary, in light of the retaliation, harassment, or even loss of livelihood that 11 might occur if their real identities became known to their superiors. 12 4. One such “alternative agency” account is @ALT_USCIS. Like other accounts of 13 this sort, @ALT_USCIS claims to be run by one or more current government employees—in this 14 case, employees of the United States Citizenship and Immigration Services (“USCIS”), a unit 15 within the Defendant DHS. And as with other such accounts, the person or persons who 16 established and speak through @ALT_USCIS have identified themselves only by means of this 17 pseudonymous account name. To the best of Twitter’s knowledge, they have not disclosed their 18 real identities in any of their public communications through this account. 19 5. In the just over two months since it was created, @ALT_USCIS has frequently 20 criticized the immigration policies of the new Administration, highlighted what the user views as 21 a history of waste and mismanagement within USCIS and DHS, and publicized facts that the 22 account’s users portray as casting doubt on Administration policies. 23 6. The Defendants are now threatening the anonymity of the person(s) speaking 24 through the @ALT_USCIS account. Specifically, on March 14, 2017, they issued and delivered 25 to Twitter an administrative summons (the “CBP Summons”) demanding that Twitter provide 26 them records that would unmask, or likely lead to unmasking, the identity of the person(s) 27 responsible for the @ALT_USCIS account. The summons was issued by a Special Agent in 28 3 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 4 of 25 1 Charge within U.S. Customs and Border Protection, another unit of DHS. The CBP Summons is 2 unlawful and must be enjoined for two reasons. 3 7. First, the sole statutory authority CBP invoked in issuing the summons—19 4 U.S.C. § 1509—authorizes the agency to compel production of only a narrow class of records 5 relating to the importation of merchandise. But CBP’s investigation of the @ALT_USCIS 6 account plainly has nothing whatsoever to do with the importation of merchandise into the 7 United States. Section 1509 thus provides CBP no power to compel Twitter to reveal 8 information pertaining to the identity of the individual(s) behind the @ALT_USCIS account. 9 8. Second, permitting CBP to pierce the pseudonym of the @ALT_USCIS account 10 would have a grave chilling effect on the speech of that account in particular and on the many 11 other “alternative agency” accounts that have been created to voice dissent to government 12 policies. The Supreme Court has long recognized the extraordinary value of the kind of speech 13 emanating from these accounts—pure political speech criticizing government policies and 14 highlighting government waste and mismanagement. And the Court has likewise recognized that 15 anonymity is often essential to fostering such political speech where, as here, the speaker could 16 face retaliation or retribution if his or her real identity were linked to the speech. In this context, 17 the CBP Summons must be declared unlawful and enjoined absent an evidentiary showing by 18 Defendants that some criminal or civil offense has been committed, that unmasking the users’ 19 identity is the least restrictive means for investigating that offense, that the demand for this 20 information is not motivated by a desire to suppress free speech, and that the interests of 21 pursuing that investigation outweigh the important free speech rights of Twitter and its users. 22 Defendants have not even attempted to meet that burden. 23 24 9. this Court declare the summons unlawful and enjoin its enforcement. 25 26 For these and other reasons discussed below, Twitter respectfully requests that JURISDICTION AND VENUE 10. This Court has jurisdiction under 28 U.S.C. § 1331 because this action arises 27 under the First Amendment to the U.S. Constitution, the Administrative Procedure Act (“APA”), 28 the Tariff Act of 1930, as amended, and other Federal statutes. 4 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 5 of 25 1 2 3 11. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 and the APA, 5 U.S.C. § 706. 12. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) and (e)(1). A 4 substantial part of the events giving rise to this claim occurred in this District, and each 5 Defendant is an officer or agency of the United States sued in his or its official capacity. 6 7 PARTIES 13. Twitter is a Delaware corporation with its principal place of business at 1355 8 Market Street, San Francisco, CA 94103. Twitter operates a global platform for self-expression 9 and communication, with the mission of giving everyone the power to create and share ideas and 10 information instantly. Twitter’s more than 300 million active monthly users use the platform to 11 connect with others, express ideas, and discover new information. Hundreds of millions of short 12 messages (known as “Tweets”) are posted on Twitter every day. Twitter provides these services 13 at no charge to its users. 14 14. The U.S. Department of Homeland Security is a cabinet department of the United 15 States federal government. Its stated missions include antiterrorism, border security, 16 immigrations and customs, and disaster prevention and management. 17 15. The U.S. Customs and Border Protection is an agency within DHS. It is 18 responsible for managing and controlling the border of the United States, including with respect 19 to import customs, immigration, border security, and agricultural protection. 20 16. John F. Kelly is the Secretary of DHS. He is sued in his official capacity. 21 17. Kevin K. McAleenan is the Acting Commissioner of CBP. He is sued in his 22 official capacity. 23 18. 24 official capacity. 25 19. 26 Stephen P. Caruso is a special agent in charge within CBP. He is sued in his Adam Hoffman is a special agent within the Office of Professional Responsibility of CBP. He is sued in his official capacity. 27 28 5 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 6 of 25 1 FACTUAL BACKGROUND 2 The Emergence And Popularity Of “Alternative Agency” Accounts On The Twitter Platform 3 20. President Donald J. Trump was inaugurated on January 20, 2017. That day the 4 official Twitter account of the National Park Service retweeted an image comparing the crowd 5 size at President Trump’s inauguration to the apparently larger crowd size at President Obama’s 6 2009 inauguration. 7 21. As the public began to remark on the agency’s retweet, the National Park Service 8 abruptly shut down its own account and sent an internal email to agency employees explaining 9 that “[a]ll bureaus and the department have been directed by [the] incoming administration to 10 shut down Twitter platforms immediately until further notice.” And President Trump called the 11 acting director of the National Park Service to complain about the agency retweeting an 12 unflattering comparison of his inaugural crowd size. The day after the inauguration, the Park 13 Service reactivated its official account and Tweeted an apology for “the mistaken [retweets] 14 from our account yesterday.” 1 15 22. Four days after the inauguration, on January 24, 2017, the official Twitter account 16 for Badlands National Park began to Tweet a series of statements about climate change from the 17 @BadlandsNPS account. 18 19 20 21 22 23 24 25 26 1 27 28 Lisa Rein, Interior Department Reactivates Twitter Accounts After Shutdown Following Inauguration, WASH. POST (Jan. 21, 2017), https://www.washingtonpost.com/news/powerpost /wp/2017/01/20/interior-department-banned-from-twitter-after-retweet-of-smaller-than-usualtrump-inauguration-crowd/?utm_term=.4e6d99996772. 6 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 7 of 25 1 23. Press reports described the @BadlandsNPS account as having gone “rogue,” and 2 the National Park Service explained that a former employee who still had access to the 3 @BadlandsNPS account had been responsible for the Tweets. The Park Service quickly 4 removed the unauthorized Tweets and blocked the former employee’s access. 5 24. Shortly thereafter, a new wave of Twitter accounts began to appear on the 6 Twitter platform: self-identified as expressing “alternative” ideas, views, and information about 7 a particular federal agency. Although seemingly inspired by the National Park Service’s 8 inauguration day Tweet or by the short-lived takeover of the @BadlandsNPS account, these new 9 alternative agency accounts were not “official” accounts of any government agency. Instead, 10 they operated under names such as @blm_alt, @alt_labor, and @RogueEPAstaff. Within 11 weeks, dozens of such accounts had been created, many attracting tens of thousands of followers 12 or more. In some cases, multiple alternative agency accounts appeared for a single agency. 13 25. While some of these alternative agency accounts appear to be run by former 14 federal employees or activists with no connection to the government, many of the accounts 15 claim, through their user-created account descriptions or the content of their Tweets, to be 16 administered by individuals who are currently employed by the federal agency after which the 17 account is named. 18 26. These self-designated alternative agency accounts have tended to challenge views 19 of the Administration and its policies, often (but not always) focusing on the policies of the 20 particular agency for which the account was named. The styles of expression emanating from 21 these accounts vary greatly. 22 23 24 25 26 27 28 7 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 8 of 25 1 2 27. Some accounts appear to equate the simple act of broadcasting facts as an expression of dissent. 3 4 5 6 7 8 9 10 11 12 13 14 15 28. The accounts often have expressed disagreement with specific policies of the official agency. 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 9 of 25 1 29. One of the many Tweets from the @alt_labor account publicized a letter signed 2 by 600 current and former Labor Department employees opposing the confirmation of the 3 President’s nominee for Labor Secretary, Andrew Puzder. 4 5 6 7 8 9 10 11 12 13 14 30. speaking in a self-identifying manner (for example, by selecting a user name that matches or is similar to the user’s real name) or pseudonymously (through an account that has a user name and user description that do not disclose the speaker’s real identity). 15 16 17 18 19 20 21 22 23 24 25 Like many online platforms, Twitter’s platform offers users the choice between 31. Pseudonymity of the speaker(s) is a defining feature of the alternative agency accounts that have recently emerged on the Twitter platform. While the persons who establish and use these accounts sometimes provide highly general descriptions of themselves (for example, by stating in the account’s biography that the user or users work or previously worked for a particular agency), they typically refrain from revealing their real names. The users appear to view and depend on preservation of their anonymity as crucial to their ability to express information and ideas that are contrary to the policies and objectives of the Administration and its agencies. Preserving anonymity appears to be especially important for users of these alternative agency accounts who are current federal employees, given the risk that such users could face retaliation, sanctions, or other negative repercussions from their federal employer if they were identified as the source of criticism of their agency. 2 26 27 28 2 Alleen Brown, Rogue Twitter Accounts Fight To Preserve The Voice Of Government Science, THE INTERCEPT (Mar. 11, 2017), https://theintercept.com/2017/03/11/rogue-twitter-accountsfight-to-preserve-the-voice-of-government-science (reporting that several “alternative agency” accounts are administered by current agency employees and that those employees wish to 9 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 10 of 25 The @ALT_USCIS Twitter Account 1 32. 2 3 This case concerns one particular alternative agency account that, like many others, was created in late January 2017: @ALT_USCIS. 33. 4 As of the time Twitter received the CBP Summons, the public, user-provided 5 description of the @ALT_USCIS account described its user or users as “[o]fficial inside 6 resistance.” As of then and now, the account description prominently declares that the account is 7 “[n]ot [expressing] the views of DHS or USCIS.” The account’s profile image plays off 8 USCIS’s official logo (displayed side-by-side below), further indicating a correspondence or 9 relationship to the agency, albeit one that is unofficial, ideologically or politically averse, and/or 10 “rogue.” 3 Tweets from this account use hashtags such as “#altgov,” expressly self-identifying as 11 part of the broader alternative agency movement. 12 13 14 15 16 34. 17 On several occasions, Tweets from the @ALT_USCIS account have claimed that 18 the person speaking through the account is a current federal employee of the United States 19 Citizenship and Immigration Services (USCIS), an entity that reportedly has 19,000 employees 20 and contractors. But beyond purporting to identify his or her employer, the person(s) using the 21 account have chosen to remain pseudonymous. 35. 22 23 In two months of existence, the @ALT_USCIS account has attracted over 32,000 followers and has issued thousands of Tweets. 24 25 26 27 preserve their anonymity “out of fear of workplace retaliation and pressure to shut down their accounts”). 3 28 The accountholder reworked the account’s description and profile image at some point after Twitter received the CBP Summons. The profile image displayed above is as it was when the summons was received. 10 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 11 of 25 1 36. The @ALT_USCIS account has expressed dissent in a range of different ways. 2 One of the account’s first Tweets asserted a fact about illegal immigration in the United States 3 that the author apparently believed cast doubt on the Administration’s immigration policy. 4 5 6 7 8 9 10 11 37. The @ALT_USCIS account has often criticized immigration policies with which 12 the speaker apparently disagrees. The account was created on nearly the same day that the 13 President issued his original immigration Executive Order. Tweets from the account have 14 repeatedly criticized the Order—often referring to it as the “#MuslimBan.” Other Tweets have 15 taken aim at the President’s proposal to build a wall along the U.S.-Mexico border. For example, 16 on March 11, 2017, the account used news that a fence-jumper had trespassed onto the White 17 House grounds to argue that the Administration’s proposed border fence will be ineffective. 18 19 20 21 22 23 24 25 38. Tweets from the @ALT_USCIS account have also purported to shine a light on 26 historical and recent mismanagement at USCIS. For example, on March 12—two days before 27 issuance of the CBP Summons challenged in this suit—a series of Tweets from the account 28 11 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 12 of 25 1 decried what the author described as waste, inefficiency, and poor management in the agency’s 2 attempts to set up a new automated system for processing immigration applications. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 39. The account has regularly leveled criticism at U.S. Customs and Border Protection—the agency that issued the summons challenged by this lawsuit. 18 19 20 21 22 23 24 25 26 27 28 40. The account has also frequently tweeted disagreement with the current Administration’s policies on subjects other than immigration—expressing opposition to efforts in 12 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 13 of 25 1 Congress to repeal the Affordable Care Act and urging Democrats to resist confirmation of 2 Supreme Court nominee Neil Gorsuch, among many other issues. 3 41. Occasionally, the account has highlighted USCIS or DHS policies that the speaker 4 appears to support. For example, the day DHS Secretary Kelly announced that the Department 5 would continue to exempt from removal individuals covered by the prior Administration’s 6 Deferred Action for Childhood Arrivals policy (DACA), the account issued the following Tweet. 7 8 9 10 11 12 13 14 U.S. Customs And Border Protection Orders Twitter To Produce Records That Would Strip The @ALT_USCIS Account Of Anonymity 15 16 42. On March 14, 2017, Defendant Adam Hoffman, an agent within U.S. Customs 17 and Border Protection, transmitted to Twitter by fax a summons, ordering Twitter to produce 18 certain records pertaining to the @ALT_USCIS account. The CBP Summons invoked as 19 authority 19 U.S.C. § 1509. It was signed by Defendant Stephen P. Caruso, a CBP Special 20 Agent in Charge based in Miramar, Florida. A true and accurate copy of the CBP Summons, in 21 the form it was received by Twitter, is attached as Exhibit A. 22 43. The CBP Summons states that Twitter is “required” to “produce[] for inspection” 23 “[a]ll records regarding the [T]witter account @ALT_USCIS to include, User names, account 24 login, phone numbers, mailing addresses, and I.P. addresses.” The purpose of this request 25 appears to be, and the effect of Twitter’s complying with it likely would be, to enable or help to 26 enable Defendants to pierce the anonymity of the person or persons who established and use the 27 @ALT_USCIS account. 28 13 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 14 of 25 1 44. The CBP Summons warned Twitter that “[f]ailure to comply with this summons 2 will render you liable to proceedings in a U.S. District Court to enforce compliance with this 3 summons as well as other sanctions.” 4 45. The CBP Summons ordered Twitter to produce the records to a CBP office in 5 Washington D.C. by 11:45 A.M. on March 13, 2017—the day before the CBP Summons was 6 faxed to Twitter. 7 46. The CBP Summons states generically that “production of the indicated records is 8 required in connection with an investigation or inquiry to ascertain the correctness of entries, to 9 determine the liability for duties, taxes, fines, penalties, or forfeitures, and/or to ensure 10 compliance with the laws or regulations administered by CBP and ICE.” Beyond that boilerplate 11 language, the CBP Summons provides no justification for issuance of a summons targeting the 12 @ALT_USCIS account. 13 14 15 47. The CBP Summons further “requested”—but did not order or otherwise compel— Twitter “not to disclose the existence of this summons for an indefinite period of time.” 48. Notwithstanding the request on the face of the CBP Summons that Twitter not 16 disclose the existence of the CBP Summons to anyone, a “Summons Notice” included in the 17 CBP Summons describes a procedure whereby the subject of the summons (i.e., the person 18 whose “business transactions or affairs” are purportedly being investigated) supposedly could 19 “object to the examination” of the requested records by “advis[ing] the person summoned [i.e. 20 Twitter], in writing, not to comply with the summons” and “send[ing] a copy of that notice by 21 registered or certified mail to the CBP Officer … who issued the summons.” To be effective, 22 any such objection would have to be sent “not later than the” deadline set by the CBP Summons 23 for compliance—which, again, had already passed by the time the CBP Summons was served on 24 Twitter. Neither the CBP Summons itself, nor the statute that supposedly authorizes issuance of 25 the summons (i.e., 19 U.S.C. § 1509), nor the regulations implementing that statute describe any 26 procedure for Twitter to object to compliance with the summons. 27 28 49. On March 28, 2017, counsel for Twitter contacted Defendant Hoffman to raise concerns regarding the request not to provide notice to the user and the legal basis for seeking 14 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 15 of 25 1 information about the identified account using a summons issued under 19 U.S.C. § 1509. 2 Defendant Hoffman advised counsel for Twitter that CBP did not want the user notified and that 3 he would discuss notice with his supervisors. With regard to the legal basis for the summons, 4 Defendant Hoffman stated vaguely that he is conducting an investigation. But he did not identify 5 any law or laws that he believed had been broken or point to any evidence substantiating any 6 such belief—such as particular Tweets that he believes were unlawful. Defendant Hoffman took 7 the position that the summons was an appropriate investigative tool, but he did not provide any 8 specifics as to how a summons issued under 19 U.S.C. § 1509 could be an appropriate means for 9 CBP’s Office of Professional Responsibility to be conducting this particular investigation. In 10 fact, to the limited extent he did explain the nature of the investigation, it seemed to confirm that 11 the investigation had nothing to do with obtaining records to assess whether appropriate duties 12 and taxes had been paid on imported merchandise. 13 50. Twitter advised Defendant Hoffman that, unless he or his agency obtained a court 14 order under the federal Stored Communications Act, 18 U.S.C. § 2705, directing Twitter not to 15 disclose the CBP Summons to the @ALT_USCIS accountholder(s), Twitter would, in 16 accordance with its standard practices, notify the accountholder(s) of the existence and content of 17 the CBP Summons. On March 31, 2017, Defendant Hoffman sent Twitter an email confirming 18 that no such court order would be obtained. On April 2, 2017, Twitter stated in a response to 19 Defendant Hoffman that it intended to notify the accountholder(s) the next day about the CBP 20 Summons. 21 51. On April 4, 2017, Twitter notified the @ALT_USCIS accountholder(s) about the 22 existence and contents of the CBP Summons. At approximately the same time, Twitter also 23 informed Defendant Hoffman of its intention to challenge the CBP Summons in court if it was 24 not withdrawn within 48 hours. Later that day, counsel for Twitter sent Defendant Hoffman an 25 email elaborating the bases for Twitter’s legal objections to the CBP Summons—namely that the 26 summons falls outside the statutory parameters of 19 U.S.C. § 1509 and infringes on the First 27 Amendment rights of Twitter’s users and Twitter itself—and reiterating Twitter’s intention to 28 sue absent withdrawal of the summons. 15 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 16 of 25 1 2 52. As of today’s date, Defendants have not notified Twitter of any intent to withdraw the CBP Summons. COUNT I (19 U.S.C. § 1509; Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; APA, 5 U.S.C. § 706) 3 4 5 THE SUMMONS EXCEEDS THE SCOPE OF CBP’S AUTHORITY UNDER 19 U.S.C. § 1509 6 53. Plaintiff hereby incorporates by reference paragraphs 1-52 as if set forth fully 54. The summons is unlawful because it demands production of records that CBP is 7 herein. 8 9 not authorized to obtain under 19 U.S.C. § 1509. 10 55. The summons exceeds the scope of CBP’s authority under 19 U.S.C. § 1509 for 11 two reasons. First, 19 U.S.C. § 1509 authorizes CBP to obtain documents only for investigations 12 and inquiries relating to the importation of merchandise. Second, even if CBP issued the 13 summons for a proper purpose, the summons seeks production of records that are not of the 14 narrowly limited type that CBP is authorized to obtain under 19 U.S.C. § 1509. These two 15 reasons are explained more fully below. 16 56. First, 19 U.S.C. § 1509 confers authority on the Secretary (or a delegate at or 17 above the rank of district director or special agent in charge) to compel disclosure of records only 18 in connection with “any investigation or inquiry conducted for the purpose of ascertaining the 19 correctness of any entry, for determining the liability of any person for duty, fees and taxes due 20 or duties, fees and taxes which may be due the United States, for determining liability for fines 21 and penalties, or for insuring compliance with the laws of the United States administered by the 22 United States Customs Service.” 19 U.S.C. § 1509(a). The first three items on the list clearly 23 relate narrowly to imports, and the meaning of the fourth term is “cabin[ed]” by the first three. 24 See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (applying “the principle of noscitur a 25 sociis—a word is known by the company it keeps—to ‘avoid ascribing to one word a meaning so 26 broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the 27 Acts of Congress.’” (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995))). 28 16 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 17 of 25 1 57. Defendants could not plausibly establish that they issued the CBP Summons— 2 which demands “[a]ll records regarding the [T]witter account @ALT_USCIS to include User 3 names, account login, phone numbers, mailing addresses, and I.P. addresses”—in any 4 investigation or inquiry relating to the import of merchandise. 5 58. Second, § 1509 does not authorize the Defendants to compel production of the 6 account-related records that the summons demands. The Secretary or his delegate can compel 7 the production of only records that fall within a narrow category defined in 15 U.S.C. 8 § 1509(d)(1)(A). See 15 U.S.C. § 1509(a)(2)(D) (“[T]he Secretary ... may … summon … any … 9 person he may deem proper … to produce records, as defined in subsection (d)(1)(A).”). 10 59. Subsection 1509(d)(1)(A) limits the “records” whose production may be 11 permissibly compelled through a summons to those (1) that are “required to be kept under 12 section 1508 of this title” and (2) “regarding which there is probable cause to believe that they 13 pertain to merchandise the importation of which into the United States is prohibited.” The 14 records that the CBP Summons demands Twitter to disclose meet neither of these criteria. 15 60. Section 1508 requires importers to maintain certain records relating to their 16 activity of importing merchandise. See United States v. Frowein, 727 F.2d 227, 233 (2d Cir. 17 1984) (“Section 1508 … imposes recordkeeping requirements on those who import or cause 18 goods to be imported.”). Specifically, the entities that must maintain records under section 1508 19 are limited to the following: any “owner, importer, consignee, importer of record, entry filer, or 20 other party who—(A) imports merchandise into the customs territory of the United States, files a 21 drawback claim, or transports or stores merchandise carried or held under bond, or 22 (B) knowingly causes the importation or transportation or storage of merchandise carried or held 23 under bond into or from the customs territory of the United States,” 19 U.S.C. § 1508(a)(1); or 24 any “agent of any party described in paragraph (1),” id. § 1508(a)(2); or any “person whose 25 activities require the filing of a declaration of entry, or both,” id. § 1508(a)(3). The records 26 Section 1508 requires these entities to maintain are limited to records that both “pertain to any 27 such activity, or to the information contained in the records required by this chapter in 28 17 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 18 of 25 1 connection with any such activity” and “are normally kept in the ordinary course of business.” 19 2 U.S.C. § 1508(a)(3). 3 61. Subsection 1509(d)(1)(A)(ii) likewise limits the scope of records whose 4 production CBP may compel pursuant to a summons to records relating to the importation of 5 merchandise—specifically, records “pertain[ing] to merchandise the importation of which into 6 the United States is prohibited.” 7 62. The CBP Summons plainly does not request records relating to the importation of 8 merchandise. It requests that Twitter produce information that pertains to the identity of the 9 person(s) who established and use the @ALT_USCIS account. And it is utterly implausible that 10 Defendants’ interest in the person(s) who established and use the @ALT_USCIS account stems 11 from their importation of merchandise into the United States. 12 63. The CBP Summons also violates the Stored Communications Act (“SCA”), 13 18 U.S.C. § 2701 et seq., which “protects individuals’ privacy and proprietary interests,” 14 “reflect[ing] Congress’s judgment that users have a legitimate interest in the confidentiality of 15 communications in electronic storage at a communications facility.” Theofel v. Farey-Jones, 359 16 F.3d 1066, 1072 (9th Cir. 2003). The SCA establishes legal processes that government agencies 17 must follow in order to obtain certain types of information from a service provider such as 18 Twitter, which have not been followed here. The basic subscriber information the CBP 19 Summons seeks—such as the user’s name and address—can be obtained “us[ing] an 20 administrative subpoena authorized by a Federal or State statute.” 18 U.S.C. § 2703(c)(2). But 21 the CBP Summons is not a valid administrative subpoena because, among other defects, it 22 exceeds the scope of CBP’s authority under 19 U.S.C. § 1509. 23 64. For the foregoing reasons, the Court should enjoin Defendants from taking any 24 further action to enforce the CBP Summons and declare it to be an unlawful exercise of 25 Defendants’ authority, in contravention of 15 U.S.C. § 1509 and the SCA. Such relief is 26 warranted under, among other laws, the APA because issuance, service, and enforcement of the 27 subpoena is “not in accordance with law” and “in excess of statutory jurisdiction, authority, or 28 limitations.” 5 U.S.C. § 706(2)(A), (C). 18 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 19 of 25 COUNT II (U.S. Const. amend. I; Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; APA, 5 U.S.C. § 706) 1 2 3 4 THE FIRST AMENDMENT BARS THE CBP SUMMONS ABSENT SATISFACTION OF THE STRINGENT STANDARD FOR UNMASKING ANONYMOUS SPEAKERS 65. Plaintiff herein incorporates by reference paragraphs 1-64 as if set forth fully 66. Twitter provides a platform for speech for hundreds of millions of users. Its users 5 herein. 6 7 Tweet about a broad range of topics, from a favorite sports team to the birth of a child to the 8 latest executive order. Many of Twitter’s users choose to express themselves on the platform 9 pseudonymously. 10 67. The CBP Summons seeks to force Twitter to disclose information that would 11 identify, or likely lead to the identification of, a person (or group of persons) who has chosen to 12 criticize the government pseudonymously and whose speech is potentially valuable since the 13 person—as a self-described public employee—may be in the best position to “know what ails the 14 agenc[y] for which [he or she] work[s].” Dahlia v. Rodriguez, 735 F.3d 1060, 1066-1067 (9th 15 Cir. 2013) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). 16 68. Compelled disclosure of the identities of Twitter users who have engaged in 17 pseudonymous speech would chill their exercise of the constitutionally protected right to speak 18 anonymously. Moreover, independent of its users’ rights, Twitter’s actions in providing a 19 platform for the dissemination of its users’ speech—including its decision to permit the 20 publication of pseudonymous speech—is fully protected by the First Amendment. See, e.g., 21 Marcus v. Search Warrants, 367 U.S. 717, 731-732 (1961); cf., e.g., Arkansas Educ. Television 22 Comm’n v. Forbes, 523 U.S. 666, 674 (1998). When rights of free speech—especially 23 anonymous free speech—are at stake, courts generally permit an organization or business to 24 assert those rights on behalf of its members or customers. See, e.g., Virginia v. American 25 Booksellers Ass’n, Inc., 484 U.S. 383, 392-393 (1988) (permitting booksellers to assert First 26 Amendment rights of buyers of adult-oriented books); Publius v. Boyer-Vine, 2017 WL 772146, 27 28 19 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 20 of 25 1 at *5 n.5 (E.D. Cal. Feb. 27, 2017) (collecting cases holding that entities such as websites can 2 assert the First Amendment rights of their anonymous users). 3 69. The decision to speak anonymously or pseudonymously is protected by the First 4 Amendment. As the Supreme Court has explained, “an author’s decision to remain anonymous, 5 like other decisions concerning omissions or additions to the content of a publication, is an 6 aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections 7 Comm’n, 514 U.S. 334, 342 (1995). “Anonymity is a shield from the tyranny of the majority. It 8 thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: 9 to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand 10 11 of an intolerant society.” Id. at 357. 70. A time-honored tradition of pseudonymous free speech on matters of public 12 moment runs deep in the political life of America. “Undoubtedly the most famous pieces of 13 American political advocacy are The Federalist Papers, penned by James Madison, Alexander 14 Hamilton, and John Jay, but published under the pseudonym ‘Publius.’” In re Anonymous 15 Online Speakers, 661 F.3d 1168, 1172-73 (9th Cir. 2011) (citing McIntyre, 514 U.S. at 344 n.6). 16 71. The decision to maintain anonymity “may be motivated by fear of economic or 17 official retaliation, by concern about social ostracism, or merely by a desire to preserve as much 18 of one’s privacy as possible.” Watchtower Bible and Tract Soc’y of New York, Inc. v. Village of 19 Stratton, 122 S. Ct. 2080, 2089-90 (2002) (internal citation omitted). In the present case, there is 20 reason for concern that the CBP Summons itself may reflect the very sort of official retaliation 21 that can result from speech that criticizes government officials and agencies. Because of the 22 potential for retaliation and ostracism, “[t]here can be no doubt that [requiring identification of 23 pseudonymous authors] would tend to restrict freedom to distribute information and thereby 24 freedom of expression.” Talley v. California, 362 U.S. 60, 64-65 (1960); see also (WIN) 25 Washington Initiatives Now v. Rippie, 213 F.3d 1132, 1139 (9th Cir. 2000) (“Depriving 26 individuals of … anonymity is … ‘a broad intrusion, discouraging truthful, accurate speech by 27 those unwilling to [disclose their identities] and applying regardless of the character or strength 28 of an individual’s interest in anonymity.’”) (quoting American Constitutional Law Found., Inc. v. 20 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 21 of 25 1 Meyer, 120 F.3d 1092, 1103 (10th Cir. 1997))); see also Am. Civil Liberties Union of Nevada v. 2 Heller, 378 F.3d 979, 988 (9th Cir. 2004). 3 72. These First Amendment interests are at their zenith when, as here, the speech at 4 issue touches on matters of public political life. Political expression “occupies the core of the 5 protection afforded by the First Amendment” and must be afforded the highest level of First 6 Amendment protection. McIntyre, 514 U.S. at 346; see also Mills v. Alabama, 384 U.S. 214, 7 218 (1966) (“[T]here is practically universal agreement that a major purpose of that Amendment 8 was to protect the free discussion of governmental affairs.”); New York Times Co. v. Sullivan, 9 376 U.S. 254, 270 (1964) (a case should be considered “against the background of a profound 10 national commitment to the principle that debate on public issues should be uninhibited, robust, 11 and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly 12 sharp attacks on government and public officials.”). 13 73. These protections for anonymous and pseudonymous political speech are as 14 robust on the Internet as any other mode of speech. The Supreme Court has unequivocally held 15 that speech on the Internet is entitled to the highest form of First Amendment protection. See 16 Reno v. ACLU, 521 U.S. 844, 870 (1997). As the Supreme Court aptly recognized, through the 17 Internet and interactive services such as Twitter, “any person with a phone line can become a 18 town crier with a voice that resonates farther than it could from any soapbox. Through the use of 19 Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” 20 Id.; see also In re Anonymous Online Speakers, 661 F.3d at 1173 (“Although the Internet is the 21 latest platform for anonymous speech, online speech stands on the same footing as other 22 speech.”). “As with other forms of expression, the ability to speak anonymously on the Internet 23 promotes the robust exchange of ideas and allows individuals to express themselves freely 24 without ‘fear of economic or official retaliation ... [or] concern about social ostracism.’” In re 25 Anonymous Online Speakers, 661 F.3d at 1173 (quoting McIntyre, 514 U.S. at 341-342). 26 74. Compelling Twitter to disclose information that would identify or lead to the 27 identification of the person(s) who established and use the @ALT_USCIS account would chill 28 the expression of particularly valuable political speech—namely speech by current or former 21 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 22 of 25 1 public employees, or others with special insight into operations of our government. The 2 Constitution does not permit a government agency to suppress dissent voiced by current or 3 former employees in their private capacity—especially when such efforts exceed the agency’s 4 statutory authority. “[C]itizens do not surrender their First Amendment rights by accepting 5 public employment.” Lane v. Franks, 134 S. Ct. 2369, 2374 (2014). Indeed, “[t]here is a 6 significant First Amendment interest in encouraging public employees, who have special access 7 to facts relevant to debates on issues of public concern, to speak freely and make that 8 information available.” Johnson v. Multnomah Cty., Or., 48 F.3d 420, 424 (9th Cir. 1995). 9 “[S]peech by public employees on subject matter related to their employment holds special value 10 precisely because those employees gain knowledge of matters of public concern through their 11 employment.” Franks, 134 S. Ct. at 2378-2381. “It may often be the case that, unless public 12 employees are willing to blow the whistle, government corruption and abuse would persist 13 undetected and undeterred.” Dahlia, 735 F.3d at 1066-1067. “The interest at stake is as much 14 the public’s interest in receiving informed opinion as it is the employee’s own right to 15 disseminate it.” San Diego v. Roe, 543 U.S. 77, 82 (2004). 16 75. In light of the compelling First Amendment interests at stake, Defendants must 17 satisfy “stringent standards” before using a subpoena or other compulsory legal process to 18 attempt to unmask the identity of the person(s) who established and use the @ALT_USCIS 19 account. Mason Awtry v. Glassdoor, Inc., 2016 WL 1275566, at *1 (N.D. Cal. Apr. 1, 2016); 20 see In re Anonymous Online Speakers, 661 F.3d at 1778 (“[T]he nature of the speech should be a 21 driving force in choosing a standard by which to balance the rights of anonymous speakers” 22 against the interests of those seeking disclosure, with political speech warranting “imposition of 23 a heightened standard”). In particular, Defendants must demonstrate that (1) “there is a real 24 evidentiary basis for believing” that some criminal or civil offense has been committed, 25 Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 975-976 (N.D. Cal. 2005); 26 (2) revealing the identity of the speaker(s) is “necessary”—that is, that it is the least restrictive 27 means for investigating that offense, Glassdoor, Inc, 2016 WL 1275566, at *16; Art of Living 28 Foundation v. Does 1-10, 2011 WL 5444622, *10 (N.D. Cal. Nov. 9, 2011); (3) Defendants’ 22 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 23 of 25 1 demand for this information is not motivated by a desire to suppress free speech; and (4) the 2 interests of pursuing that investigation outweigh the important First Amendment rights of Twitter 3 and its users, Highfields, 385 F. Supp. 2d at 975-976. See also Doe No. 1 v. Cahill, 884 A.2d 4 451 (Del. 2005) (preventing disclosure of identity of anonymous online speaker); Dendrite 5 Intern., Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. 2001) (same). The heightened showing 6 required for such compulsory legal process is not only supported by substantial judicial 7 precedent, but also is consistent with the special procedures erected in other contexts to protect 8 First Amendment rights. E.g., Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1182-1183 (9th 9 Cir. 2013) (California’s anti-SLAPP statute “establish[es] a summary-judgment-like procedure 10 available at an early stage of [a] litigation that poses a potential chilling effect on speech-related 11 activities” (internal quotation omitted)); 28 C.F.R. § 50.10(c)(1) (requiring subordinates in the 12 Department of Justice to obtain the authorization of the Attorney General to issue a subpoena to 13 a member of the news media, or to use a subpoena to obtain from a third party communications 14 records or business records of a member of the news media). 15 76. Defendants have satisfied none of these requirements. To meet the first 16 requirement, Defendants must “adduce competent evidence” that “address[es] all of the 17 inferences of fact that [Defendants] would need to prove in order to [substantiate] at least one of 18 the” offenses that Defendants believe has been committed. Highfields Capital Mgmt., L.P., 385 19 F. Supp. at 975. Defendants have fallen far short of this standard, given that they have neither 20 specified any offense they are purportedly investigating nor presented any evidence in support of 21 any element of any such offense. 22 77. Defendants have likewise failed to demonstrate that unmasking the identity of the 23 @ALT_USCIS accountholder(s) is the least restrictive way to investigate any offense or offenses 24 that they believe were committed. To establish that the CBP Summons is “necessary,” 25 Defendants must explain why other investigatory tools they have deployed have fallen short, 26 leaving Defendants with no choice but to pierce @ALT_USCIS’s pseudonymity. E.g., 27 Glassdoor, Inc, 2016 WL 1275566, at *16; Art of Living Foundation, 2011 WL 5444622, at *10. 28 Defendants have not come close to making that showing. 23 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 24 of 25 1 78. Defendants’ failure to establish that some offense within the law enforcement 2 purview of CBP was actually committed and that the CBP Summons is necessary to investigate 3 that offense likewise confirms that Defendants have failed to demonstrate that the summons is 4 not motivated by a desire to suppress free speech, or that Defendants’ need to unmask the 5 identity of the @ALT_USCIS accountholder(s) outweighs the harm that doing so would cause to 6 the First Amendment rights of Twitter and its users. 7 79. For the foregoing reasons, the Court should enjoin Defendants from taking any 8 further action to enforce the CBP Summons and—absent the requisite showing—declare it to be 9 a violation of the rights of Twitter and its users under the First Amendment. Such relief is 10 warranted under, among other laws, the APA, because issuance, service, and enforcement of the 11 CBP Summons is “contrary to constitutional right.” 5 U.S.C. § 706(2)(B). 12 PRAYER FOR RELIEF 13 WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: 14 a. Declare that the CBP Summons is unlawful and unenforceable because 15 Defendants issued it for reasons not authorized by 19 U.S.C. § 1509 and because it demands 16 production of documents that Defendants are not authorized to demand or obtain under 19 17 U.S.C. § 1509, and further declare that the CBP Summons violates the Administrative Procedure 18 Act as not in accordance with law, 5 U.S.C. § 706(2)(A), and “in excess of statutory jurisdiction, 19 authority, or limitations,” id. § 706(2)(C). 20 b. Declare that the CBP Summons is unlawful and unenforceable because it violates 21 the First Amendment rights of both Twitter and its users by seeking to unmask the identity of 22 one or more anonymous Twitter users voicing criticism of the government on matters of public 23 concern without Defendants having satisfied the stringent standards for piercing a speaker’s 24 anonymity, and further declare that the CBP Summons violates the Administrative Procedure 25 Act as “contrary to constitutional right,” 5 U.S.C. § 706(2)(B); 26 c. Issue an order vacating and nullifying the CBP Summons, enjoining Defendants 27 or their agents from enforcing the CBP Summons, and declaring that Twitter has no obligation to 28 comply with the CBP Summons; 24 Complaint Case 3:17-cv-01916 Document 1 Filed 04/06/17 Page 25 of 25 1 d. Award Plaintiff its costs and reasonable attorney’s fees as appropriate; and 2 e. Grant such other relief as this Court may deem just and proper. 3 4 5 6 7 8 9 10 11 12 Dated: April 6, 2017 Respectfully submitted, /s/ Mark D. Flanagan SETH P. WAXMAN (pro hac vice pending) seth.waxman@wilmerhale.com PATRICK J. CAROME (pro hac vice pending) patrick.carome@wilmerhale.com ARI HOLTZBLATT (pro hac vice pending) ari.holtzblatt@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 17 MARK D. FLANAGAN (CA SBN 130303) mark.flanagan@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 18 Counsel for Plaintiff Twitter, Inc. 13 14 15 16 19 20 21 22 23 24 25 26 27 28 25 Complaint