by Paul Alan Levy
Responding to an outpouring of popular outrage as well as legal filings (including one from Public Citizen as well as an amicus brief from Avaaz) showing that the First Amendment protects the right to read anonymously and can be used to limit the enforcement of criminal discovery demands seeking to identify innocent readers of protected speech, the Trump Administration’s Justice Department has backed down from some of the worst extremes of the search warrant that it served on DreamHost. (A cynic might wonder whether the impetus for the change might have been the fact that the ruling on its warrant was switched from a DC Superior Court judge who was a career prosecutor to the court’s chief judge, whose background was in criminal defense.) In any event, the Government’s reply brief asks Chief Judge Morin to revise the warrant to exclude the server log files that would reveal the IP addresses of all visitors to the web site.
The reply brief is more than a little disingenuous about the reasons for the changes. The government claims that it fully respects the First Amendment rights of peaceful protestors, that its singular focus is and has always been on prosecuting a small band who planned and executed a riot, not the many others who did no more than protest peacefully, and that prosecutors simply had no idea that the documents demanded would include log files that would reveal the IP addresses of web site viewers. But the original search warrant demanded production of the very same thing: “HTTP request and error files” (see the line at the top of the last page of the warrant linked above) that are now excluded from the subpoena (see the line at the top of the third-page from the end of this document, captioned as subparagraph (f). And besides, what federal prosecutor genuinely does not know that web servers typically retain log files?
Still, assuming that the court is willing to change the search warrant as the government now requests, Public Citizen’s Doe clients will be protected from the planned incursion on their anonymous online reading, and hence there will be no need to intervene. Thus this significant First Amendment issue will have to be addressed another day. Public Citizen’s statement about this victory is here.
Remaining Threat to Free Speech Rights of Web Site Visitors
A serious First Amendment issue remains: DreamHost’s brief explained that among the documents sought by the terms of the warrant are a set of emails from members of the public, sent to emails established on the domain in the form XXXXX@disruptJ20.com, as well as lists of members of certain email listservs. Seizure of those emails would invade the right of the senders of those emails to speak anonymously, which is far better established in the law as a barrier to discovery than the right to read anonymously. And although the anonymous email senders would make up a smaller "enemies' list" than the list of all site viewers, they are individuals who might have greater worry about being placed on such a list because the sending of such emails is a greater show of enmity than merely looking at the site.
The Government’s reply brief claims that the existence of such emails is among the “unknown facts” revealed by DreamHost’s opposition brief and by the resulting media storm, and strongly implies that these are among the documents whose production the Government no longer seeks (see page 14 and page 15 its memo). But that contention is also disingenuous in that, unlike the language about the log files, no corresponding change has been made to the search warrant. Indeed, the reply brief expands somewhat on the Government’s description of the probable cause showing on whose basis the search warrant was obtained, claiming, among other things, that the web site “was also used to coordinate and privately communicate among a focused group of people whose intent included planned violence.” (page 2 of the reply brief). So it is my sense that the prosecutors really do want access to emails sent from web site users because they believe that set of data will include some emails that are evidence of criminal intent.
But that, it seems to me, presents one of the hard First Amendment issues in this case – issues that we are unable to address as counsel for the intervening Doe users because our Doe clients did not send such emails and so could not intervene to address that issue. The Government appears to take the position that the process of separating out the relevant emails from the mass of innocent emails is addressed by a “two-step” process that it discusses in its reply brief (pages 9-13), and addressed as well in Orin Kerr's blog post that found nothing particularly alarming about the search warrant—even when it included the IP addresses of visitors—although he indicated that he found the issues interesting. But the limitation of Kerr’s piece, as of the government’s reply brief, is that they address the issue solely under the Fourth Amendment, and not under the First Amendment.
The Government’s brief relies on a series of appellate Fourth Amendment cases about the seizure of personal computers or online accounts in child pornography cases. But those cases do not present nearly the same concerns as cases like this one where the Government is seeking to seize the entirety of a set of communications about a political protest aimed at the president for whom the prosecutors are working, a president whose slashing response to dissent and even to members of the Senate who occasionally vote against his agenda suggests a complete lack of respect for the First Amendment rights of his critics.
Particularly in those circumstances, the First Amendment does not require political dissenters to trust federal prosecutors to leaf through hundreds or thousands of emails that innocently seek or communicate information about peaceful protest activities, copying only the those from a small “focused group of people” with violent intent. Circuit Judge Shirley Hufstedler’s opinion in Bursey v. United States had no patience for the argument that the Black Panther Party, in resisting interrogation on political subjects before the grand jury, could not object on the grounds that the testimony was being taken in secret:
"In the context of this case, the secrecy of the grand jury proceedings did little to soften the blow to the First Amendment rights. The public did not know what the grand jury learned, but the proceedings were no secret to the Government. A Government lawyer initiated the investigation. A Government lawyer presented the evidence to the grand jury. Political dissidents who criticize the Government may well have more fear about disclosure to the Government than to anyone else, and the Government heard every word."
The same is true here. If search warrants must be blunt instruments that do not distinguish between emails sent with criminal intent and those sent as an exercise of the right of protected private association for the purpose, leaving it to Justice Department personnel to set aside the innocent emails, then perhaps the First Amendment commands that the Government not use a search warrant at all. If, for example, the government were to proceed by subpoena (for example, a grand jury subpoena), it could demand only those emails that propose violence, and similar descriptions that could take them at least to the borderlands between protected and unprotected speech. In that case, someone could actually look at the documents and give the government only what it claims to really be after. And if a neutral decider needs to be given power to decide about close cases, then perhaps some emails might have to be examined by the trial court in camera.
After all, the Government's burden, when its criminal discovery trenches on First Amendment interests, is to show not only that is has a compelling interest in the subject of the investigation and that there is a substantial connection between the information sought and the Government's compelling interest, but also that "the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest." Perhaps, in a case like this, a subpoena is a less drastic means than a warrant.
The email exchanges attached to the Government and DreamHost briefs indicate that the Government initially proceeded by subpoena when it was seeking its first batch of documents from DreamHost; the Government’s papers provide no explanation for its decision to use a search warrant instead. No Doe emailers have stepped forward to assert their rights, but we can hope that DreamHost will present this First Amendment issue at tomorrow morning’s hearing.
