On April 6th, the Department of Homeland Security took the unusual – and likely illegal and unconstitutional – step of attempting to “unmask” the user of a pseudonymous Twitter account. The account, @ALT_uscis, was one of a collection that had sprung up over the past few months to protest the Trump administration’s handling of various agencies – in this case, U.S. Citizenship and Immigration Services, a sub-agency of DHS.
Twitter fought back on behalf of its customers. It argued that “[t]he Supreme Court has long recognized the extraordinary value of … pure political speech criticizing government policies and highlighting government waste and mismanagement.” And further, “the Court has likewise recognized that anonymity is often essential to fostering such political speech.”
Kudos to Twitter for standing up for its users. And thank goodness, as a corporation, Twitter has constitutional rights – including those protected by the Fourth, Fifth, Sixth, and of course, First Amendments. DHS, perhaps realizing just how absurd their request was, has since backed down.
Twitter is correct. Unmasking anonymous criticism of government officials would undoubtedly have a chilling effect, not just on those who are tweeting their dissatisfaction from @ALT_uscis, but on anyone seeking to criticize the government, regardless of the medium. This is not to say that disclosure is some kind of ban on political expression, but disclosure has costs. One of those costs is that potential speakers fear that some government agency might hassle them if they irk the wrong public official.
Since the government is the biggest bully on the block, the best-case scenario, should a critic find itself in the government’s crosshairs, is a legal headache. The worst-case scenario is armed police on your doorstep. The most passionate speakers and those with significant resources are certainly more likely to not worry about such issues. But the First Amendment is rightly not limited to the passionate and well-heeled.
Because the Trump administration makes emotions run hot, everyone on the side of “The Alts” seems to intuitively understand the danger posed by such disclosure. To those of us who have been fighting for privacy and free political speech for a bit longer, however, the actions of DHS do not come as a surprise (other than the actual dropping of the frivolous request). Using government power to effectively silence your critics has a long tradition in American politics. The DHS summons to Twitter was effectively equivalent to any state campaign finance board demanding the donors to a nonprofit group that angered some local politician. In both cases, demands for disclosure are being used to quash dissent.
This is exactly why CCP has long argued, for example, that donations to groups publishing nonpartisan voter guides in Delaware and genuine issue ads and public policy papers in Colorado should not be subject to the same disclosure rules and regulations as explicitly political groups, like candidate campaigns, political parties, PACs, and super PACs. It’s not just that the benefit from such information is non-existent; it’s that the laws were passed so that the government could expose political activity it didn’t like. The DHS’s approach was certainly more ham-handed, but it was built on the central tenet that the government can use disclosure to limit political freedom.
The parallels between Twitter defending the anonymity of its users and nonprofits defending the anonymity of their supporters seem to be lost on many who want stricter campaign finance laws. As Professor Rick Hasen notes, “Even for those of us who support strong disclosure laws, there is an exemption when the government singles out people for harassment.”
So how is the Twitter flap distinct from a state law that mandates a state agency disclose donors’ personal information online, and investigate when a nonprofit fails to comply? In both instances, it is a government agency requesting information from a private organization. In both cases, the private organization wants to protect the privacy of an individual or individuals from the government’s prying eyes. In the case of Twitter, it is possible that the government could use that information to weed out critics working at the agency – but it is equally possible the Twitter accounts don’t even belong to government officials. In the case of donors to nonprofits, we have actual proof that disclosure can lead to harassment. The frequency of such instances of abuse doesn’t make the threat less real.
Certainly, there was a theoretical risk of job loss from the potential Twitter disclosure of the individual(s) behind @ALT_uscis (though federal protections against viewpoint discrimination are quite stringent). Yet, there are actual examples of job loss due to excessive campaign finance disclosure.
So why is it perceived by some that DHS has “single[d] out people for harassment” and state campaign finance enforcement agencies have not? Surely, it can’t be because DHS asked for one particular account. Would the risk of harassment have been mitigated if the government had requested the identity of all alt-accounts? Or even all Twitter users?
The sole difference appears to be a matter of political trust. Namely, disclosure advocates believe that a Trump administration will use disclosure as a tool to silence its dissenters. The Trump administration, therefore, cannot be trusted.
I agree. But neither can any other administration.
