December 15, 2017

Whatever low-level U.S. Department of Transportation employee manages their social media accounts was undoubtedly shocked earlier this year to find that just two clicks of a mouse could theoretically send them to federal prison for up to two years.

A new Government Accountability Office report alleges that whoever ran the USDOT Twitter account dedicated to air traffic control reform (@SmarterSkies) last July violated the Antideficiency Act when they clicked the “retweet” and “like” buttons beneath a tweet by publisher Steve Forbes urging support for an aviation reauthorization bill being pushed in the House by Transportation and Infrastructure chairman Bill Shuster (R-PA). Violations of the Antideficiency Act (ADA) are punishable by up to two years in prison (the text of the Act is now codified in title 31, United States Code – the rules are in sections 1341 and 1342 and the penalty is in section 1350). The ADA is one of the key means by which Congress controls its “power of the purse” and makes it a crime to use federal resources without budget authority or for purposes for which the use of budget authority is specifically prohibited.

(Ed. Note: Section 1350 says that in order to get jail time, you have to “knowingly and willfully” violate the Act, which almost certainly did not happen in this case. And GAO says that in the 146-year history of the ADA, no individual has ever been criminally prosecuted. Nevertheless, it’s the felonious nature of ADA violations that forces executive branch agencies to take ADA violations very seriously indeed. And the ADA was the underlying criminal act in some famous scandals, like Iran-Contra (using federal resources to arm the Nicaraguan rebels despite the fact that Congress had passed a law prohibiting the use of any federal appropriations for such purpose.))

Facts:

• On July 12, 2017, whoever at USDOT ran the @SmarterSkies account retweeted and liked a tweet from @SteveForbesCEO urging individuals to “tell Congress to pass” the Shuster FAA bill.
• The tweet contained a link to a website which “contained data fields for individuals to enter their contact information to send an auto-generated email to their Members of Congress.”
• An appropriations proviso contained in each year’s General Government Appropriations Act and which, for fiscal 2017, was found in section 715 of the Financial Services and General Government division of the omnibus appropriations act (statute page 380) prevents any appropriations in fiscal 2017 from being used “by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.”
• Someone at the DOT General Counsel’s office noticed the retweet the next day and asked that it be taken down because it was too close to legislative advocacy, and the retweet was deleted within an hour of the request. But no one thought to “unlike” the tweet and so it stayed visible on the Twitter feed for another month.

GAO’s legal conclusions:

• “to violate the governmentwide anti-lobbying provision, there must be a clear appeal by an agency to the public to contact Members of Congress and that appeal must be in support of or in opposition to pending legislation.”
• “Here, both elements of the governmentwide anti-lobbying provision were met. The language of the tweet and the linked page therein clearly directed the reader to contact Members of Congress by unequivocally stating, ‘Tell Congress to pass the AIRR Act’ and ‘Tell Congress to support air traffic control reform!’ Further, the linked page contained data fields for individuals to enter their contact information and send an auto-generated message to their Members of Congress. Finally, the language was specifically in support of the AIRR Act, which was and still is pending in Congress.”
• “Although DOT was not the author of the tweet, DOT, by retweeting and liking it, not only endorsed the message, but also created agency content.”
• “…including a hyperlink forms an expressive act and conveys a message that is informed by the linked content.”

This appears to be GAO’s first Twitter-related determination. The new opinion relies heavily on the reasoning of a December 2015 opinion regarding the EPA. In that case, Republicans in Congress were upset that the EPA under President Obama had used a variety of social media accounts for grass-roots lobbying in favor of the pending “Waters of the United States” rule. But in that case, there was a clear campaign across many social media platforms in which the messages were generated directly by EPA employees – not a simple, one-time retweet of content generated by someone else.

The GAO opinion notes that the DOT General Counsel disagrees with GAO’s interpretation of the law in this instance. DOT believes that since the original tweet was clearly labeled as coming from Steve Forbes, it should not be considered DOT work product. DOT also points to an internal Inspector General investigation that reported that none of DOT’s other efforts on behalf of the Shuster bill violated federal anti-lobbying laws but did report the Forbes tweet to GAO.

GAO recommends that DOT report the ADA violation to Congress and then “determine the cost associated with the prohibited conduct” so the Appropriations Committees can figure out how much to dock their next appropriation. Based on the hourly rate of a Schedule C social media manager times the fraction of a second that it takes to click the “retweet” and “like” buttons, this may be the smallest dollar value of an ADA violation in history. But GAO notes that “there is no de minimis violation of grassroots lobbying. A violation occurs regardless of how much the initial and remedial actions cost.”