Case 3:17-cv-01916-JCS Document 1 Filed 04/06/17 Page 1 of 25

1 SETH P. WAXMAN (pro hac vice pending) MARK D. FLANAGAN (CA SBN 130303)

seth.waxman@wilmerhale.com

mark.flanagan@wilmerhale.com

2 PATRICK J. CAROME (pro hac vice pending) WILMER CUTLER PICKERING

patrick.carome@wilmerhale.com 3 ARI HOLTZBLATT (pro hac vice pending)

HALE AND DORR LLP 950 Page Mill Road

4

ari.holtzblatt@wilmerhale.com WILMER CUTLER PICKERING

Palo Alto, California 94304 Telephone: (650) 858-6000

5 HALE AND DORR LLP 1875 Pennsylvania Avenue, NW

Facsimile: (650) 858-6100

6 Washington, D.C. 20006 Telephone: (202) 663-6000

Attorneys for Plaintiff TWITTER, INC.

7 Facsimile: (202) 663-6363

8
9 10 TWITTER, INC.,

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

Plaintiff,

Case No.

12

v.

13 U.S. DEPARTMENT OF HOMELAND

14

SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; JOHN F. KELLY,

15 in his official capacity as Secretary of Homeland Security; KEVIN K.

16 MCALEENAN, in his official capacity as

Acting Commissioner, U.S. Customs and 17 Border Protection; STEPHEN P. CARUSO,

18 in his official capacity as Special Agent In Charge, U.S. Customs and Border Protection;

19 and ADAM HOFFMAN, in his official

capacity as Special Agent, U.S. Customs and

20 Border Protection,

21

Defendants.

22

COMPLAINT

23

Plaintiff Twitter, Inc. (“Twitter”), by and through its attorneys, hereby alleges:

24

INTRODUCTION

25

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

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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

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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

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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

9. For these and other reasons discussed below, Twitter respectfully requests that

24 this Court declare the summons unlawful and enjoin its enforcement.

25

JURISDICTION AND VENUE

26

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.

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1

11. This Court is authorized to award the requested declaratory and injunctive relief

2 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 and the APA, 5 U.S.C. § 706.

3

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

PARTIES

7

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. Stephen P. Caruso is a special agent in charge within CBP. He is sued in his

24 official capacity.

25

19. Adam Hoffman is a special agent within the Office of Professional Responsibility

26 of CBP. He is sued in his official capacity.

27

28

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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

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26 1 Lisa Rein, Interior Department Reactivates Twitter Accounts After Shutdown Following
27 Inauguration, WASH. POST (Jan. 21, 2017), https://www.washingtonpost.com/news/powerpost 28 /wp/2017/01/20/interior-department-banned-from-twitter-after-retweet-of-smaller-than-usual-
trump-inauguration-crowd/?utm_term=.4e6d99996772.

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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.

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1

27. Some accounts appear to equate the simple act of broadcasting facts as an

2 expression of dissent.

3

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7

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28. The accounts often have expressed disagreement with specific policies of the

15 official agency.

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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 30. Like many online platforms, Twitter’s platform offers users the choice between
12 speaking in a self-identifying manner (for example, by selecting a user name that matches or is
13 similar to the user’s real name) or pseudonymously (through an account that has a user name and
14 user description that do not disclose the speaker’s real identity).
15 31. Pseudonymity of the speaker(s) is a defining feature of the alternative agency
16 accounts that have recently emerged on the Twitter platform. While the persons who establish
17 and use these accounts sometimes provide highly general descriptions of themselves (for
18 example, by stating in the account’s biography that the user or users work or previously worked
19 for a particular agency), they typically refrain from revealing their real names. The users appear
20 to view and depend on preservation of their anonymity as crucial to their ability to express
21 information and ideas that are contrary to the policies and objectives of the Administration and
22 its agencies. Preserving anonymity appears to be especially important for users of these
23 alternative agency accounts who are current federal employees, given the risk that such users
24 could face retaliation, sanctions, or other negative repercussions from their federal employer if
25 they were identified as the source of criticism of their agency.2 26

27 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-accounts28 fight-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

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1

The @ALT_USCIS Twitter Account

2

32. This case concerns one particular alternative agency account that, like many

3 others, was created in late January 2017: @ALT_USCIS.

4

33. 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

17

34. 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.

22

35. In two months of existence, the @ALT_USCIS account has attracted over 32,000

23 followers and has issued thousands of Tweets.

24

25

26 preserve their anonymity “out of fear of workplace retaliation and pressure to shut down their

accounts”). 27
3 The accountholder reworked the account’s description and profile image at some point after 28 Twitter received the CBP Summons. The profile image displayed above is as it was when the

summons was received.

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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

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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.

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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

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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.

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39. The account has regularly leveled criticism at U.S. Customs and Border

17 Protection—the agency that issued the summons challenged by this lawsuit.

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40. The account has also frequently tweeted disagreement with the current

28 Administration’s policies on subjects other than immigration—expressing opposition to efforts in

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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.

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U.S. Customs And Border Protection Orders Twitter To Produce

15

Records That Would Strip The @ALT_USCIS Account Of Anonymity

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.

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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

47. The CBP Summons further “requested”—but did not order or otherwise compel—

14 Twitter “not to disclose the existence of this summons for an indefinite period of time.”

15

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

49. On March 28, 2017, counsel for Twitter contacted Defendant Hoffman to raise

28 concerns regarding the request not to provide notice to the user and the legal basis for seeking

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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.

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1

52. As of today’s date, Defendants have not notified Twitter of any intent to withdraw

2 the CBP Summons.

3

COUNT I

(19 U.S.C. § 1509; Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202;

4

APA, 5 U.S.C. § 706)

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 7

herein. 8

54. The summons is unlawful because it demands production of records that CBP is 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

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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-JCS 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-JCS Document 1 Filed 04/06/17 Page 19 of 25

1

COUNT II

(U.S. Const. amend. I; Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202;

2

APA, 5 U.S.C. § 706)

3 THE FIRST AMENDMENT BARS THE CBP SUMMONS ABSENT SATISFACTION
OF THE STRINGENT STANDARD FOR UNMASKING ANONYMOUS SPEAKERS 4
65. Plaintiff herein incorporates by reference paragraphs 1-64 as if set forth fully 5
herein. 6
66. Twitter provides a platform for speech for hundreds of millions of users. Its users 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-JCS 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 of an intolerant society.” Id. at 357.

11

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-JCS 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-JCS 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-JCS 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-JCS 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-JCS 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 Dated: April 6, 2017
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

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
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
Counsel for Plaintiff Twitter, Inc.

19

20

21

22

23

24

25

26

27

28

25

Complaint

 
 Case 3:17-cv-01916-JCS Document 8 Filed 04/07/17 Page 1 of 2

1 SETH P. WAXMAN (pro hac vice pending) MARK D. FLANAGAN (CA SBN 130303)

seth.waxman@wilmerhale.com

mark.flanagan@wilmerhale.com

2 PATRICK J. CAROME (pro hac vice pending) WILMER CUTLER PICKERING

3

patrick.carome@wilmerhale.com ARI HOLTZBLATT (pro hac vice pending)

HALE AND DORR LLP 950 Page Mill Road

4

ari.holtzblatt@wilmerhale.com WILMER CUTLER PICKERING

Palo Alto, California 94304 Telephone: (650) 858-6000

5

HALE AND DORR LLP 1875 Pennsylvania Avenue, NW

Facsimile: (650) 858-6100

6 Washington, D.C. 20006 Telephone: (202) 663-6000

Attorneys for Plaintiff TWITTER, INC.

7 Facsimile: (202) 663-6363

8
9 10 TWITTER, INC.,

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

Plaintiff,

12

v.

Case No. 3:17-cv-01916-JCS

13 U.S. DEPARTMENT OF HOMELAND

PLAINTIFF TWITTER, INC.’S NOTICE

14

SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; JOHN F. KELLY,

OF VOLUNTARY DISMISSAL PURSUANT TO RULE 41(a)(1)

15 in his official capacity as Secretary of Homeland Security; KEVIN K.

16 MCALEENAN, in his official capacity as

17

Acting Commissioner, U.S. Customs and Border Protection; STEPHEN P. CARUSO,

18

in his official capacity as Special Agent In Charge, U.S. Customs and Border Protection;

19 and ADAM HOFFMAN, in his official capacity as Special Agent, U.S. Customs and

20 Border Protection,

21

Defendants.

22

23

24

25

26

27

28 Case No. 3:17-cv-01916-JCS

1

Plaintiff Twitter, Inc.’s Notice

of Voluntary Dismissal

Case 3:17-cv-01916-JCS Document 8 Filed 04/07/17 Page 2 of 2

1

NOTICE IS HEREBY GIVEN that pursuant to Federal Rule of Civil Procedure

2 41(a)(1)(A)(i), Plaintiff Twitter, Inc. (“Twitter”), by and through its undersigned counsel, hereby

3 voluntarily dismisses without prejudice all claims against Defendants in the above-captioned

4 matter.

5

On April 6, 2017, Twitter filed a Complaint in the above-captioned matter. On April 7,

6 2017, counsel for Defendants from the Department of Justice contacted counsel for Twitter, to

7 advise that U.S. Customs and Border Protection has withdrawn the summons and that the

8 summons no longer has any force or effect. Because the summons has now been withdrawn,

9 Twitter voluntary dismisses without prejudice all claims against Defendants in the above-

10 captioned matter.

11

12 Dated: April 7, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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
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
Counsel for Plaintiff Twitter, Inc.

28 Case No. 3:17-cv-01916-JCS

2

Plaintiff Twitter, Inc.’s Notice

of Voluntary Dismissal

 
 Management Alert - CBP's Use of Examination and Summons Authority Under 19 U.S.C. § 1509
November 16, 2017 OIG-18-18

OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
Washington, DC 20528 / www.oig.dhs.gov

November 16, 2017

MEMORANDUM FOR: Kevin McAleenan Acting Commissioner U.S. Customs and Border Protection

FROM: SUBJECT:

John Roth Inspector General
Management Alert – CBP’s Use of Examination and Summons Authority Under 19 U.S.C. § 1509

For your action is our final management alert, CBP’s Use of Examination and Summons Authority Under 19 U.S.C. § 1509, prepared by the DHS OIG Special Reviews Group. This final management alert incorporates the management response provided by your office.
The alert contains three recommendations aimed at ensuring that CBP personnel are informed and trained on the appropriate exercise of CBP’s examination and summons authority under 19 U.S.C. § 1509. Based on the information provided in CBP’s response to the draft alert, we consider Recommendations 1 and 2 resolved and open, and Recommendation 3 unresolved and open.
As prescribed by DHS Directive 077-01, Follow-Up and Resolution for Office of Inspector General Report Recommendations, within 90 days of the date of this memorandum, please provide our office with a written update on your corrective action plan and the target completion date for each recommendation. In this update, please identify the parties responsible for implementing the corrective action and provide any other supporting documentation necessary to inform us about the current status of the recommendations. Until your response is received and evaluated, the recommendations will remain open. Please send your written update to Special.Reviews@oig.dhs.gov.
Consistent with our responsibility under the Inspector General Act of 1978, as amended, we will provide copies of our report to congressional committees with oversight and appropriation responsibility over DHS. We will post the report on our website for public dissemination.
Please call me with any questions, or your staff may contact Diana Shaw, Director of the Special Reviews Group, at (202) 254-4100.

OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
Background
On March 14, 2017, the U.S. Customs and Border Protection (CBP) Office of Professional Responsibility (OPR) issued a summons to Twitter, Inc. (Twitter) purportedly pursuant to its authority under 19 U.S.C. § 1509. The summons sought “[a]ll records regarding the twitter account @ALT_USCIS to include, User names, account login, phone numbers, mailing addresses, and I.P. addresses.” On April 6, 2017, Twitter filed a complaint against CBP in federal court claiming the summons exceeded the scope of CBP’s authority under 19 U.S.C. § 1509. Twitter further accused CBP of attempting to “unmask” the @ALT_USCIS anonymous speaker and infringing upon his or her First Amendment rights. On April 7, 2017, CBP withdrew the summons, and Twitter subsequently dismissed its complaint.
In the course of investigating the circumstances surrounding these events, the Department of Homeland Security (DHS) Office of Inspector General (OIG) identified issues concerning CBP’s policies and practices with respect to summonses issued pursuant to 19 U.S.C. § 1509 (Section 1509 Summonses). As described further below, lack of clear guidance on the proper use of Section 1509 Summonses has resulted in inconsistent — and, in some cases, improper — use of such summonses. While we understand that CBP has taken steps to clarify the guidance, CBP can and should do more to ensure that its personnel are properly informed and educated about the appropriate use of Section 1509 Summonses.
CBP OPR’s Use of a Section 1509 Summons in the @ALT_USCIS Case
CBP issued the summons to Twitter regarding the @ALT_USCIS account for the purpose of identifying the owner of the account. CBP took the position that it needed this information in order to “insur[e] compliance with the laws of the United States administered by the [Service]” — i.e., to investigate possible criminal violations by CBP officials, including murder, theft, and corruption.
However, Subtitle III, Part III of Title 19 — under which Section 1509 falls — addresses ascertainment, collection, and recovery of customs duties. Specifically, section 1509(a)(1) authorizes the U.S. Customs Service1 (Service) to examine, or cause to be examined, any “record” that

1 Pursuant to Section 403(1) of the Homeland Security Act of 2002, the functions,

personnel, assets, and liabilities of the U.S. Customs Service were transferred from the

Secretary of the Treasury to the Secretary of Homeland Security. DHS Delegation

Number 7010.3 delegates to the CBP Commissioner, and through him to his officers

and CBP employees, all rights, privileges, powers, and duties previously enforced or

www.dhs.oig.gov

2

OIG-18-18

OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
may be relevant to an investigation or inquiry conducted by the Service for the purpose of (1) ascertaining the correctness of any entry [of merchandise]; (2) determining the liability of any person for duties, fees, and taxes due to the United States; (3) determining liability for fines and penalties; or (4) “insuring compliance with the laws of the United States administered by the [Service].”
Section 1509(d) details special procedures for issuing summonses to third parties. Section 1509(d)(1)(A) limits the scope of third-party summonses to “records” pertaining to prohibited merchandise, or records required to be kept under 19 U.S.C. § 1508. Section 1508 defines “records” as documents pertaining to the importation of merchandise into the customs territory of the United States, the filing of a draw-back claim, or the transportation and storage of merchandise carried or held under bond.
CBP’s purpose in issuing the summons to Twitter was unrelated to the importation of merchandise or the assessment and collection of customs duties. Accordingly, CBP may have exceeded the scope of its authority under Section 1509 when it issued the summons to Twitter, a fact CBP OPR appeared to tacitly acknowledge when, on May 25, 2017, the Executive Director of CBP OPR’s Investigative Operations Division (IOD) emailed CBP OPR personnel clarifying the limited contexts in which Section 1509 Summonses may properly be used:

(emphasis added)

The guidance communicated in this email brings CBP OPR’s policy on the use of Section 1509 Summonses in line with the purpose and language of Title 19, and should assist CBP OPR personnel in determining when such summonses may properly be used. However, we

administered by the U.S. Customs Service, including the summons authority provided under 19 U.S.C. § 1509.

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understand that this email guidance is not yet reflected in CBP OPR’s official operating policies or procedures. Specifically, as explained below, we understand that CBP OPR has not updated its Special Agent Internal Operating Procedures (IOP) to communicate this guidance on the proper use of Section 1509 Summonses, including the new legal review process.
CBP OPR’s Policy and Practice Regarding Use of Section 1509 Summonses
CBP exercises its examination and summons authority under 19 U.S.C. §1509 using summons form DHS 3115, “Summons to Appear and/or Produce Records, 19 U.S.C. § 1509.” CBP OPR’s Special Agent Internal Operating Procedures sets forth the agency’s policy with respect to the use of DHS 3115 / Section 1509 Summonses. Chapter 10.1 of the most recent version of the IOP, issued on April 15, 2016, states the following:

Data provided by CBP to DHS OIG indicates that DHS 3115 regularly has been used by CBP OPR personnel in violation of the policy. For instance, despite the express prohibition against use of DHS 3115 in drug-smuggling cases, CBP OPR used DHS 3115 in at least 43 drugsmuggling cases between January 2015 and May 2017, representing approximately 20% of the total summonses issued by CBP OPR during this period. Based on this data, it appears CBP OPR’s use of DHS 3115 during this period violated its own policy at least 1 out of every 5 times.
This same data reflects the use of DHS 3115 summonses in other questionable contexts. For instance, a DHS 3115 summons was used to obtain records from Craigslist in a matter involving a Border Patrol agent who allegedly attempted to sell government-issued night vision goggles on the site. Similarly, a DHS 3115 summons was used in several cases in which a CBP employee requested sick leave under false pretenses. It is difficult to see how such employee misconduct bears a nexus to Title 8

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(aliens and nationality) or Title 19 (customs duties), as required by CBP OPR policy.
This evidence demonstrates a lack of understanding of the proper use of DHS 3115 / Section 1509 Summonses on the part of CBP OPR personnel. It indicates that these summonses are being used to obtain records — including records from third parties — in a wide range of cases having no nexus to Title 8 or Title 19. Such uses violate CBP OPR’s stated policy and potentially open up the agency to legal challenges, as in the @ALT_USCIS case.

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Department of Homeland Security
Recommendations
Recommendation 1: We recommend that CBP update the Special Agent Internal Operating Procedures immediately to reflect the guidance on the use of Section 1509 Summonses provided in the May 25, 2017 email referenced in this report from the Executive Director of CBP OPR’s Investigative Operations Division.
Recommendation 2: We recommend that relevant CBP personnel receive training on the proper use of Section 1509 Summonses as soon as practicable.
Recommendation 3: We recommend that CBP look at use of Section 1509 Summonses across the agency to determine how such summonses are being used, and whether such uses comport with the law and CBP’s updated policy.

Management Comments and OIG Analysis

CBP concurred with the recommendations and provided comments to the draft alert. A summary of CBP’s response and our analysis follows. We have included a copy of CBP’s management response in its entirety in Appendix A. CBP also provided technical comments to the alert. We made changes to incorporate these comments, where appropriate.

CBP has taken, and is continuing to take, corrective action to address the issues raised in this alert. Specifically, CBP informed us that, between April and June 2017, CBP OPR delivered both verbal and written guidance to OPR agents at headquarters and field offices relating to the issuance of Section 1509 Summonses / DHS 3115. These updates were followed by training for OPR Special Agents in Charge (SACs) in July 2017. CBP further informed us that it will revise its IOP to reflect the updated guidance on the issuance of DHS 3115. Once the updated IOP is released, training will be provided to OPR SAC Offices.

Finally, CBP has created a CBP-wide working group to review and update the current CBP Directive on the Examination and Summons Authority Under 19 U.S.C. § 1509 to ensure that it reflects the updated guidance on the proper use of Section 1509 Summonses.

Response to Recommendation #1: Concur. CBP agreed to issue a

revised IOP by April 30, 2018, which will include updated guidance on the issuance of Section 1509 Summonses / DHS 3115. The revised IOP will provide guidance on the issuance of Section 1509 Summonses

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consistent with the guidance provided in the May 25, 2017 email from the Executive Director of CBP OPR’s IOD. The revised IOP will also lay out a multi-level approval process for Section 1509 Summonses, which includes preliminary review by an OPR SAC, legal review by an Associate or Assistant Chief Counsel, review by the IOD Executive Director, and approval by the CBP OPR Assistant Commissioner.
While awaiting issuance of the revised IOP, CBP has taken steps to disseminate information about the updated guidance and new approval process to relevant CBP OPR personnel. This included issuing verbal and written guidance between April and June 2017.
OIG Analysis of CBP’s Response: CBP concurred with our recommendation and provided copies of the written guidance already provided to CBP OPR personnel on the appropriate use of Section 1509 Summonses / DHS 3115. However, this recommendation will remain open and resolved until CBP OPR issues a revised IOP reflecting the updated guidance.
Response to Recommendation #2: Concur. CBP agreed to provide training to all OPR SAC Offices following issuance of the revised IOP, which will include training on the updated guidance regarding issuance of Section 1509 Summonses / DHS 3115. CBP also conducted training with all OPR SACs in July 2017 on the appropriate use of Section 1509 Summonses / DHS 3115.
OIG Analysis of CBP’s Response: CBP concurred with our recommendation and provided a copy of the training materials used to train OPR SACs in July 2017 on the appropriate use of Section 1509 Summonses / DHS 3115. The guidance provided in the training materials is consistent with the guidance provided in the May 25, 2017 email from the Executive Director of CBP OPR’s IOD. However, this recommendation will remain open and resolved until CBP OPR completes the training it intends to conduct at all OPR SAC Offices following issuance of the revised IOP.
Response to Recommendation #3: Concur. On May 5, 2017, CBP created a CBP-wide working group to update the CBP Directive on the Examination and Summons Authority Under Title 19 U.S.C. § 1509 (Directive). The working group updated the Directive to reflect the current use of the examination and summons authority by various offices within CBP, and included a new training requirement for offices across CBP on the proper use of Section 1509 Summonses. The Directive is in final draft and is currently out for review and comment by all impacted CBP Offices.

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OIG Analysis of CBP’s Response: CBP concurred with our recommendation and provided a copy of the final draft version of the updated Directive. One sub-section of the draft Directive specifically addresses summonses issued to third parties pursuant to 19 U.S.C. § 1509, including social media outlets like Twitter. The sub-section specifies that if the requested records are not required to be kept under 19 U.S.C. § 1508, such summonses may be issued only if CBP has probable cause to believe the requested records pertain to merchandise the importation of which into the U.S. is prohibited. This instruction is consistent with the guidance provided in the May 25, 2017 email from the Executive Director of CBP OPR’s IOD. A separate section of the draft Directive also requires CBP Offices to provide training to employees on best practices associated with the issuance of the 1509 summons.
While the draft Directive addresses the concerns reflected in Recommendations 1 and 2 of this alert, it does not address Recommendation 3. Recommendation 3 calls on CBP to review how its personnel have been using Section 1509 Summonses to determine whether such summonses are consistently being used in compliance with the law and CBP’s updated policy. Accordingly, this recommendation will remain unresolved and open until CBP provides evidence that it has conducted this retrospective review.

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Authorities

This management alert reflects work performed by the DHS OIG Special Reviews Group pursuant to Section 2 of the Inspector General Act of 1978, as amended. Specifically, this management alert provides information about the inconsistent and improper use of Section 1509 Summonses by CBP OPR for the purpose of keeping the Secretary of DHS and Congress fully and currently informed about problems and deficiencies relating to the administration of DHS programs and operations and the necessity for and progress of corrective action. This management alert is designed to promote the efficient and effective administration of, and to prevent and detect fraud and abuse in, the programs and operations of DHS.

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Appendix A
 CBP Response to the Alert

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Appendix B Report Distribution
Department of Homeland Security
Secretary Deputy Secretary Chief of Staff Deputy Chiefs of Staff General Counsel Executive Secretary Director, GAO-OIG Liaison Office Assistant Secretary for Office of Policy Assistant Secretary for Office of Public Affairs Assistant Secretary for Office of Legislative Affairs
U.S. Customs and Border Protection
Commissioner Assistant Commissioner, Office of Professional Responsibility Audit Liaison Office
Office of Management and Budget
Chief, Homeland Security Branch DHS OIG Budget Examiner
Congress
Congressional Oversight and Appropriations Committees

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Additional Information and Copies
To view this and any of our other reports, please visit our website at: www.oig.dhs.gov. For further information or questions, please contact Office of Inspector General 
 Public Affairs at: DHS-OIG.OfficePublicAffairs@oig.dhs.gov. 
 Follow us on Twitter at: @dhsoig. 

OIG Hotline
 To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click on the red "Hotline" tab. If you cannot access our website, call our hotline at (800) 323-8603, fax our hotline at (202) 254-4297, or write to us at:
Department of Homeland Security Office of Inspector General, Mail Stop 0305 Attention: Hotline 245 Murray Drive, SW Washington, DC 20528-0305

 
 Case: 3:17-cv-1916 As of: 05/10/2017 11:53 AM PDT 1 of 2
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−01916−JCS

CLOSED

Twitter, Inc. v. U.S. Department of Homeland Security et al Assigned to: Magistrate Judge Joseph C. Spero Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 04/06/2017 Date Terminated: 04/07/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Twitter, Inc.

represented by Mark D. Flanagan WilmerHale 950 Page Mill Road Palo Alto, CA 94304 650−858−6047 Fax: 650−858−6100 Email: mark.flanagan@wilmerhale.com ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Homeland Security
Defendant U.S. Customs and Border Protection
Defendant John F. Kelly
Defendant Kevin K. McAleenan
Defendant Stephen P. Caruso
Defendant Adam Hoffman

Date Filed 04/06/2017
04/06/2017 04/06/2017 04/06/2017
04/06/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−11294340.). Filed byTwitter, Inc.. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)
2 Proposed Summons. (Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)
3 Certificate of Interested Entities by Twitter, Inc. , and Twitter, Inc.'s Corporate Disclosure Statement (Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)
4 MOTION for leave to appear in Pro Hac Vice by Seth P. Waxman ( Filing fee $ 310, receipt number 0971−11294558.) filed by Twitter, Inc.. (Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)
5 MOTION for leave to appear in Pro Hac Vice by Patrick J. Carome ( Filing fee $ 310, receipt number 0971−11294578.) filed by Twitter, Inc.. (Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)

Case: 3:17-cv-1916 As of: 05/10/2017 11:53 AM PDT 2 of 2

04/06/2017 04/06/2017

6 MOTION for leave to appear in Pro Hac Vice by Ari Holtzblatt ( Filing fee $ 310, receipt number 0971−11294623.) filed by Twitter, Inc.. (Flanagan, Mark) (Filed on 4/6/2017) (Entered: 04/06/2017)
7 Case assigned to Magistrate Judge Joseph C. Spero.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

04/07/2017 04/07/2017 04/07/2017 04/07/2017

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (srnS, COURT STAFF) (Filed on 4/6/2017) (Entered: 04/06/2017)
8 NOTICE of Voluntary Dismissal by Twitter, Inc. (Flanagan, Mark) (Filed on 4/7/2017) (Entered: 04/07/2017)
9 Order, signed 4/7/17, by Chief Magistrate Judge Joseph C. Spero granting 4 Motion for Pro Hac Vice for Seth Waxman.(klhS, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)
10 Order, signed 4/7/17, by Chief Magistrate Judge Joseph C. Spero granting 5 Motion for Pro Hac Vice for Patrick J. Carome.(klhS, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)
11 Order, signed 4/7/17, by Chief Magistrate Judge Joseph C. Spero granting 6 Motion for Pro Hac Vice for Ari Holtzblatt.(klhS, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)