The government will try to convince a judge next week to let it seize records of everyone who visited a website used to organize protests during President Donald Trump’s inauguration.
The company, DreamHost, refuses to comply with a search warrant that requests a broad swath of information related to a website it hosts, disruptj20.org, which was used to organize protests during Trump’s inauguration. The U.S. Attorney’s Office in D.C. filed a motion with the D.C. Superior Court to require DreamHost to show cause as to why it shouldn’t be required to comply. Chief Judge Robert Morin is set to hear the case on Aug. 24.
DreamHost argues the warrant, which requires the disclosure of information on more than a million website visitors, is a stark violation of users’ Fourth Amendment rights. The company’s lawyer, San Francisco-based Raymond Aghaian of Kilpatrick Townsend & Stockton, said he isn’t aware of any similar cases in the D.C. court.
“What really stood out to us is the scope and breadth of the information that was requested, which was unusual,” Aghaian said. “This [warrant] would allow the government to essentially see and identify who these folks were that were on the site and what they did.”
The company created a page on the crowdfunding website CrowdJustice on Friday to help pay for the legal costs of the fight. The page raised $940 by 12:30 p.m. Friday, with a goal of $10,000.
A spokesman for the U.S. Attorney’s Office declined to comment beyond its court filings.
Unlike the government’s motion, the affidavit explaining why the warrant is necessary is sealed. More than 200 people have been indicted so far on rioting charges in connection with the Jan. 20 protests in D.C.
The case touches on the question of how much leeway the government has to search electronic communications. The issue is currently playing out in both state and federal courts across the country.
Just this week, technology companies including Apple and Google filed amicus briefs in a case to be heard at the U.S. Supreme Court next fall on whether the government needs a warrant to collect cellphone data. The New York Court of Appeals, the highest court in that state, declined to quash a government warrant earlier this year to search Facebook account information for more than 100 users.
So what legal issues will be in play in this case? Here’s what to know:
The Fourth Amendment: The government’s warrant asks for all records pertaining to the DistruptJ20 website, which includes identifying information about which computers accessed the site and when, as well as emails associated with the site, DreamHost said in its brief. The company said that includes not only the email addresses of the organizers of the site but also the content of emails sent to them through the site.
As an electronic communications service provider, DreamHost receives hundreds of warrants and other legal requests per year, Aghaian said. But in this case, the government didn’t put any limits on its request.
“Everything that we had, they wanted,” he said.
In its motion to show cause, the government said the court “already imposed limitations” on what DreamHost is required to produce when it issued the warrant. The limitations, the brief said, are clear: the government can only search the types of records it noted in the warrant, and can only seize “information that constituted ‘evidence, contraband, instrumentalities, or fruits of violations of [D.C.’s rioting code].’”
DreamHost isn’t alone in claiming the warrant is overly broad. Jim Harper, vice president of the pro-business group Competitive Enterprise Institute and a former member of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, also filed a brief earlier this week in the Supreme Court cellphone case.
“It’s a request for all the data about anyone who visited the website, no matter when, no matter why, no matter any other context,” Harper said. “So, it’s just a hugely overbroad request.”
The First Amendment: Adding fuel to the fire is the political nature of the website. The creators of DisruptJ20 wrote their goal was to help organize “mass protests to shut down the inauguration” of Trump, and that the group “rejects all forms of domination and oppression, particularly those based on race, class, and gender, organizes by consensus, and embraces a diversity of tactics.”
The government must meet a higher standard for its searches when the First Amendment is involved, Aghaian said. Because the government wants information on who is associated with a political website, DreamHost argues, officials needs to identify with “particular exactitude” what they plan to seize.
Tom Dupree, a partner at Gibson, Dunn & Crutcher who represented Facebook in its New York challenge, agreed the political content of the site posed a problem.
“There’s an added level of concern when the website in question provides what government officials might view as a list of people who are dissenting from the government,” Dupree said.
Dupree said that concern could make a “stronger case for the company’s challenge,” because the warrant “very directly puts at risk the constitutional rights of private citizens who are accessing the website.”
The Privacy Protection Act: The Privacy Protection Act makes it illegal for the government to seize work products or documentary materials intended to be disseminated to the public before they are published. The law was designed to protect journalists, but applies to any person who plans to “disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
DreamHost argues in its brief that DisruptJ20 disseminates information, such as “press releases, messages, photographs, and other images, to the public.”
The government’s motion said DreamHost didn’t provide any evidence showing protected materials would be included in the search, and even if it had, the PPA does not preclude the government from seizing electronic communications.
Aghaian said “in light of the history of the website and what was published” on it, it was very likely materials would turn up in the government’s search that fit the PPA standards.
What happens next: It’s unclear how long the judge may take to rule on the issue following Thursday’s hearing. Regardless of the outcome, Aghaian said he doesn’t think the fight will end at the Superior Court.
Whether DreamHost can appeal any decision also remains in question. In the Facebook case, the judge ruled under New York law the social networking platform can’t appeal a search warrant on behalf of its customers to protect their Fourth Amendment rights. But Aghaian said the government initiated the fight in this case with the motion to show cause, not DreamHost. He didn’t shy away from the idea that the dispute could eventually reach the U.S. Supreme Court.
“If, for example, the government prevails, we certainly would have an interest in appealing and taking this up to a higher court,” he said. “If we prevailed, they may have an interest and they may want to do that.”