Court Denies Government's Demasking Demands In Inauguration Protest Case

from the settle-down,-boys dept

Nine months after the DOJ's Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain.

The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20's Facebook page. If these hadn't been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users' accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn't be allowed to keep it.

The government claimed evidence of criminal activity -- specifically violation of DC's rioting laws -- would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it's still seeking a whole lot of communications presumably unrelated to the underlying charges.

The district court has modified the warrants via a court order, paring back the government's demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) -- one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming.

On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page.

Perhaps impelled by the ACLU’s excellent briefing of the issue, his opinion contains an extended discussion of the two-step process, and of the importance of adapting that process to constrain searches that might otherwise intrude too deeply in protected political expression and create a chilling effect on future online political expression. Even more clearly than he did in his DreamHost rulings, Judge Morin states squarely that the government has never shown probable cause to believe that communications of anonymous third parties with the accounts themselves contain evidence of criminal activity charged in the indictment. Consequently, the third parties’ identifying information was entitled to be protected from disclosure pursuant to the order enforcing the search warrant.

If this is more than a DOJ fishing expedition, the government will need to move fast to get users stripped of their anonymity. Prosecutors are expecting to go to trial sometime in November, and Judge Morin won't approve the release of identifying information unless the government can hand over compelling reasons to de-anonymize particular Facebook users. As for Facebook, it claims manual redactions of the requested communications will take at least three weeks, so the government may have to talk a judge into delaying the trial or possibly face having to dismiss some charges.

According to Levy, that's the best part of the opinion, one that will probably be cited by others challenging overbroad search warrants. The rest of it is less spectacular, with some of it downright concerning.

While the order protects the identities of users who interacted with the page, it will not protect their communications. The government may not have full access to private messages, but it will apparently get a copy of anything matching certain keywords. The users targeted directly by warrants (as opposed to a targeted Facebook page) will see even more of their private communications exposed. This is troubling because much of what was discussed will likely be the sort of speech the government is supposed to protect. After all, DisruptJ20 was a protest group. Some protests may turn into riots, but it's unlikely the genesis of those riots are contained in Facebook private messages.

Worse, as Levy points out, there's still a whiff of fishing expedition in the air. Without clearer justifications for the search demands, the government appears to be engaged in the chilling of political speech.

Even assuming that there is sound reason to believe that some material on any of these pages relates to the riot, the DisruptJ20 page as well as the individual pages will have a great deal of political expression unrelated to the riot. A colloquy between Judge Morin and the Assistant U.S. Attorney during the hearing suggested that photographs of riot activity may have appeared on the pages at one time, and that the government hopes its search warrant can provide access to photos that would help identify participants, and lead to information about the photographers who can be subpoenaed to authenticate them. Given the continued secrecy of the probable cause affidavits, we cannot be sure what other bases the government may have given for the search of these three accounts.

So, the government may still be allowed to fish, but it will have to use a shorter line. But overall, it appears the government needs to expect to have a lot more of its warrants challenged if it appears to be targeting a whole bunch of people and their protected speech.

Update: Public Citizen has filed a motion for reconsideration [PDF], asking the court to take another look at one of its questionable search constraints. The filing points out the court appears to contradict itself in its ruling, possibly giving the government full access to communications of innocent parties, constrained only by redaction of indentifying information.

Doe l, Doe 2, and Doe 3 move the Court to clarify and, if need be, to modify in one narrow respect, its final order regarding the manner in which the search warrants to Facebook seeking data from the accounts of Lacy MacAuley and Legba Carrefour will be executed. There is an ambiguity in the language on page 15 of the Court's order with respect to the redactions that Facebook is to make from the data in MacAuley and Carrefour accounts before the information is turned over to the government for "front to back" review. One reading of the language is that any content posted by innocent third parties is to be redacted; another is that only identifying information is to be redacted from such content, after which that content, like the content posted by MacAuley and Carrefour, is to be subject to "front to back" review. If the latter is the proper interpretation, then the Does ask for reconsideration, based on the contention that a factual distinction drawn in the Court's opinion about how Facebook accounts work is incorrect, and not supported by the record.

The filing also asks the court to reconsider its denial of Public Citizen's motion to intervene. As is explained in Levy's blog post, Judge Morin's order in the Dreamhost case (related to the DisruptJ20 website and a warrant that targeted more than a million site visitors) greatly benefited from expert analysis and other contributions from intervenors. The same sort of expertise would further refine the restraints imposed on the government's search efforts as well as give the three parties challenging the warrant more legal knowledge to work with.

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Filed Under: anonymity, demasking, disruptj20, doj, inauguration, protests
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