Attorneys haggled Friday in the D.C. Superior Court over whether the government should be allowed to proceed with search warrants for Facebook accounts associated with Inauguration Day protests, and if so, what information it should be allowed to access.
During an afternoon hearing, U.S. Attorney John Borchert said the federal government wanted to conduct a “front to back” search of the accounts. The government, he said, would scroll through the account information it requested – including private messages, pictures and news feeds – to find what it needs.
But American Civil Liberties Union staff attorney Scott Michelman called that “the opposite of particularity,” which the Fourth Amendment requires in tailoring search warrants.
Michelman, representing political activists Emmelia Talarico and Lacy MacAuley, is asking Chief Judge Robert Morin to quash the search warrants, arguing they would have a chilling effect.
MacAuley echoed that concern.
“I think it’s pretty obvious that the government is trying to lift the lid on the Facebook accounts of political dissidents and activists,” MacAuley said in an interview after the hearing. “And I think this is not only a big violation of our privacy…this is actually something that could have a chilling effect on activism.”
The government charged nearly 200 people swept up and arrested Jan. 20 during protests organized by political group DisruptJ20, which intended to disrupt President Donald Trump’s inauguration.
The government slapped most of them with various criminal charges, including rioting.
Although neither MacAuley, who said she helped organize some of the Inauguration Day protests, or Talarico were criminally charged, the government obtained search warrants in February requiring Facebook to disclose information about their accounts, as well as the DisruptJ20 Facebook page.
The search warrants were sealed until the government agreed to lift the gag order on Sept. 14, after Facebook lost a challenge to the order and appealed. Facebook then immediately notified the account owners, who intervened in the matter.
The ACLU moved to quash the warrants, calling them overbroad, unreasonable and a violation of the Fourth Amendment’s particularity requirement.
The warrants would require Facebook to turn over the entire contents of those accounts for a time period spanning 90 days.
“Permitting government officials to comb through 90 days’ worth of personal messages concerning political activity and associations — some of which are aimed at protesting the policies of the very administration on whose behalf the government officials would be acting in searching Intervenors’ records — is an unjustified invasion of privacy hearkening back to the ‘general warrants’ that the Fourth Amendment was enacted specifically to prohibit,” the motion to quash states.
Allowing parties the opportunity for a pre-enforcement challenge to a search warrant, however, has very little precedent, unlike challenging a subpoena.
But Michelson suggested that it’s workable in this case because the information is preserved and there is no danger it will be lost while his clients challenge the warrant.
In a separate but related matter, the government had also sought and obtained a search warrant for DreamHost, which hosts the DisruptJ20.org website, that would have forced the company to turn over the IP addresses and communications of the 1.3 million people who used the site.
On Tuesday, however, Judge Morin ruled the government can’t rummage through all of that information and must redact identifying information of “innocent persons.”
“While the government has the right to execute its warrant, it does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities,” his Oct. 10 order states.
The parties agreed Friday that the DreamHost order could serve as a model to deal with the DisruptJ20 Facebook page. They had a more difficult time, however, determining how best to limit the scope of what the government would be able to access on the individual accounts of MacAuley or Talarico.
The parties tossed around ideas about using a list of search terms and allowing Facebook to conduct the search. However, John Roche, an attorney with Perkins Coie representing Facebook, said he was unsure of what the tech giant’s capabilities are in terms of segregating information.
Morin asked for further briefing on the matter, but not before all parties had dissected the significance of Facebook “likes.”
U.S. Attorney Borchert said sorting through “likes” on the accounts “could be probative of criminal intent.”
If, for example, someone liked a post about how to dress in black bloc – a way for protestors to conceal their identities – for the alleged riot, Borchert said those posts could be evidence of criminal activity.
He later clarified that he was not saying all Facebook “likes” are evidence of a crime.
Michelson had suggest a special master to sort through the account information to protect privacy, but both Borchert and Morin objected to that idea, with Borchert saying it would be easier for the government to do it.
Whatever is ultimately decided upon, Michelson insisted that the search warrant be narrowed to matters that only pertain to the government’s investigation of the alleged crimes.
MacAuley called it “kind of creepy” and “unjust” that the government wants to sift through three months of her life on Facebook, saying she doesn’t want the Trump administration to look at her family photos and communications with her intimate partner, including conversations about her being a survivor of domestic violence.
She said she has no regrets about her political activity.
“I’m proud of the media, communications and organizing work I did around DisruptJ20. I am an activist who organizes against Donald Trump and his policies, against white supremacy and all that the Trump era entails in that regard,” MacAuley said. “I’m not backpedaling on any of that.”
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