Virginia Search Warrant Seeking to Identify Peaceful Protestors

by Paul Alan Levy

Yesterday, we filed a motion to quash a search warrant seeking to obtain from Facebook the confidential files of an activist group that has been protesting the refusal of Virginia authorities to step in to protect the health of immigration detainees in a private prison in Farmville, Virginia.  The motion builds on successful work three years ago along with the ACLU in opposing the Trump Administration’s attempt to raid online files of a group that ran protests at his inauguration. The ACLU's argument back then was based on the Fourth Amendment, influenced by the First Amendment; our briefs were based entirely on the First Amendment right to speak anonymously.

On September 11 of this year, a group of local activists connected with a coalition called Free Them All VA held a demonstration outside the Leesburg home of Virginia’s attorney general, Mark Herring, calling on him to release from detention the migrants being held at the Farmville Detention Center, where there had been one of the biggest outbreaks of COVID-19 of any ICE facility. The neighbors were reportedly unhappy, and the Leesburg Police Department responded by making an issue of the fact that someone had painted the slogan ”Free Them All” on the sidewalk adjacent to his home. The charge: Destruction of Property.

A few days after the demonstration ended, the Leesburg Police Department requested issuance of a search warrant on Facebook; according to the affidavit supporting the warrant, the objective of the search was to obtain a livestreamed video and photos of the September 11 protest that appeared briefly on the FreeThemAllVA Facebook page and which, they hoped, would enable the police to identify the painter(s). Had the search warrant sought only the video and photos, it would have been unexceptional, but it ALSO sought “[a]ny and all subscriber records including subscriber name” connected with the Facebook page, plus “[a]ny and all wall content/posts, messages, [and] chats.”  Although the search warrant was limited to the period from September 10 to September 15, posts and messages from earlier time periods remain in the private section of the page, and hence might well be within the scope of the search warrant.

A number of the messages relate to the health and immigration status of the writers and their families; others related to the political strategies aimed at effecting change in public policy. As a result, if after the search is executed (that is to say, after Facebook provides the data), you could have law enforcement officials paging through a whole bunch of confidential messages, having nothing to do with the supposed crime of painting words on a sidewalk, but then taking adverse actions based on what they have seen.

In Fourth Amendment terms, paging through irrelevant documents calls to mind another term — "exploratory rummaging" by virtue of a general warrant. Consequently, our motion to quash (filed with the assistance of Nina Ginsberg) invokes both the Fourth Amendment’s bar on unreasonable search and seizure, and the First Amendment bar on investigations that unjustifiably chill the free speech of unpopular groups, not to speak of divesting anonymous Internet users of the First Amendment right to speak and associate anonymously, in seeking to quash the search warrant. We also argue that, even if the search warrant is not quashed entirely, the search should be constrained by allowing the search of Facebook files to be conducted only though a court-approved keyword search, and by withholding any identifying data from the government unless and until it shows to a judge's satisfaction that a particular message or image is potentially evidence of a crime, thus justifying given the police information about who sent it to the Facebook page.  In addition to representing the owner of the page, we represent three anonymous Facebook users who were not even at the demonstration, but have articulated various reasons why they could suffer personally if they are identified as having been associated with the Facebook page.