by Paul Alan Levy
In a motion for leave to intervene filed today, three anonymous Internet users who sought information from the DisruptJ20 web site, who joined listservs through which such information was communicated, or who volunteered to provide legal support work for the range of nonviolent protest activities advertised on the site, are asking the Superior Court for the District of Columbia to protect their anonymity.
The United States and DreamHost have been negotiating over the terms of the proposed order that will reflect the ruling of Chief Judge Robert Morin at a hearing on the search warrant late last month. It is currently anticipated that the two sides will present rival versions of such an order next week; at that time, intervenors will lay out their legal analysis at greater length.
But at last week’s hearing, no Doe users whose email addresses are subject to the warrant were before the Court, in part because DreamHost has thus far not given any notice to those Internet users. It is apparent, therefore, that intervention is going to be needed to protect those legal interests.
Although Judge Morin imposed conditions that he felt struck an appropriate balance between protected speech under the First Amendment and the needs of the prosecutors, upon reflection, and having analyzed the search warrant application in light of the text of the web site in question, our concern is that the judge may have been deceived by a deliberately misleading affidavit from the DC police detective, as well as by the pious insistence of the prosecutors that they wish only to prosecute a riot without harming free speech. I see no basis for believing that the prosecutors care about free speech. They narrowed their search warrant only in response to overwhelming adverse public comment and, perhaps, the arguments in our motion for leave to intervene last week.
As a result, the judge has allowed a sweeping government intrusion into a web site whose purpose was to protest the leadership of that very government, giving prosecutors and police officials access to such documents as communications between the web site and those providing legal support work, communications between the site and the media, and the like. Once they have seen this information, they will not be able to un-remember it, even if such documents are later placed under seal. And all this despite the fact that the warrant application, by stressing the violent activities of small group who ran a different web site, obscured the fact that the government had no basis for believing that email addresses of outsider Internet users would provide any evidence of criminal activity.
That should not be allowed in a free society, especially given the apparent purpose of the Trump Administration to crack down on dissent — at least, dissent that does not come from its base on the alt-right.