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

Legal Issues

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.

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