DOJ Sent A Grand Jury Subpoena To Twitter Demanding The Unmasking Of A Twitter User Being Sued By Devin Nunes

from the lots-of-wtf-going-on-here dept

For the past couple of years, Devin Nunes has been suing Twitter users over obviously satirical accounts that use his name, the most famous of which is “Devin Nunes’ Cow.” He has yet to succeed, but he has managed to clutter the courts with a bunch of vexatious litigation that, so far, has only proved Devin’s skin is mighty thin and that he should definitely make better choices when it comes to choosing legal representation.

I suppose if Nunes wants to blow money on lawsuits that are doomed to fail, that’s his business. Unfortunately, the victims of his bullshit lawsuits are having their time and money sucked away by a man so apparently powerless he cannot handle criticism without getting the courts involved.

But there’s a new wrinkle and some new dollars being spent. This latest development — a few months delayed thanks to a gag order — involves the expenditure of money contributed by a whole lot of non-parties: US taxpayers. One of the last things the Trump DOJ did before it became Biden’s DOJ was send Twitter a grand jury subpoena demanding identifying information from one of the Twitter accounts being sued by Nunes. (h/t Kevin Poulsen)

Given Nunes was suing individuals in civil suits, it’s hard to see how or why the Department of Justice got involved, much less why this is a grand jury issue. Sure, Nunes may have made wild allegations about RICO violations and illegal impersonation, but no one has made any credible allegations about actual criminal activity, much less federal crimes.

And yet, here we are, looking at the DOJ’s (granted) request [PDF] to keep Twitter from talking about this subpoena (dated November 23, 2020) and Twitter’s motion [PDF] to quash the ridiculous, First Amendment threatening demand for account information.

The only thing that can be confirmed about the DOJ’s (apparently ongoing) investigation is that the government believes the NunesAlt account said something threatening to someone (presumably Nunes) at some point in time. Not that the DOJ bothered to explain any of this in its subpoena.

The Gag Order prohibits Twitter from “disclos[ing] the existence of the Subpoena to any other person (except attorneys for PROVIDER for the purpose of receiving legal advice) for a period of 90 days (commencing on the date of this Order)” because it finds “reasonable grounds to believe that such disclosure will result in flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.” Schottlaender Decl., Ex. B. The Gag Order does not describe the basis for this finding, and Twitter has not received any information from the government about the “reasonable grounds” upon which the Gag Order was based.

Twitter had to approach the DOJ to get clarification. It got some, but not much.

Twitter’s counsel asked whether the government could offer any information about its investigation that may alleviate Twitter’s concerns. Counsel for the government stated that he understood Twitter’s concerns and would attempt to learn more about the investigation and about what he could share with Twitter. Shortly thereafter, the government stated that it was investigating “potential violations of 18 U.S.C. Section 875(c) (threatening communications in interstate commerce).” Twitter asked whether the government could share the threatening communications at issue, or otherwise state whether those threats had been directed to Congressman Nunes. The government replied that it would not provide any additional information about its investigation.

That’s the basis for the grand jury. And without more, it seems like a pretty specious use of federal resources. Plus, as Twitter points out in its motion to dump the subpoena, this seems to be more about making critics of Nunes feel threatened than about any threats Nunes (or someone else) received.

It appears to Twitter that the Subpoena may be related to Congressman Devin Nunes’s repeated efforts to unmask individuals behind parody accounts critical of him. His efforts to suppress critical speech are as well-publicized as they are unsuccessful. He recently sued Twitter, attempting to hold it liable for speech by the parody Twitter accounts @DevinCow, @DevinNunesMom, @fireDevinNunes, and @DevinGrapes, and asking the court in that case to order Twitter to disclose information identifying those accounts. Each of these accounts were engaged in anonymous political speech critical of Congressman Nunes. That suit was dismissed against Twitter in June 2020 because Twitter cannot be liable for information originating with a third-party user of its service, but it appears to still be an active lawsuit against the Twitter users @DevinCow and @DevinNunesMom. Shortly thereafter, Twitter received the Subpoena. Public Tweets posted by the Account indicate that it may be operated by the same user as @DevinNunesMom. Congressman Nunes’s attorney also sought third-party discovery from Twitter to unmask the @DevinCow account in an entirely unrelated case.

Given Congressman Nunes’s numerous attempts to unmask his anonymous critics on Twitter—described in detail herein—Twitter is concerned that this Subpoena is but another mechanism to attack its users’ First Amendment rights. Recent litigation also alleges that Congressman Nunes may be using the government to unmask his critics. See Declaration of Hayden Schottlaender (“Schottlaender Decl.”), Ex. D. Twitter respectfully asks the Court to determine whether the government has a “compelling interest” in obtaining the Account’s basic subscriber information, or, on the other hand, is endeavoring to unmask someone merely for engaging in speech critical of Congressman Nunes.

That’s really what appears to be happening here. The DOJ decided to work on the behalf of Devin Nunes, using unproven claims of issued threats as the foundation for demands for personal info. Sure, it may just be a coincidence that the DOJ is targeting one of Nunes’ critics (and lawsuit defendants), but it’s asking a lot from everyone to believe this coincidence had nothing to do with the Congressman’s tireless support of Donald Trump and the DOJ’s own obeisance to Number 45 during Bill Barr’s tenure as the Attorney General.

Twitter’s concern is plausible: the DOJ was mobilized to target a critic of a powerful lawmaker over what is likely protected speech. The DOJ needs to act in utmost caution in cases like this. And maybe it did. But even if it’s completely in the right, Nunes and his constant suing of critics make it difficult to see this as anything other than the federal government getting into the business of keeping Devin from having his feelings hurt.

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Comments on “DOJ Sent A Grand Jury Subpoena To Twitter Demanding The Unmasking Of A Twitter User Being Sued By Devin Nunes”

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23 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

Hard to provide what you don't have after all

Twitter asked whether the government could share the threatening communications at issue, or otherwise state whether those threats had been directed to Congressman Nunes. The government replied that it would not provide any additional information about its investigation.

Well that certainly cleared up whether that was a legitimate demand and investigation as opposed to one who’s goal was just intimidation of people saying mean things about/to Nunes, though probably not in the way that Nunes/the DOJ thought it did.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Umm.

Because the problem is he’s in one of California’s rural counties. They unfortunately, tend towards Trump. Otherwise, we’d have dumped him on his butt when we had the chance.

The worst part is, the Sacramento Bee has reported on his numerous issues. But obviously, his constituents aren’t interested in listening.

fairuse (profile) says:

Re: Umm.

No evidence. I Reckon there is dirt that some "farmer" from (place) keeps in a jar, for emergencies.

I have no idea how much watershed damage a diary farm can do. Growing up dealing with Hogs and rows of garden crop with a small pond — Animal waste in fresh water .. Chart says Nitrates, Ortho phosphates ..

Taking care of livestock means taking care of your groundwater and ponds. Big Agra in his pocket? Never mind Not-My-Problem.

Anonymous Coward says:

Re: Re: Re: Umm.

Aye but Nunes doesn’t have cows in California anymore, minus the one that hid from the relocation and now ridicules him with Tweets. The rest of the cows are in the midwest now, but Nunes’s constituents ignore this fact and are not moooved.

So it’s Nunes himself who’s engaging in defarmation.

Tanner Andrews (profile) says:

Re: Re: Umm.

Hog farms in eastern NC generate enough waste to create a problem. They get seriously worried when hurricanes threaten because the “lagoons” may overflow or have their contents pushed out into waterways.

A little bit of manure is fertilizer. A great lot of it is a smelly problem. And in waterways, it is the precursor to algae blooms and fish kills.

This comment has been deemed insightful by the community.
Thad (profile) says:

Given Nunes was suing individuals in civil suits, it’s hard to see how or why the Department of Justice got involved

Bill Barr is an authoritarian who used the DoJ to protect Trump and his cronies, and retaliate against their enemies.

That wasn’t hard to see at all; they did it right out in the open.

This comment has been deemed funny by the community.
JoeCool (profile) says:

DId they just?

but it appears to still be an active lawsuit against the Twitter users @DevinCow and @DevinNunesMom. Shortly thereafter, Twitter received the Subpoena. Public Tweets posted by the Account indicate that it may be operated by the same user as @DevinNunesMom.

Did they just call Devin Nunes’ mom a COW? Hmm… yes, I believe they did. Maybe Devin should be suing THEM for defamation. 😉

sumgai (profile) says:

Re: Re:

Indeed. I’m thinking that we spent more than half a century getting out from under J. Edgar’s proclivity to use the FBI (the forerunner of today’s DOJ) as his personal weapon against all enemies, perceived or real. It took #45 only 15 minutes or so to basically push the Reset button, setting us all back 50 or 60 years. Hoover himself must be cackling up a storm.

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