Article 2ZA71 DOJ Goes Way Overboard: Demands All Info On Visitors Of Anti-Trump Site

DOJ Goes Way Overboard: Demands All Info On Visitors Of Anti-Trump Site

by
Mike Masnick
from Techdirt on (#2ZA71)
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Not all search warrants are bad. Indeed, most of them are perfectly legitimate, and meet the qualifications under the 4th Amendment that there is probable cause of a crime being committed, and the warrant is narrowly tailored to seek out evidence to support that. But... not always. As Ken "Popehat" White explains in a recent blog post, the Justice Department has somehow obtained the mother-of-all bad search warrants while trying to track down people who were involved in protests of Donald Trump's inauguration back in January. The government has brought felony charges against a bunch of protestors from the inauguration, and now it appears the DOJ is going on a big fishing expedition.

As Ken notes, it's quite likely that some protestors committed crimes, for which they can be charged, but prosecutors in the case have decided to go ridiculously overbroad in trying to get any info they can find on protestors. They got a search warrant for the well known hosting company DreamHost, which hosts the site disruptj20.org (as an aside, the fact that a site like that doesn't default to HTTPS for all connections is really, really unfortunate, especially given the rest of this article). The warrant basically demands everything that DreamHost could possibly have on anyone who did anything on disruptj20, including just visiting. As White notes in his post, it's not that unreasonable that the DOJ sought to find out who ran the site, but now they're requesting basically everything, which likely includes the IP addresses of all visitors:

a. all records or other information pertaining to that account or identifier, includingall files, databases, and database records stored by DreamHost in relation to that account oridentifier;
b. all information in the possession of DreamHost that might identify the subscribersrelated to those accounts or identifiers, including names, addresses, telephone numbers and otheridentifiers, e-mail addresses, business information, the length of service (including start date),means and source of payment for services (including any credit card or bank account number), andinformation about any domain name registration;
c. all records pertaining to the types of service utilized by the user,
d. all records pertaining to communications between DreamHost and any personregarding the account or identifier, including contacts with support services and records of actionstaken.

DreamHost, quite reasonably, found this to be somewhat overbroad and refused to immediately reply, instead having a lawyer ask the DOJ to clarify the request, while making it clear it felt the warrant was likely both vague and overlybroad. The DOJ then asked the court to compel the company to hand over the info, insisting there is "no legal basis for failing to produce" the requested information. DreamHost has now responded in court, saying that the warrant violates the 4th Amendment and appears to endanger the 1st Amendment rights of protestors. They also claim that it violates the Privacy Protection Act and that there are some jurisdictional issues with it as well. DreamHost also has a nice blog post about the whole thing:

This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.

Or, as the filing notes:

Where a search warrant endangers First Amendment interests, the warrant must bescrutinized with "particular exactitude" under the Fourth Amendment. See Zurcher v. StanfordDaily, 436 U.S. 547, 565 (1978). "The First Amendment is often inconvenient. But that isbeside the point. Inconvenience does not absolve the government of its obligation to toleratespeech." Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 701 (1992)(Kennedy, J., concurring). The government's search warrant ("Search Warrant") here requiresnon-party DreamHost, LLC ("DreamHost") to turn over every piece of information it has aboutevery visitor to a website expressing political views concerning the current administration. Thisinformation includes the IP address for the visitor, the website pages viewed by the visitor, evena detailed description of software running in the visitor's computer. In essence, the SearchWarrant not only aims to identify the political dissidents of the current administration, butattempts to identify and understand what content each of these dissidents viewed on the website.The Search Warrant also includes a demand that DreamHost disclose the content of all e-mailinquiries and comments submitted from numerous private e-mail accounts and prompted by thewebsite, all through a single sweeping warrant.

The Search Warrant cannot survive scrutiny under the heightened particular exactitudestandard required by the presence of the First Amendment issues. It fails to identify with therequired particularity what will be seized by the government. It also fails to provide DreamHostwith any assurance that the government will return or destroy the large portion of the informationirrelevant to the government's criminal case or cases. These features render the Search Warrantunreasonable under the Fourth Amendment. In addition, the Search Warrant violates the privacyprotections of the Privacy Protection Act, a statute enacted specifically to address such instances,and is without a jurisdictional basis.

As Ken White points out, this fishing expedition by the DOJ should concern us all:

The Department of Justice isn't just seeking communications by the defendants in its case. It's seeking the records of every single contact with the site - the IP address and other details of every American opposed enough to Trump to visit the site and explore political activism. It seeks the communications with and through the site of everyone who visited and commented, whether or not that communication is part of a crime or just political expression about the President of the United States. The government has made no effort whatsoever to limit the warrant to actual evidence of any particular crime. If you visited the site, if you left a message, they want to know who and where you are - whether or not you did anything but watch TV on inauguration day. This is chilling, particularly when it comes from an administration that has expressed so much overt hostility to protesters, so relentlessly conflated all protesters with those who break the law, and so deliberately framed America as being at war with the administration's domestic enemies.

Of course, the DOJ overreaching is nothing new. We just spent eight years highlighting DOJ overreach during the Obama administration (and another eight of overreach under the Bush administration). But it is particularly scary to see just how far this overreach is and that it's coming from an administration that has shown itself to be significantly less tolerant of the First Amendment rights of protestors than basically any predecessor.



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