by Paul Alan Levy
This morning we filed a motion for leave to intervene in the proceeding, now assigned to Chief Judge Robert Morin of the Superior Court for the District of Columbia, in which DreamHost has been opposing the implementation of a warrant for all files connected with the DisruptJ20 web site that carried information about a range of protests planned for Washington, DC and around the country against the inauguration of Donald Trump. The warrant was issued by the Superior Court trial judge who is charged with trying the cases of two hundred individuals who were arrested and charged with vandalism and assault carried out by the so-called “black bloc” during the inauguration protests.
“All files” would include the server logs that would reveal the IP addresses of each and every visit to the protest site; indeed, the search warrant expressly demands the production of “log files” those IP addresses are the first step in the chain of discovery that would lead to the identification of the members of the public who visited the web site. For Internet users who have static IP addresses, the IP address alone could be identifying. It strikes me as quite possible that the trial judge who signed this warrant was unaware of its broad reach.
Happily Dreamhost, the hosting company for the web site, refused to comply with the warrant out of concern for its overbreadth; instead of discussing these issues, the Government simply moved for an order to to compel DreamHost to comply with the warrant, claiming broadly that the web site had been “used in the development, planning, advertisement and organization of a violent riot that occurred in Washington, D.C. on January 20, 2017.” DreamHost opposed the motion to show cause, and the issue was reassigned to the Superior Court’s chief judge. It was only because DreamHost blogged about its resistance that many Internet users learned that their private viewing of the web site was threatened.
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.
Having looked not only at the existing DisruptJ20 web site but at older versions of the web site archived on the Wayback Machine, the proposition that this web site had much to do with the coordination of the activities of Black Bloc rioters strikes me as highly dubious. The web site plainly supported the concept of disrupting the inauguration by, for example, blocking entrances, but I could not find any advocacy of destroying property or assaulting Trump supporters or the police patrolling the scene.
Still, it is for others to address whether there is any basis for compelling production of any material connected with this web site. Before the Government gets identifying information about every person who visited a protest web site, it ought to be required to make a powerful showing of the need to obtain such information. It seems unlikely that such a showing can be made.
Has the government sought similar log files and records for the Daily Stormer?
If yes, should Public Citizen, ACLU, or others fight that too, on the grounds that some, many, or most of the visitors to DS are not implicated in Charlottesville riots?
If not, is that further evidence of a prosecutorial bias? It would seem very alarming.
For the record, my own position is strongly in favor of fighting this subpoena, but also in favor of a symmetrical defense of the Daily Stormer, however distasteful, because it’s in unbiased support for principles of free speech that we establish who we are, and who we are not. The counter case would be if in fact the DS clearly and explicitly advocated violence, in which case it’s perhaps justifieI to discover in a limited sense who participated in that activity…