WASHINGTON (CN) — The Department of Justice tried to use a grand jury subpoena to reveal the name of an online critic of California Congressman Devin Nunes, according to court documents unsealed Monday.
The documents, filed by Perkins Coie Attorney John K. Roche in March, are a response to a grand jury subpoena the company claims aimed to unmask @NunesAlt, one of several parody accounts that have used Twitter to demean Nunes, a close ally of former President Donald Trump.
“His efforts to suppress critical speech are as well-publicized as they are unsuccessful,” Roche wrote about Nunes’ multiple lawsuits against the online platform, all of which have failed to render the unmasking he’s sought.
The subpoena and grand jury investigation appear to be linked to alleged violations of 18 U.S. Code § 875, a federal law governing interstate communictions. While the request was filed in November exhibits included in the documents show the DOJ confirming the request as late as Jan. 27, 2021.
Twitter has relied on Section 230, a part of federal law that allows online platforms to dismiss lawsuits early in the process. However, platforms lose that protection if the unmasking request is related to certain criminal activity.
“Pursuant to a criminal investigation being conducted by the United States Attorney’s Office, it is required that you furnish the requested records as described in the attached subpoena,” the DOJ wrote to Twitter in November 2020, according to the unsealed documents. The request sought the name, address and other personal information associated with the @NunesAlt account.
The request letter was signed by Acting U.S. Attorney Michael R. Sherwin. The prosecutor, who oversaw federal crimes for the District of Columbia, was appointed by former Attorney General William Barr. He left the post last month following the opening of an investigation into public comments he made related to the use of sedition charges against those involved in the Jan. 6 insurrection.
Twitter pushed back on Sherwin's request for the account's personal information, and federal officials refused to offer details as to the nature of the criminal investigation that led to the grand jury subpoena.
The subpoena was also subject to a gag order, which forbade the company from revealing the request to the unidentified user in question. Revealing those requests is embedded in the company's terms of service and is part of their normal legal process when claims are made against users. That gag order was lifted Monday morning. There is no ruling on the motion to quash in the docket report at this time.
And while Twitter’s reliance on Section 230 is usually the core of the company’s defense from Nunes’ and other unmasking claims, the company's motion to quash stresses the importance of concealing the user's identity under the First Amendment, as well.
“If the Subpoena seeks to unmask a Twitter user for engaging in protected speech critical of Congressman Nunes, as Twitter suspects could very well be the case given the litigation history detailed above, the Court should quash the Subpoena because it violates the First Amendment,” the motion reads. “As the custodian entrusted with the private identifying information that the government seeks, Twitter is concerned the Subpoena may not be supported by a legitimate law enforcement purpose, and that therefore, there cannot be any need — let alone a compelling need — for the government to unmask the user.”
The NunesAlt account, which refers to itself as the congressman’s "alt-mother" that's unhappy with his legislative work, took to their preferred medium to comment on the unmasking: “This is the closest thing I’m going to get to a Mother’s Day card,” they tweeted.
According to additional court docket information, Chief U.S. District Judge Beryl Howell gave the federal government until Wednesday to file a public version of their response to the motion to quash.
In an email, a spokesperson for Twitter said the company is committed to protecting users' freedom to expression.
“We have a strong track record and take seriously the trust placed in us to work to protect the private information of the people on Twitter,” they added.
Paul Alen Levy, an attorney for public watchdog Public Citizen Litigation Group, said the filing was unique but he wanted to see more from the government before suggesting any maleficence.
"That may tell us a good deal about what's going on here," he said of the expected federal response. "That this happened in November, under a previous administration, it could be chilling. But without knowing what the justification was, its hard to say much more."
Levy also clarified the gag order grant is not much of a surprise.
"The government comes to a judge and says someone committed a crime, Judges don't want to be responsible for the destruction of evidence," he said.
The judge's decision to release Twitter's brief unredacted could mean that the disclosure is either unlikely to cause harm, Levy said, or they "decided the right of First Amendment access outweighed that."
"The judge could be concerned whether the US Attorney's office has done something inappropriate for which they should be held accountable," he added.
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