by Paul Alan Levy
Today we filed our brief on behalf of three anonymous Internet users who object to the breadth of the proposed orders submitted by the Government and by DreamHost, each spelling out their alternative versions of the how Chief Judge Robert Morin had articulated his ruling that enforced a narrowed search warrant commanding disclosure of files pertaining to the Trump inauguration protest web site at DisruptJ20.org. Given the constraints of the process, DreamHost properly limited its own arguments to language in the proposed orders that could be put forward as a fair implementation of decisions that Judge Morin announced at the end of last month's hearing. Our brief, however, being presented on behalf of Doe intervenors whose interests were not represented at the initial hearing, takes a step back to argue that the court should take a closer look at the government’s need to obtain emails sent by members of the public to the DisruptJ20 site. In particular, we question the constitutionality of compelled identification of the senders of such emails, as well as identifying members of the public who joined listservs to receive more information about the protests.
Problems With the Probable Cause Showing
We make two main arguments. First, we show that, very much contrary to the assumptions underlying the Government’s arguments for the search warrant, the DisruptJ20 web site was not a web site advocating or planning a riot. Rather, the site presented itself, at least, as reflecting the views of a broad umbrella group that was supporting a wide variety of inauguration protests. Taking advantage of the fact that, after the previous hearing, we were able to obtain the search warrant application and its supporting affidavit, we show several respects in which the search warrant affidavit had the potential to mislead the judge who signed off on the warrant. Although my view is that the search warrant never showed probable cause for any search of the web site’s materials, the brief argues that, in any event, there was no showing of probable cause to believe that the contents of communications from members of the public to the web site, and identifying information about those members of the public, contains any evidence of a crime or is needed to prosecute the two hundred individuals who have been charged with rioting. Our contention is that the prosecutors and the police are using the excuse of violent protest planned and perpetrated by a handful of people who really ought to be prosecuted for their violent conduct to attempt a broad fishing expedition into the peaceful and lawful protests of hundreds or thousands more people who communicated with the web site (DreamHost has not indicated the exact number of people whose identities are at stake here).
First Amendment Issues
That first argument is based on the Fourth Amendment, influenced by First Amendment concerns, but we also make an argument based entirely on the First Amendment, taking issue with the routine application of the so-called two-step process invoked for warrants in child pornography or commercial fraud investigations to the implementation of investigations into the political opponents of the Administration, and efforts to identify anonymous dissidents who communicated anonymously with the protest web site. We warn of the dangerous precedent being set in the very first few months of the Trump administration by enabling a fishing expedition into communications among Trump opponents, and of the chilling effect that would result if that fishing expedition is allowed to proceed.
For example, one of our Doe clients sent an email to DisruptJ20 only to offer to help with legal support work during the protests, and identifying the friend who had suggested that our client write. Our client wrote to a special email address created for legal help, legal@DisruptJ20.org. No doubt the police and prosecutors would like a window into the legal support network for demonstrations in Washington, D.C., but what legitimate purpose justifies their getting access to this information? There was another specific email address, media@DisruptJ20.org, established for questions from the media. No doubt the prosecutors and police would like to know what questions the media were asking and how those questions were answered, but again, what legitimate prosecutorial interest is served by providing such data?
We argue, therefore, for quashing the warrant for these documents entirely. At the very least, we argue for adoption of a much more careful process under which the Government has to justify obtaining access to communications to and from particular DisruptJ20 email addresses, and for access to the membership lists of particular listservs. Even then, under our proposal, the Government would have to provide justifications satisfactory to the judge, based on the contents of specific emails, before it identifies anonymous senders of these emails, not afterwards.
Bringing Additional Counsel into the Process
We also argue that the entire warrant compliance process for access to communications to and from members of the public should be put on hold until DreamHost gives notice to the Doe emailers so that they know that their anonymity is at stake and an opportunity to find counsel to protect their free speech interests. We have made arguments that protect the interests of the Does generally, but that is no substitute for having counsel who can talk to the actual Does and thus articulate to the Court how their interests are affected by the Court’s decisions. (The one thing I regret about DreamHost’s litigation decisions to date is that it has not, so far as I am aware, given notice to the anonymous people whose email addresses it has in the files subject to the search warrant). In addition, we suggest that the Court consider appointing guardians ad litem for the Does. For example, it would not be appropriate for me, as counsel only to three specific Does, to be given access to the contents of emails sent by other Does. Counsel appointed ad litem, however, could actually be given access to the emails in question to enable more specific arguments to be made for protecting specific example of the documents at stake. In theory, DreamHost could use the contents of specific emails to make such arguments, but, for understandable reasons, it has seen its role as arguing more generally.
UPDATE: The Electronic Frontier Foundation submitted an amicus letter arguing for a related set of limitations on the warrant execution process. Among its suggestions: that the Court interpose a special master between DreamHost and the Government, allowing the master to take some of the burden of reviewing specific documents off the court but also preventing the Government from obtaining files until the master has determined that they are within the legitimate scope of the warrant.
