from the left-the-agency-but-kept-his-followers dept
You are probably familiar with Ajit Pai, the former head of the Federal Communications Commission (FCC) famous for killing net neutrality rules, doing the Harlem Shake in a Daily Caller video, and drinking from an oversized coffee mug to appear funny and relatable.
You may be less familiar with Ajit Pai?s work on Twitter. Pai is proud of his Twitter use, and he likes to brag that he was the ?first [FCC] Commissioner on Twitter? (he set up @ajitpaiFCC the day he joined the FCC). Pai has sent over 31,000 tweets since creating his account in 2012.
But there?s something different about his account recently. Pai?s FCC account was created when he joined the FCC, and he used it to discuss his FCC work. After Pai resigned on January 20, 2021, the common practice at other agencies would be for Pai to stop using @AjitPaiFCC, since he was no longer Ajit Pai at the FCC. But instead, Pai removed ?FCC? from his handle and kept tweeting.
That may not be legal. Let?s use Pai as an example:
Ajit Pai Created His Twitter for Government Work
While Ajit Pai was at the FCC, his Twitter account was his official persona. He created his account on his first day at the FCC and put ?FCC? in his handle. His profile listed his position and linked to his FCC webpage. He tweeted about FCC work while sitting in the FCC building during FCC business hours. And the FCC linked his Twitter account on the FCC website next to his other government accounts, like his FCC email address and blog.
Source: January 18, 2013 capture from the Wayback Machine
When government officials use social media for government work, they have to follow rules around public records preservation and limits on what they can say. The National Archives issued guidance on this way back in 2013. Some officials use personal accounts to tweet about sports or food and go out of their way to emphasize when the account is personal, like ?tweets my own? or ?not an official account.?
Pai didn?t do that: this was his work account. He tweeted about the FCC ?making progress? on 911 dialing from hotels, shared his official FCC remarks about the FCC?s Lifeline program, and criticized an FCC decision he disagreed with. Not every tweet was about the FCC (he wished Bob Barker a happy birthday), but it was pretty clear that a tweet from @ajitpaiFCC was from the Ajit Pai appointed to the FCC by the president and not Ajit Pai the fun dad.
Instead of closing his FCC Twitter account (@AjitPaiFCC) when he left the FCC and moving to his existing personal one (@AjitPai), he kept both and changed their names. His government account, with 83,000 followers, became @AjitPai, and his personal account with fewer than 3,000 followers became @AjitPai_.
There are two problems with that. First, when Pai used the FCC account, his tweets were public records, subject to the Freedom of Information Act (FOIA). The FCC has to preserve the tweets for a set time period to comply with the law. With Pai controlling the account, the FCC can?t stop Pai from deleting old tweets whenever he wants. Second, because the account was created on government time for government use, it is government property. It was not Pai?s to take.
Ajit Pai?s Tweets Are Public Records, and You Have a Right to See Them
When government employees create material for government business, like emails or reports, those documents are federal records. Under the Federal Records Act, records must be saved for a set time period. An email from a low-level government employee might be saved for a few years, but communications from high-level officials are special and may need to be saved forever by the National Archives. The five FCC commissioners run the agency, so you would expect their official statements on social media to be treated as important records.
Most agencies deal with this by controlling the official?s Twitter account after that person leaves. This preserves the official communications from the then-public official to the public about their public service. That?s why if you look at Twitter accounts from former federal leaders, you?ll see that almost all of them are inactive.
Ajit Pai, now a private citizen, still has control over the records he created while serving as a public official. Usually, the First Amendment prevents government accounts from blocking social media critics. If you want to interact with his old FCC tweets, you better hope he didn?t block you for disagreeing with him in the past.
Or, if you?re me, two weeks after filing a FOIA request for Pai?s tweets you?ll see this:
This isn?t how federal records law works. Pai?s tweets are public records and belong under FCC control. But judging from the FCC?s response to my FOIA, the FCC has decided that Pai can keep his account as long as the FCC can download copies of his old tweets.
The FCC is wrong: (A) if you download your own Twitter data, you?ll see it doesn?t include information like the text of tweets Pai responded to or which accounts he blocked, and (B) federal records are the original documents created by public officials, not copies. If Ajit Pai wanted to keep his tweets, the law allows him to download his FCC Twitter data as copies of his records (subject to approval by the agency). The law does not allow the public to be left with inferior downloaded copies while Pai keeps the originals.
Fun fact: when I filed a FOIA request for Pai?s tweets, the FCC responded that it was building a webpage to host Pai?s old tweets on the FCC website. So instead of the FCC keeping the @AjitPaiFCC account and leaving it up for the public (which is free), it is spending taxpayer money to build new website so Pai can capitalize on his 83,000 followers.
Pai Does Not Own His Official Twitter Account and Should Not Profit From It
Most federal agencies(other than the FCC) recognize that when government officials create Twitter accounts to communicate in their official role as public servants, those accounts are government property. For example, the Defense Department has clear rules warning that social media account created for government use, including accounts with the name and position of an official (say, @AjitPaiFCC), are federal property and belong to the agency. The Department of Interior also has social media rules warning federal employees that social media accounts for ?official personas? used for ?official business and maintained using government resources (staff time, devices, etc.) are the property of the federal government.? The National Archives specifically says the best practice is to create ?create unique agency-administered accounts when an employee begins using social media for official purposes.? Pai did just that, creating a second handle when he joined the FCC and using it for FCC business.
Wow some of these highlighted details sound very familiar. Source: Department of Defense
When something belongs to the government, you can?t take it for yourself. There are regulations that prohibit government employees from misusing government property, and there are other regulations that prohibit using a public position for private benefit.
Why are those rules important? Well, imagine if a former official wrote a book and wanted to plug it to journalists who followed their government work. Ajit Pai?s FCC Twitter account is pretty valuable: it has 80,000 more followers than his personal one. That?s a lot of people to profit from.
Or take former FCC Commissioner Clyburn, who kept her account after she left the FCC in 2018. Her account still hosts her FCC tweets, like her dissent on Pai?s final decision to kill the net neutrality rules. A few months after Clyburn left the FCC, T-Mobile hired Clyburn to lobby in favor of its acquisition of Sprint, which required approval by ? the FCC. And now Clyburn tweets favorably about T-Mobile?s corporate work on the same account she once used for FCC business.
Not every FCC commissioner has done this. Former FCC Chair Tom Wheeler did the right thing and closed his account. He then directed interested followers to his personal account.
But the other three former commissioners face the constant temptation to use accounts created for public service for personal profit. These three commissioners ? Pai, O?Rielly, and Clyburn ? should not have kept their FCC Twitter accounts. And the FCC, which knows about this issue and allowed it to fester, should have created policies to prevent this from happening in the first place.
Your right to see statements by FCC commissioners should not depend on whether they block you after changing jobs.
Mark Gray is a lawyer in Washington, D.C. who writes about technology policy issues in his spare time. He is available on Twitter at @Mark_T_Gray. The views in this piece are entirely his own and do not reflect the views of his employer, the United States, or any of its agencies.