DOJ Racks Up 90% Failure Rate In Inauguration Protest Prosecutions, Dismisses Final Defendants

from the win-some,-lose-a-whole-lot-more dept

The DOJ, after flailing wildly for most of the last 18 months, has dismissed the remaining defendants in its disastrous inauguration day protest prosecutions.

The US attorney's office in Washington, DC, announced Friday that it is dismissing charges against the remaining defendants charged in connection with anti-Trump demonstrations on Inauguration Day.

Police arrested 234 people on Jan. 20, 2017. Twenty-one people pleaded guilty. The final dismissal notice on Friday came after several trials in which prosecutors were unable to secure any convictions — defendants were either acquitted or jurors failed to reach a verdict.

The government still managed to land 21 convictions, even though its statement suggests it feels this isn't nearly enough, what with "$100,000 in damage to public and private property" occurring during the protests. It certainly isn't much considering the DOJ's original (human) dragnet held more than 200 arrestees.

But that wasn't the only dragnet the DOJ deployed. On its way to dismissing charges against 90% of the defendants, the DOJ also:

• Demanded access to the identifying info of all 1.2 million visitors to the Disrupt J20 website
• Demanded information from the accounts of 6,000 Facebook users
• Claimed arrested protesters were "hiding behind the First Amendment"
• Stated in court that the "beyond a reasonable doubt" jury instruction "doesn't mean too much"
• Hid dozens of videos it planned to use as evidence from defendants
• Attempted to prosecute journalists for attending the protests and documenting them
• Still wants to be able to jail people for discussing protests/rioting, via broad conspiracy charges

This is how it ends for the DOJ, which has largely lost its bids to install a chilling effect via over-broad "rioting" prosecutions. While it's true property was damaged during the protests, rounding up a couple hundred protesters is the opposite of targeted prosecution. If the DOJ hadn't been shutdown in its attempt to amass personal information on more than a million website visitors and Facebook members, the number of defendants would have been even bigger. The eventual dismissals would also have skyrocketed, so the government probably should be happy it walked away with anything at all.

Filed Under: 1st amendment, disrupt j20, doj, free speech, inauguration, j20, protests

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.

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

Government Drops Its Demand For Data On 6,000 Facebook Users

from the sunlight-disinfectant dept

It's amazing what effect a little public scrutiny has on government overreach. In the wake of inauguration day protests, the DOJ started fishing for information from internet service providers. First, it wanted info on all 1.2 million visitors of a protest website hosted by DreamHost. After a few months of bad publicity and legal wrangling, the DOJ was finally forced to severely restrict its demands for site visitor data.

Things went no better with the warrants served to Facebook. These demanded a long list of personal information and communications from three targeted accounts, along with the names of 6,000 Facebook users who had interacted with the protest site's Facebook page. Shortly before oral arguments were to be heard in the Washington DC court, the DOJ dropped its gag order.

The last minute removal of the gag order appears to have been done to avoid the establishment of unfavorable precedent. It looks like the government perhaps has further concerns about precedential limitations on warrants served to service providers. As Kate Conger reports for Engadget, the DOJ has decided to walk away from this particular warrant challenge.

In a court hearing today, the Department of Justice dropped its request for the names of an estimated 6,000 people who “liked” a Facebook page about an Inauguration Day protest, the American Civil Liberties Union said. The ACLU challenged several warrants related to protests against President Trump’s inauguration on Friday, one of which included the search, claiming they were over-broad.

The ACLU notes the judge seemed sympathetic to allegations of overreach. In response, the government has apparently reduced its demands to info from two arrested protestors' accounts and further limited the date range from which data is sought.

This isn't a good look for the government. Dropping demands before an order has been issued indicates the DOJ had some idea its demands were too broad. It also shows the government will make concessions, rather than risk adverse rulings.

Then there's the whole issue of seeking personal information on protesters. This sort of thing creates a very real chilling effect by threatening to turn over personal information to the same entity the protesters were protesting. Fortunately, the government has walked back most of its demands in both cases.

Filed Under: disruptj20, doj, inauguration, privacy, social media, warrant
Companies: aclu, facebook

DreamHost Wins Challenge Against DOJ's Overbroad Data Demands

from the the-Man-briefly-experiences-having-it-stuck-to-him dept

DreamHost has been fighting the DOJ and its breathtakingly-broad demand for information on all visitors to an anti-Trump website. This has gone on for a few months now, but the origin of the DOJ's interest in the DreamHosted disruptj20.org site traces all the way back to protests during Trump's inauguration.

Here's what the DOJ demanded DreamHost hand over:

a. all records or other information pertaining to that account or identifier, including all files, databases, and database records stored by DreamHost in relation to that account or identifier;

b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, e-mail addresses, business information, the length of service (including start date), means and source of payment for services (including any credit card or bank account number), and information about any domain name registration;

c. all records pertaining to the types of service utilized by the user,

d. all records pertaining to communications between DreamHost and any person regarding the account or identifier, including contacts with support services and records of actions taken.

These demands conceivably applied to every single one of the site's 1.2 million visitors. The DOJ scaled back some of its demands a week later, but also stated its attempt to "converse" (read: talk DreamHost into compliance) had been rebuffed, with the hosting company stating its desire to continue challenging the subpoena.

This demand for information would be in addition to a warrant it served to Facebook, seeking everything ever from the accounts of more than 6,000 users. This was served to Facebook, along with a gag order -- something the DOJ conveniently dropped the night before oral arguments, perhaps sensing it might be in for an unfavorable precedential ruling.

Chief Judge Morin of the DC Superior Court has issued a ruling on the DreamHost-targeting subpoena, and it's good news for everyone but the overreaching DOJ. DreamHost reports on the judge's order:

Under this order, we now have the ability to redact all identifying information and protect the identities of users who interacted with disruptj20.org before handing over any data to the court.

[...]

We are now required to hand over a drastically reduced amount of data to the government and will redact any identifying information from every scrap of it that relates to non-subscribers.

On top of that, the DOJ will have to submit search protocols and procedures to the court for approval before demanding further site visitor info and limit its requests to info it can show the court is linked to actual criminal activity (violations of DC's rioting statutes). The DC Superior Court will make final determinations on the validity of the government's data requests before any identifying information is released by DreamHost.

As the court notes in its order [PDF], it's not interested in assisting the government with its fishing expeditions.

Because of the potential breadth of the government's review in this case, the Warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the Court has previously stated, while the government has the right to execute its Warrant, it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities.

And this still may not be the end of the DOJ's problems. Even if revised info demands are approved by the court, there are still a handful of potential investigation targets (site visitors and owners) readying their own challenges of the government's data requests. At this point, site visitors who've already attempted to challenge the subpoena obviously don't know if they're actually targeted by the DOJ. The court has dismissed their appeals without prejudice, which will allow them to refile if they make the government's final cut.

This is good news for everyone who avails themselves of third-party services (which is pretty much everybody). A little pushback sometimes goes a long way. Anyone seeking to keep their private info private should be taking note on who's willing to challenge the government's overreach and who's willing to act as little more than a data broker for law enforcement agencies.

Filed Under: disruptj20, doj, fishing expedition, inauguration, privacy, protests
Companies: dreamhost

DOJ's Facebook Warrants Target Thousands Of Users For Protesting Inauguration

from the round-up-the-usual-social-media-accounts dept

The ACLU is going to court to fight government warrants seeking info on thousands of Facebook users who interacted with a Facebook page related to Inauguration Day protests. The resulting arrests have generated several extremely broad search warrants seeking communications and other personal information from Facebook and the protest site's hosting provider.

For awhile, the targets of these warrants could only be guessed at, thanks to the gag order attached to the Facebook warrants. The gag order was finally lifted by the DOJ less than a day before it was due in court for oral arguments. It wasn't Facebook securing a win so much as it was the government avoiding a loss -- a possibly-precedential ruling on gag orders in Washington, DC courts.

The fight goes on, with the charged protesters -- and Facebook itself -- fighting the overbroad warrants.Thanks to the last-minute lifting of the gag order, the targeted protesters are fully aware of the government's efforts. More importantly, they're able to participate in challenging the warrants before the government takes possession of their personal data.

Paul Levy of Public Citizen points to the latest filing by the ACLU, and makes it clear there's a lot of personal info at stake.

Lacy MacAuley and Legba Carrefour… were identified on the DisruptJ20.org web site as media contacts for that web site. The demand for a search of the DisruptJ20 Facebook page is troublesome for the same reason that the demand for the search of the DisruptJ20.org web site threatens First Amendment values — even if we assume that some member of the grouping that called itself DisruptJ20 organizers was at the same time secretly plotting a riot, that not should be a basis for subjecting everybody who was in touch with the DisruptJ20 Facebook page to investigation by Trump Administration prosecutors.

The demand to search the Facebook accounts of MacAuley and Carrefour is even more troubling. Individual Facebook accounts often contain highly personal matters, and if political opponents of the Trump Administration know that they can too easily have their entire Facebook accounts searched just because it turns out that some coalition of which they were a part included somebody who was secretly planning a riot, the chilling effect on future participation in anti-Trump political activity could be substantial.

The chilling effect -- and the demands for data -- go much further than these two individuals. A third warrant seeks access to info on the DisruptJ20 Facebook page. With this warrant, the government can obtain data on thousands of Facebook users.

Although the page is public, the warrant would require the disclosure of non-public lists of people who planned to attend political organizing events and even the names of people who simply liked, followed, reacted to, commented on, or otherwise engaged with the content on the Facebook page. During the three-month span the search warrant covers, approximately 6,000 Facebook users liked the page.

This echoes the tactics used by the DOJ against Dreamhost. The warrant served to the service provider originally asked for info on all visitors to the DisruptJ20 site -- 1.3 million users in total. These expansive demands create a massive chilling effect. Any activists and event organizers could easily have their digital lives turned upside down simply by visiting pages and websites the government chooses to target post-demonstration. The warrant for visitors to the Facebook page may only seek a list of visitors, but it's likely the first step in seeking additional warrants to gather a wealth of personal info on people who did nothing more than "like" a Facebook page.

What the government wants on the two charged demonstrators is... everything. The warrants [PDF] not only ask for everything they've posted to Facebook, but the contents of private messages, any Facebook searches they've performed, deleted posts/comments, and any pending or rejected Friend requests.

The ACLU is trying to quash these warrants on behalf of the targets, but it first has to get the DC criminal court's official invitation. Its motion to quash/intervene [PDF] is currently awaiting the court's examination.

It's unusual basic rioting charges have resulted in a Fourth Amendment battle, but that's how much social media has shifted the way we communicate. As we spend more and more time online, the government is going to be showing less and less interest in our physical houses and papers. And even as the government avails itself of vastly-increased amounts of personal information, it's keeping its own houses/file cabinets locked up tight: Post-demonstration rioting charges are standard operating procedure for law enforcement agencies, which makes you wonder what they're trying to hide behind gag orders and sealed dockets.

Filed Under: doj, free speech, gag order, inauguration, protests, warrants
Companies: facebook

Government Drops Facebook Search Warrant Gag Order At Eleventh Hour

from the preventative-action dept

Facebook has won its challenge against a warrant gag order. Unfortunately, it's more of a case of the government forfeiting than the social media giant raising a successful challenge.

Details from the case are limited, but the warrant appears to target protesters arrested during Trump's inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government's demand for 90 days of Facebook activity from three accounts. But there's no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work.

Here are the details, from Zoe Tillman at Buzzfeed.

According to court papers filed jointly by Facebook and the US attorney's office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had "progressed ... to the point where the [nondisclosure orders] are no longer needed."

The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government's request, making Facebook's appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon.

This leaves the government's case intact and mostly buried. The now-lifted gag order wasn't indefinite: it allowed Facebook to notify users 30 days after info was handed over to the government. But so far, no info has been handed over, which means the clock hasn't budged on eventual disclosure. Now Facebook can inform the users affected, but the government's removal of the gag order suggests disclosure never posed any real risk to the government's investigation.

The government probably sensed things wouldn't go completely its way after the DC Appeals Court asked other interested parties to submit briefs on the issue. Multiple tech companies have challenged government search warrants and gag orders in last few years, resulting in a handful of small wins on the civil liberties front. Faced with this shift in judicial behavior, the government ditched this case just before public arguments were set to begin.

The lack of a positive precedential rulings hurts, but there's no shortage of gag order challenges to be had. As Facebook's own data shows, more than half the requests it receives from US law enforcement come with gag orders attached. The FBI's liberal use of National Security Letters adds to that percentage, but statutorily-limited reporting makes it impossible to tell how often the feds demand info and vows of silence simultaneously.

Filed Under: doj, gag order, inauguration, search warrant, social media
Companies: facebook

DOJ Goes Way Overboard: Demands All Info On Visitors Of Anti-Trump Site

from the the-doj-going-too-far?-what-a-surprise dept

Not all search warrants are bad. Indeed, most of them are perfectly legitimate, and meet the qualifications under the 4th Amendment that there is probable cause of a crime being committed, and the warrant is narrowly tailored to seek out evidence to support that. But... not always. As Ken "Popehat" White explains in a recent blog post, the Justice Department has somehow obtained the mother-of-all bad search warrants while trying to track down people who were involved in protests of Donald Trump's inauguration back in January. The government has brought felony charges against a bunch of protestors from the inauguration, and now it appears the DOJ is going on a big fishing expedition.

As Ken notes, it's quite likely that some protestors committed crimes, for which they can be charged, but prosecutors in the case have decided to go ridiculously overbroad in trying to get any info they can find on protestors. They got a search warrant for the well known hosting company DreamHost, which hosts the site disruptj20.org (as an aside, the fact that a site like that doesn't default to HTTPS for all connections is really, really unfortunate, especially given the rest of this article). The warrant basically demands everything that DreamHost could possibly have on anyone who did anything on disruptj20, including just visiting. As White notes in his post, it's not that unreasonable that the DOJ sought to find out who ran the site, but now they're requesting basically everything, which likely includes the IP addresses of all visitors:

a. all records or other information pertaining to that account or identifier, including all files, databases, and database records stored by DreamHost in relation to that account or identifier;
b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, e-mail addresses, business information, the length of service (including start date), means and source of payment for services (including any credit card or bank account number), and information about any domain name registration;
c. all records pertaining to the types of service utilized by the user,
d. all records pertaining to communications between DreamHost and any person regarding the account or identifier, including contacts with support services and records of actions taken.

DreamHost, quite reasonably, found this to be somewhat overbroad and refused to immediately reply, instead having a lawyer ask the DOJ to clarify the request, while making it clear it felt the warrant was likely both vague and overlybroad. The DOJ then asked the court to compel the company to hand over the info, insisting there is "no legal basis for failing to produce" the requested information. DreamHost has now responded in court, saying that the warrant violates the 4th Amendment and appears to endanger the 1st Amendment rights of protestors. They also claim that it violates the Privacy Protection Act and that there are some jurisdictional issues with it as well. DreamHost also has a nice blog post about the whole thing:

This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.

Or, as the filing notes:

Where a search warrant endangers First Amendment interests, the warrant must be scrutinized with “particular exactitude” under the Fourth Amendment. See Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978). “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 701 (1992) (Kennedy, J., concurring). The government’s search warrant (“Search Warrant”) here requires non-party DreamHost, LLC (“DreamHost”) to turn over every piece of information it has about every visitor to a website expressing political views concerning the current administration. This information includes the IP address for the visitor, the website pages viewed by the visitor, even a detailed description of software running in the visitor’s computer. In essence, the Search Warrant not only aims to identify the political dissidents of the current administration, but attempts to identify and understand what content each of these dissidents viewed on the website. The Search Warrant also includes a demand that DreamHost disclose the content of all e-mail inquiries and comments submitted from numerous private e-mail accounts and prompted by the website, all through a single sweeping warrant.

The Search Warrant cannot survive scrutiny under the heightened particular exactitude standard required by the presence of the First Amendment issues. It fails to identify with the required particularity what will be seized by the government. It also fails to provide DreamHost with any assurance that the government will return or destroy the large portion of the information irrelevant to the government’s criminal case or cases. These features render the Search Warrant unreasonable under the Fourth Amendment. In addition, the Search Warrant violates the privacy protections of the Privacy Protection Act, a statute enacted specifically to address such instances, and is without a jurisdictional basis.

As Ken White points out, this fishing expedition by the DOJ should concern us all:

The Department of Justice isn't just seeking communications by the defendants in its case. It's seeking the records of every single contact with the site — the IP address and other details of every American opposed enough to Trump to visit the site and explore political activism. It seeks the communications with and through the site of everyone who visited and commented, whether or not that communication is part of a crime or just political expression about the President of the United States. The government has made no effort whatsoever to limit the warrant to actual evidence of any particular crime. If you visited the site, if you left a message, they want to know who and where you are — whether or not you did anything but watch TV on inauguration day. This is chilling, particularly when it comes from an administration that has expressed so much overt hostility to protesters, so relentlessly conflated all protesters with those who break the law, and so deliberately framed America as being at war with the administration's domestic enemies.

Of course, the DOJ overreaching is nothing new. We just spent eight years highlighting DOJ overreach during the Obama administration (and another eight of overreach under the Bush administration). But it is particularly scary to see just how far this overreach is and that it's coming from an administration that has shown itself to be significantly less tolerant of the First Amendment rights of protestors than basically any predecessor.

Filed Under: 4th amendment, disruptj20, doj, donald trump, fishing expedition, inauguration, warrant
Companies: dreamhost