DOJ Walks Back Its Demands For Info On Everyone Who Visited A Trump Protest Site As Some Of Those Visitors Protest Subpoena

from the oops,-didn't-mean-such-blanket-surveillance dept

Last week we wrote about a crazy warrant from the DOJ, effectively demanding information -- possibly identifying information -- on everyone who visited the site disruptj20.org, which had been used by people organizing protests of Trump's inauguration. When we wrote about it, the site's hosting company, DreamHost, had just announced that it was pushing back on the demand in court. On Monday of this week, some of the visitors to the site pushed back too. Public Citizen Litigation Group took on the case of five individuals who had visited the site, asking the court if they could intervene to oppose the warrant.

As Paul Levy, who wrote the briefs, noted in the accompanying blog post, there's a legitimate fear of our President creating an "Enemies List."

Although a warrant this broad would be disturbing in any administration, Internet users have every reason to be concerned in an administration led by a President who has shown intense intolerance for disagreement and a tendency to lash out with raw language and threats directed at political adversaries, and who has urged his supporters to attack protesters. The listing of all those who visited or interacted in any way with this web site could easily form the beginning of an “Enemies List” that would put Richard Nixon to shame.

Our clients in the intervention are five anonymous Internet users who viewed the web site, either to learn more about the protests, to coordinate their own protest activities; one of our clients was also a journalist whose reasons for visiting the site included reporting remotely on the protests. The Does object to allowing federal prosecutors to put their names on a list of potential enemies of the Trump Administration who are to be visited by FBI agents or hauled in for questioning by federal prosecutors. Our argument is based on the First Amendment right to read anonymously — analogous to the right to speak anonymously that we have litigated in many other cases; that right is now broadly accepted as a basis to refuse to enforce discovery to identify online speakers without evidence that the speakers have done something wrong.  The right to read anonymously has been addressed less often, but in drafting our papers on very short notice we were able to draw on an amicus brief we had filed ten years ago in the Maryland Court of Appeals.

However, just a day after those filings, the DOJ itself admitted that perhaps the warrant was a step or two too far and has responded to DreamHost, admitting that the original warrant was too broad and asking to modify the warrant to make it more narrow. The DOJ insists that it is just looking for actual criminal behavior, not building a list of Trump haters.

The Warrant--like the criminal investigation--is singularly focused on criminal activity. It will not be used for any other purpose. Contrary to DreamHost's claims, the Warrant was not intended to be used, and will not be used, to "identify the political dissidents of the current administration[.]"... Nor will it be used to "chill[ ] free association and the right of free speech afforded by the Constitution." In fact, as discussed further below, after conducting a careful search and seizing the evidence within the scope of the Warrant, law enforcement will set aside any information that was produced by DreamHost but is outside the scope of the Warrant; it will seal that information; and it will not revisit that information without a further court order.

The DOJ then suggests that part of the problem was that it didn't quite realize just how much info DreamHost might have had on visitors to this site, and thus it didn't realize that it was actually requesting so much:

The government is acutely aware that criminal investigations involving electronic evidence present unique challenges. One of those challenges is that some of the evidence -- particularly the full scope of the evidence -- will be hidden from the government's view unless and until the government obtains a court order or search warrant. That is an important part of the history in this case because much of DreamHost's challenge to the Warrant is based on information that was not known (and would not reasonably have been known) to the government when the Warrant was applied for and obtained. What the government did not know when it obtained the Warrant -- what it could not have reasonably known -- was the extent of visitor data maintained by DreamHost that extends beyond the government's singular focus in this case of investigating the planning, organization, and participation in the January 20, 2017 riot. The government has no interest in records relating to the 1.3 million lP addresses that are mentioned in DreamHost's numerous press releases and Opposition brief. The government's investigation is focused on the violence discussed in the Affidavit.

And, to make that even more clear, it agrees to amend the warrant:

Consistent with that focus, the government is asking this Court to enter a new Attachment B to the Warrant, and remains committed to minimizing the information that is ultimately seized for the government's criminal investigation.

While I imagine many people won't be willing to give the DOJ the benefit of the doubt here, I think it's entirely possible (and even likely) that the request for so much info was due to confusion and bumbling agents, rather than a nefarious plan to build an enemies list. I still think that there are serious concerns to be had about the warrant -- and it sounds like DreamHost still isn't comfortable with things either:

Notably, the government has attempted to have a dialogue with DreamHost about these matters. Regrettably, those attempts have proven unproductive because DreamHost maintains that the Warrant is improper and that the Court lacks jurisdiction to issue the Warrant... As recently as this past week, DreamHost told the government that it would provide no information about the Website without further legal process and--somewhat incompatibly--told the government that DreamHost would only discuss limiting the production of information called for by the Wanant if the government first withdrew the Warrant in its entirety

You can see the amended warrant at the end of the DOJ's filing. It still feels like a fishing expedition, but it's clearly not nearly as broad as before, where it may have included basically all IP addresses of anyone visiting the site.


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  • icon
    stderric (profile), 23 Aug 2017 @ 4:15pm

    I wouldn't worry about winding up on an Enemies List.

    I think it's more likely that Trump keeps a 'Not My Enemies' list.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 23 Aug 2017 @ 4:31pm

      Re: I wouldn't worry about winding up on an Enemies List.

      That would be

      [x] substantially
      [x] significantly
      [_] possibly
      [x] exponentially
      [x] sarcastically
      [x] laughably

      shorter.

      reply to this | link to this | view in chronology ]

      • icon
        stderric (profile), 24 Aug 2017 @ 7:25am

        Re: Re: I wouldn't worry about winding up on an Enemies List.

        Five DBAs & a 3-shift team of IT guys maintaining a building-sized server farm vs. a cocktail napkin & golf pencil. Although, I suppose an Enemies List would finally be the sort of thing to put the NSA's Utah facility to a real test.

        reply to this | link to this | view in chronology ]

  • identicon
    Max, 23 Aug 2017 @ 4:25pm

    Sorry but I'm firmly in anti-Hanlon territory these days - if it can be attributed to malice, then it sure as fuck isn't stupidity. YMMV, I'm sticking firmly to this.

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 23 Aug 2017 @ 4:33pm

    Appropriate Sanction

    Dear Judge:
    This subpoenae was a HUGE overreach, and it should be sanctioned by disallowing *ANY* subpoena or warrant to Dreamhost.

    Otherwise, there is no disincentive to the team for huge, overrreaching, rights-destroying subpoenas.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 23 Aug 2017 @ 5:38pm

    We caught 200 people, but we want to get more.
    We "mistakenly" asked to out 1.3 million people for investigation, just in case they might have done something wrong.

    This is a witch hunt.
    This is to try and scare people into thinking twice about even looking at anything against Trump.

    We had a man walk into a pizza place & shoot it up to "save" imaginary child victims... how much detail did the warrant for InfoWars demand?
    Or is some people who made some noise at the inauguration need more investigation than people willing to take up arms based on what a website told them?
    How much info did the warrant investigating the massive amount of death threats against the Sandyhook parents?

    Yes some people rioted, but allowing a huge drift net to be cast over a website is to far. Do we allow the cops to round up every person who went to a mall on a day when something happened? Do we allow them to round them all up & dig into their lives based on nothing more than having been at the mall with no other evidence?

    There are people saying everyone who went to the site OBVIOUSLY wanted to riot, and they are morons. I've gone to websites I don't fully support to see whats happening for myself. I've excused myself from conversations when people have started crossing the line in dealing with trolls. If a troll got shot, should I be outed & investigated because I saw that post & left?

    Visiting a website doesn't make you a criminal.
    Talking on a website doesn't make you a criminal.
    You become a criminal when you convert those words to actions... be happy with the 200 you took down & the contacts from those phones that lead to other actual rioters. Don't go fishing for someone who just wanted ideas for a sign or something to wear to express their dislike for Trump.

    reply to this | link to this | view in chronology ]

  • icon
    mhajicek (profile), 23 Aug 2017 @ 6:38pm

    “We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men – not from men who feared to write, to speak, to associate, and to defend causes that were, for the moment, unpopular” ― Edward R. Murrow

    reply to this | link to this | view in chronology ]

    • identicon
      Se Habla Espol, 24 Aug 2017 @ 12:11am

      Re:

      Better turn that Murrow fellow in to J. Beauregard Sessions' DoJ. He sounds like an Enemy of the PotUS.

      reply to this | link to this | view in chronology ]

    • icon
      Teamchaos (profile), 24 Aug 2017 @ 6:46am

      Re:

      "We will not be driven by fear into an age of unreason"

      Too late. We live in a world where 000's of violent counter protesters show up to fight against free speech. Unpopular, offensive speech is still free speech.

      reply to this | link to this | view in chronology ]

      • icon
        Dan Audy (profile), 24 Aug 2017 @ 6:26pm

        Re: Re:

        Boy those zeroes of violent counter protesters sure caused those Nazi's to equip themselves with riot shields, gas masks, and pepper spray before showing up and are very responsible for inciting the violence of allowing themselves to be run over. Monsters, those people are!

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Aug 2017 @ 7:21pm

    Don't be naive.

    "I think it's entirely possible (and even likely) that the request for so much info was due to confusion and bumbling agents"

    If that were the case, the DOJ could have changed it's mind *before* people had to resort to lining up at the courthouse door. It didn't. That tells me that the only reason it changed its mind was because it was afraid it would lose *in court*, not because it developed a sudden concern for people's rights.

    reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 23 Aug 2017 @ 8:54pm

      Re: Don't be naive.

      Perhaps I missed something somewhere, but to me it looks like nothing much changed. As I read it now, the government is basically saying, "Give us all the data anyway and we'll set aside any of it that we decide is too broad. Let's call the data that we set aside, 'not seized'; that should make you happy."

      But I seem to recollect that "seized" means "taken"...not "taken and set aside." course, they did promise to look at it before they set it aside, then they promised to seal it until they have a moment to go get another warrant based on what they saw.

      Not seeing a difference here.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 23 Aug 2017 @ 9:57pm

        Re: Re: Don't be naive.

        law enforcement will set aside any information that was produced by DreamHost but is outside the scope of the Warrant; it will seal that information; and it will not revisit that information without a further court order.

        Translation: "We still want everything, we just pinky-promise not to look at it again unless we get an okay from a judge."

        If they know what they're looking for then they can ask for just that. Unless they're capable of magically sorting stuff without checking it first they'll still have to review data to see if it's relevant, and they still want to keep it, the idea seems to be that they won't look at it again unless given permission by a judge.

        reply to this | link to this | view in chronology ]

        • icon
          stderric (profile), 24 Aug 2017 @ 8:08am

          Re: Re: Re: Don't be naive.

          Translation: "We still want everything, we just pinky-promise not to look at it again unless we get an okay from a judge."

          DOJ-style Escrow is... interesting.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Aug 2017 @ 11:03pm

        Re: Re: Don't be naive.

        Not seeing a difference here.

        EFF assessment: “DOJ Backs Down From Overbroad J20 Warrant. But Problems Still Remain”, by Mark Rumold and Stephanie Lacambra, Aug 22, 2017

        The new warrant parameters exclude most visitor logs from the demand, set a temporal limit for records from July 1, 2016 to January 20, 2017, and also withdraw the demand for unpublished content, like draft blog posts and photos.

        So there's some difference.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Aug 2017 @ 9:51pm

    "What was that? You didn't know?... Well that makes it a little better i gue-"...
    "What did you say?"
    "Oh - you didn't know it would blow up in your face."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Aug 2017 @ 9:58pm

    They probably just wanted to compare the list of this websites visitors with those from their hijacked pedophile website list.

    You know, to protect the children.

    reply to this | link to this | view in chronology ]

  • identicon
    peter, 24 Aug 2017 @ 2:23am

    Oh, ok then

    "the Warrant was not intended to be used, and will not be used, to "identify the political dissidents of the current administration"

    Oh well thats all right then. Just as long as that was not its intention. The fact that it *could* have been used is beside the point.

    Just as aside, it it ever turns out that *someone* (not saying who) did use it in a way that you assure us was not intended, just how much is your assurance worth in a court of law?

    reply to this | link to this | view in chronology ]

  • identicon
    peter, 24 Aug 2017 @ 2:32am

    I have a two year old with the same logic

    "DreamHost would only discuss limiting the production of information called for by the Wanant if the government first withdrew the Warrant in its entirety"

    Translation

    You saw your brother playing with a ball and just took it from him. Now you are upset because now he wont even play with you and have gone running to Mommy crying.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2017 @ 9:18pm

    Hamilton's not going to like this, is he?

    reply to this | link to this | view in chronology ]


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