by Paul Alan Levy
Late last week, DC Superior Court Chief Judge Robert Morin issued an opinion explaining his oral ruling at last month’s hearing on a search warrant issued to DreamHost demanding production of its files pertaining to DisruptJ20.org, and rejecting the rival proposed orders filed by the prosecutors and by DreamHost. We were in court again yesterday afternoon after the Government submitted another iteration of its proposed order; in a colloquy with Government counsel, Judge Morin made clear what his minimum conditions for such an order are. Although the final order is yet to be promulgated, and although Judge Morin does not appear to be willing to adopt the full set of protections for which we argued in our brief on behalf of three intervenors who communicated with the protest web site, it is apparent that Judge Morin is intent upon a rigorous supervision of the so-called “two step process” to ensure protection for the anonymity rights of Internet users who communicated with the protest site.
Our brief had argued that the two-step process, which is often employed for prosecutorial searches of electronic records, was simply too intrusive to be applied to the search of a frankly political protest site directed at opposing the very leader of the federal prosecutors conducting the search. Judge Morin’s opinion stoutly defends the two-step process as being the only practical way to manage a review of electronic records for which there has been a showing of probable cause to believe that they contain evidence of a crime. However, his opinion also recognized that DreamHost’s DisruptJ20 files contain communications from people who were not involved in the creation of the web site and who may well have communicated without any purpose of involvement in the rioting that occurred on January 20; the opinion indicated his determination to engage in rigorous supervision of the search process, within the structure of the two-step process, to make sure that prosecutors do not obtain the identities of innocent users of the web site.
The Means to Protect Anonymity of Those Who Communicated With the Protest Site
In his colloquy yesterday afternoon (the full transcript is here), Judge Morin appeared to be leaning toward the adoption of what our brief referred to as a “three-step process” – you could think of it being a two-step process within the two-step process. The court’s order said that once the government obtained possession of the web site files, it could conduct only a “general review,” not looking at any specific files but only assessing what sort of files there were so that a search protocol could be designed. The prosecutors were then to develop a protocol for the actual review of the documents, and court approval of that search protocol would be required before any search could be conducted. For example, the government might identify search terms that it might use, and those search terms were to be subject to court approval. Finally, to the extent that the search resulted in the identification of documents that the government believed reflected evidence of a crime, the government was required to provide specific reasons for that conclusion, and the seizure would not be allowed unless the judge approved seizure of that specific document. The Government’s proposed order reflected these general concepts, but it provided no specificity about how it planned to minimize access to documents protected from discovery by the First Amendment.
In his colloquy with government counsel, Judge Morin stressed that the review process was intended to protect the First Amendment rights of Internet users who communicated with the web site. To that end, he stressed that he was going to deny the government not just the right to keep particular communications between anonymous Internet users and the operators of the web site, but even the right to access information identifying the senders of particular documents, or the contents of their communications, until after the government had provided its statement of reasons for access to that document. This struck me as a very welcome development that met a significant part of the reason why I had come to the hearing to object to the insufficiencies of the Government’s proposed order.
Why Allow Any Search of the Communications With Outsiders?
Another part of the written order that I found very encouraging was the explicit recognition that the probable cause showing made to obtain the search warrant did not extend to all of DreamHost’s files pertaining the protest web site. We had argued in our intervention brief that, even assuming that the affidavit in support of the search warrant had made a sufficient showing of probable cause to believe that the creator(s) of the web site included those planning the Black Bloc riot (and I considered that showing to be thin at best), there was no reason to believe that communications to any of the email addresses provided on the web site, or responses to those communications or the listing of email addresses on various listservs created by the web site operators, would contain evidence of criminal activity. During the course of the hearing, Judge Morin agreed that his order was based on the assumption that at least some of the DreamHost files about the protest site were outside the probable cause showing (although he did not precisely agree where the line should be drawn).
Therefore, one of our arguments was that, having not shown probable cause to search the files about communications with users of the web site, the Government should not be given access to those documents to conduct a search. It was apparent from Judge Morin’s reaction from the bench (it was unspoken, and hence does not appear in the transcript) that he was not buying that argument, so I moved on. But my concern is that, in effect, the Government is being allowed to search through a set of documents on which it has never established probable cause in the hope that its search will produce probable cause to conduct the search. That strikes me as a very bad precedent, and in our final brief to Judge Morin we will be trying to persuade him to change his approach.
As I write this, the Government has just filed yet another order that inadequately protects this innocent web site users. It goes so far as to claim the right to seize communications from people who were completely innocent of any wrongdoing, on the disingenuous theory that it has the right to violate the privacy of political opponents of the Trump Administration to obtain messages that show they are not guilty of any crimes. Stay tuned.
