by Paul Alan Levy
An important appeal is pending in the District of Columbia Court of Appeals – the highest appellate court in D.C. The federal government served D.C. warrants on Facebook, demanding access to the entirety of 90 days worth of communications in three separate Facebook accounts, including identifying information. (Presumably, the reason why the case is in local court rather than federal district court is that D.C. felonies are prosecuted in the local courts but by the federal government). The warrant arrived with a court order forbidding Facebook from disclosing the existence of the warrants to the users so that they could seek judicial protection against the invasion of their free speech rights. It appears that the warrant was issued by a trial-level judicial officer, that a motion to quash the non-disclosure warrant was denied, and that Facebook appealed. We know all of this because Facebook was allowed to issue a court-approved notice inviting possible amicus briefs in support of its position. Other than the court-authorized notice, we don’t know anything about the facts of the case because the entire record is under seal, including the rulings below and Facebook’s own appellate brief. We do not even know whether Facebook ever sought to block enforcement of the warrants on grounds other than its inability to notify the Doe targets of the subpoena of the assault on their privacy, whether there has been any ruling on the merits of the warrants, or whether Facebook has appealed from any such order. In fact, the existence of the appeal could not be found on a search of the DC Court of Appeals online docket – the Clerk’s Office confirmed to me this afternoon than outsiders are not supposed to be able to see the case. The statement of facts in the court-approved notice indicates that the denial of the motion to quash the non-disclosure order also ordered compliance with the warrants, but that this obligation has been stayed pending this appeal.
Public Citizen has joined an amicus brief prepared by the ACLU and the ACLU of D.C., supporting Facebook’s appeal.
Our brief argues that the order forbidding Facebook from communicating the existence of the warrants to its users is a prior restraint of speech, which must be analyzed pursuant to the normal strong presumption against prior restraints, and hence can be upheld only if the government makes an exceptionally compelling showing of need. We point out that the warrant appears to be a “general warrant” forbidden by the Fourth Amendment, which is especially troubling in the First Amendment context, and that disclosure to the users is needed so that they can stand up for their own right to keep their speech and their associations private, in light of the First Amendment right to speak anonymously. Given the sweeping nature of the general warrant, the users may well have a significant chance of success at narrowing the warrants even if they cannot quash it entirely. Although we applaud Facebook for opposing the subpoena and pressing the appeal, in the final analysis ISP's cannot be expected to challenge every such warrant, and the users themselves can bring to bear information bearing on the proper resolution of the motion that is likely unavailable to Facebook. And it is not only the three Facebook users whose free-speech rights are at issue here — the communications that others have sent to them would be swept up in the broad warrants described in the court-approved notice.
Two Other Amicus Briefs
There are two other amicus briefs: one from EFF and several other non-profits in the online civil liberties space, and one from a coalition of other ISP’s that have had to confront similar orders, joined as well as by the Reporters Committee for Freedom of the Press. The EFF brief explains the prior restraint issues in greater detail; the industry brief takes direct aim at 18 U.S.C. § 2705(b), the statute under which the non-disclosure order was issued, contending that the statutory requirement that a court issue a non-disclosure order requires a court to enter a non-disclosure order if it merely has “reason to believe” that disclosure would result in one of four enumerated adverse events or result in “otherwise seriously jeopardizing an investigation or unduly delaying a trial,” falls far short of the demanding showing that the Supreme Court has demanded for prior restraints.
Need for Public Disclosure of the Government's Contentions and the Courts' Rulings
Once the appeal has been decided, another First Amendment issue will be presented: the First Amendment right of access to judicial proceedings. We can hope that the D.C. Court of Appeals will authorize disclosure of the briefs and court orders so that the public can hold the government accountable for its effort to suppress public access, and hold the courts accountable for their rulings in this case.