A D.C. judge handed wins to both the government and a website hosting company Thursday in their battle over a search warrant looking for data about users of an anti-President Donald Trump website.
Following the hearing, D.C. Superior Court Judge Robert E. Morin ruled from the bench that the government could proceed with a modified warrant for records of the website disruptj20.org, which was used to organize protests during Trump’s presidential inauguration. In an effort to balance First Amendment rights of innocent website visitors, Morin ordered the government to provide the court with the names of agents searching the data, the search process it will use and steps it will take to minimize its search of data related to those innocent visitors.
During the hearing, Morin agreed to allow DreamHost to hold off on handing over information to government investigators until it made a decision on whether to appeal, though the judge expressed concern at delaying the case further.
“It’s certainly within our right [to appeal],” said DreamHost lawyer Raymond Aghaian, a partner at Kilpatrick Townsend & Stockton. “We think that having the government review the records, having the government have access to the information of the public and, as the court has deemed, the ‘innocent third-party users,’ having them see that information and identify who these political dissidents were, is problematic.”
Aghaian said DreamHost will review the court’s order, which had not yet been issued in paper, to determine the next steps.
In addition to providing information about its search, the government must also file a report with the judge following the search. The judge said that report should include an itemized list of data the government plans to seize and why.
Any records the government searches but does not seize must be handed over to the court and sealed. Morin forbade the government from disseminating any of that information to any other party, including other government agencies. The judge also said the government can only search records generated between October 2016, when the site was registered, and the Jan. 20 inauguration.
Following the hearing, Aghaian said that while it was not the first instance of a judge supervising the execution of a government search warrant, he was “not aware of a situation such as this involving a First Amendment issue.”
Aghaian argued during the hearing that the government’s plan to search all of DreamHost’s website records, and then decide what information it would seize, is not workable because the website is political in nature.
Morin seemed skeptical there would be any other way for the government to proceed, and pushed Aghaian for a practical workaround. Aghaian said it was up to the U.S. Attorney to come up with a plan, but that DreamHost wanted a more exact warrant given the First Amendment concerns with a political website.
Assistant U.S. attorney John Borchert, who argued the case for the government, said DreamHost’s suggestion that the search warrant is a “general warrant,” or one that provides broad authority to search for unspecified items or records, was incorrect because the government was only looking for evidence of certain crimes and would only seize that evidence.
Following the hearing, Aghaian said that’s the basis of the dispute. DreamHost believes it should not be forced to allow the government to search through innocent users’ data, even if agents do not plan to seize and retain it.
The U.S. Attorney’s Office for the District of Columbia issued the warrant to DreamHost to search the company’s records of the website as part of its investigation into violations of the district’s anti-rioting statute during inauguration protests. More than 200 people have been indicted so far, and 19 have pleaded guilty.
DreamHost refused to comply with the July 12 warrant, claiming it was too broad and would force it to hand over information enabling the government to identify more than a million individual visitors to the website. In response to DreamHost’s defiance, lawyers for the U.S. Attorney’s Office proposed to narrow the warrant Tuesday, though DreamHost argued serious issues still remained.