by Paul Alan Levy
In a decision issued late Thursday morning, DC Superior Court Chief Judge Robert Morin said that he was ready to order DreamHost to comply with the federal prosecutors’ scaled-down search warrant, but enunciated strict procedural restrictions that he said were intended to reflect a balance between allowing the Government to pursue a facially legitimate criminal investigation and protecting the free speech rights of innocent users of the web site who were engaged in protected political speech. It appears that the precise terms of the order are still under discussion. Still, I have grave qualms about the precedent for searching anti-Trump web sites set here at the outset of the Trump Administration.
In reaching this result, the judge began by noting that, based on his own review of the warrant application and its supporting affidavit, he was persuaded that there was probable cause to believe that the web site was used as part of a deliberate plan to stage a violent riot during the protests over Donald Trump’s inauguration. Having found probable cause, he made clear throughout the hearing that he felt obligated to enable the prosecution to perform a search that they deemed necessary and asked whether there was any practical means, short of giving the prosecution access to the entire data set connected to the web site, to protect the relevant First Amendment interests. DreamHost argued that the proper approach was to require the prosecutors to serve a particularized warrant, specifying just what they were looking for, for example by identifying the keywords by which the data would be searched, and that DreamHost could limit its production to just the materials identified through such a search. In close cases, the final decision could be given to the judge about whether particular communications would be turned over to the prosecution. That way, it would be only DreamHost, or a neutral judge, who would see the “innocent,” constitutionally protected speech that prosecutors have no right to review. But the prosecutors argued that it was unfair to limit their search in such a way because they could not be sure exactly what they were looking for without seeing the entire data set and making their discretionary judgments.
Chief Judge Morin made clear during the oral argument that he was wedded to the propriety of the typical “two-step process” typically found acceptable under the Fourth Amendment, whereby, for example, prosecutors get access to an entire computer whose contents are shown to be likely to contain child pornography to conduct a “search,” but then they “seize” only the data that is relevant to their child pornography prosecution. Those computers contain protected speech as well as a variety of private data, but the Fourth Amendment decisions do not bar such general examinations. The judge was unpersuaded that the search of an entire web site devoted to political dissent posed any difference in kind from the computer examples that appear in the caselaw, or that the First Amendment’s protection for the right to engage in anonymous political speech free from government snooping might impose limitations greater than those required in a child porn case. My alternate suggestion was that if the two-step process was a necessary component under Fourth Amendment analysis, then the First Amendment’s command of the “least drastic procedure” might demand that the prosecutors proceed by grand jury subpoena. Judge Morin plainly did not agree.
Judge Morin’s Ruling
As a result, Judge Morin decided that he would give the government the opportunity to search the entire data set, but subject to judicial supervision. Once the government evaluates the characteristics of the data, it is required to formulate a search protocol, and to provide that protocol to the judge for his review along with the identities of the particular law enforcement personnel permitted to review the data. I took it as implicit in what the judge said that he is going to decide whether he approves the search protocol before the government may implement it. Then, after the search is completed, the government is required to segregate the parts of the web site and emails and the like that it has concluded are needed for its prosecution and investigation because they provide evidence of criminal intent (the Washington Post’s post-hearing story cited the judge as saying the evidence had to be “critical” to its investigation – that approach would be consistent with some versions of the First Amendment test that many courts apply in the context of civil discovery into source identities and other information protected by the First Amendment, where the discovery must “go to the heart of the case”).
And very important is the judge’s requirement that the government provide the court with an explanation for its determination that such evidence was relevant — again, it was my inference that the judge intends to evaluate these explanations, leaving open the possibility that he might decide otherwise about a given piece of evidence. Moreover, the requirement of articulating an explanation itself creates a discipline for the law enforcement officials to keep their seizure narrow.
The parts of the data not found to be relevant to the investigation are to be kept under seal, with no further access by law enforcement without a further order of court (in fact, the Privacy Act would likely require that data to be expunged). And the judge further indicated that information derived from the search was not to be provided to any other government agencies, but used only for the prosecution.
Better Than No Limits, But Insufficiently Protective of the First Amendment
My view is that we can be grateful for the tight restrictions imposed by Judge Morin, which provide some relief from the chilling effect caused by this government investigation. But as I see it, Judge Morin gave too much weight to the government’s interests and too little weight to the interests of dissidents to be free of prosecutorial abuses and from scrutiny by the government. The government expressed concern that a search conducted by DreamHost might miss some useful pieces of evidence, but the contrasting concern is that prosecutors could get to examine protected political speech, and to identify otherwise anonymous political speakers, before a judge passes on whether disclosure of this information is appropriate. In this regard, the distinction between “search” and “seizure” is hard to make, because once a law enforcement official learns this information, the document might be sealed but the knowledge remains. Suppose, for example, that a police employee or staffer in the US Attorney’s office who is not working undercover is found to have reached out to the DisruptJ20 site because of a real desire to support the protests. That sort of information is unlikely to be forgotten or ignored.
To be sure, the government — and the public — have every reason to want to ensure an effective prosecution of the rioters who took advantage of broad unhappiness about Trump’s inauguration to pursue a private agenda of breaking windows and attacking the police, and the evidence (detailed in the search warrant affidavit) gives good reason to believe that the riot was planned and premeditated, although I found the contention in the affidavit that the web site was involved in planning the riot to be unpersuasive. But the DisruptJ20 web site presented itself as a general resource for a variety of protest activities expressing opposition to Trump’s inauguration, and the notion that federal prosecutors can take advantage of a lawless fringe to conduct a broad search of such a web site, hoping to find additional evidence to support its prosecution, is chilling indeed. If we take seriously the principle that, when an investigation is into political speech, “the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest” (here quoting Bursey v. United States), a ruling that insists that the government can view the entirety of the data maintained by a dissident group simply because some people connected with that dissident group engage in unlawful conduct sets a terrible precedent. It is as if, in the course of conducting a criminal investigation into the leaking of national security documents to the Washington Post, the Justice Department were to secure access to the Post’s entire computer system to conduct a search for the identity of the leaker and of Post staff who encouraged the leak.
I found particularly disappointing Judge Morin’s apparent unwillingness to insist that anonymous individuals who sent emails to the web site, using email addresses established on the disruptJ20.org domain, be given notice warning them that their anonymity was threatened. The DC Court of Appeals decided in Solers v. Doe that notification and an opportunity to defend anonymity is a key protection required by the First Amendment before identification can be ordered in a civil case. There is no reason to think that the rule would be different in a criminal case. DreamHost has the necessary email addresses to provide notification, and was willing to be ordered to provide such notice. As of the day of the hearing, however, it had not done so voluntarily.
The protection of the anonymous emailers was a particular focus of DreamHost’s argument at the Thursday hearing, and of my own argument on behalf of our five Doe intervenors, although I was in no position to press an appeal on the email issue because our Doe clients only viewed the web site; none of them sent emails to the site.
After the hearing was over, I learned a bit more information that casts further doubt on the extension of the government’s search to the contents of emails sent by anonymous web site users. As we were waiting for the hearing to begin, a chance conversation with a reporter, followed by a request for confirmation from the Government’s counsel, brought to my attention that the search warrant application, and the supporting affidavit, were in the public record of the proceeding, not under seal. This morning, I obtained a copy of the affidavit, and compared the affidavit with versions of the web site that existed at the times described in the affidavit (using the Internet Archive) and with the representations made by the Government in its briefs. My conclusion was that the affidavit was misleading in a number of respects, and that the Government’s characterizations of the facts set forth in the affidavit as a basis for finding probable cause to search the web site were overstated in some respects. It is not clear whether Judge Morin had looked beyond the face of the affidavit in finding it sufficient to show probable cause
Moreover, there was nothing in the search warrant affidavit that would have supported any finding of probable cause to believe that the contents of emails to or from the email address provided for obtaining further information about the broad range of protest activities being planned (the email address info@disruptJ20.org) or the email address provided for communications from the media asking about the plans (the email address firstname.lastname@example.org) was used in any way to facilitate criminal activity. Presumably inquiries from the media and responsive communications to the media will be among the documents that the prosecutors get to search. The law enforcement officials who were monitoring preparations for the protest could have used test emails to those addresses to ascertain whether they were being used to promote criminal activity. The search warrant affidavit does not report any such evidence.
The search affidavit placed a fair amount of emphasis on the web site containing a link to a web page related to the “anti-capitalist/anti-fascist” march that appears to have been the rioters' own special event, but there was no disruptj20.org email address associated with that event. Indeed, reading the affidavit, a reader would likely have assumed that the riot planning as featured on the disruptJ20 web site, but in fact the link was not to a page within the disruptj20 web site at all (it was a link to a separate web site, located at “itsgoingdown.org”).
In short, the affidavit provided no evidence of criminally relevant communications. The theory (set forth in paragraph 24) that because bad people were involved with the web site, the detective hoped to find evidence of criminal intent in emails they received from outsiders who viewed the web site. But there was no evidence giving reason to believe that outsiders viewing the disruptj20.org web site were aware of the plotting by the bad people the detective said were involved.
The Way Forward
At this point, DreamHost seems determined to declare victory and to cooperate with the prosecutors by providing its data to be searched. Its blog post quite correctly describes the Government’s narrowing of its warrant to eliminate IP addresses and some other material, coupled with Judge Morin’s post-data-submission restrictions on the manner in which the search will be conducted, as a victory for online privacy.
Its stance is understandable. The blog post notes that DreamHost is a small company that has to pick its battles, and DreamHost deserved tremendous credit for what it has done quite a bit so far. I don’t know whether the excellent lawyer from a national law firm that has been representing it has handled the case pro bono; if not, even his work at a discounted rate will have been an expensive proposition. Moreover, an email from the court that I found in the record this morning indicates that DreamHost may be negotiating with the Government over the precise terms of the proposed order. DreamHost might well have decided that it can make more progress by negotiating than by appealing. Moreover, after the ruling, DreamHost asked Judge Morin orally for a stay pending a possible appeal, which he denied. DreamHost’s blog post indicates that it is still weighing the possibility of pursuing an appeal after turning over its data, but I do not hold out great hope for that.
The one thing we can expect DreamHost to do, even if it decides not to appeal, is to give notice to the anonymous senders of emails that their anonymity is at risk, identifying possible places where those users might find lawyers willing to discuss pro bono representation on an appeal from the disclosure order. A number of social media companies, including Yelp, Facebook and Twitter, have been known to provide such direction for users facing litigation. And anonymous outsiders who sent emails to the site, who stand to be exposed by disclosure, would have standing to appeal the search order.
I have asked DreamHost to provide such notice, but it has not yet responded.