inauguration – Techdirt (original) (raw)

DOJ Racks Up 90% Failure Rate In Inauguration Protest Prosecutions, Dismisses Final Defendants

from the win-some,-lose-a-whole-lot-more dept

The DOJ, after flailing wildly for most of the last 18 months, has dismissed the remaining defendants in its disastrous inauguration day protest prosecutions.

The US attorney’s office in Washington, DC, announced Friday that it is dismissing charges against the remaining defendants charged in connection with anti-Trump demonstrations on Inauguration Day.

Police arrested 234 people on Jan. 20, 2017. Twenty-one people pleaded guilty. The final dismissal notice on Friday came after several trials in which prosecutors were unable to secure any convictions — defendants were either acquitted or jurors failed to reach a verdict.

The government still managed to land 21 convictions, even though its statement suggests it feels this isn’t nearly enough, what with “$100,000 in damage to public and private property” occurring during the protests. It certainly isn’t much considering the DOJ’s original (human) dragnet held more than 200 arrestees.

But that wasn’t the only dragnet the DOJ deployed. On its way to dismissing charges against 90% of the defendants, the DOJ also:

This is how it ends for the DOJ, which has largely lost its bids to install a chilling effect via over-broad “rioting” prosecutions. While it’s true property was damaged during the protests, rounding up a couple hundred protesters is the opposite of targeted prosecution. If the DOJ hadn’t been shutdown in its attempt to amass personal information on more than a million website visitors and Facebook members, the number of defendants would have been even bigger. The eventual dismissals would also have skyrocketed, so the government probably should be happy it walked away with anything at all.

Filed Under: 1st amendment, disrupt j20, doj, free speech, inauguration, j20, protests

DOJ Still Wants To Lock People Up For Protesting The Government, Or Even Just Talking About It

from the thoughtcrime dept

The government is still trying to land a conviction from its mass arrest of participants in last year’s Inauguration Day protests in Washington, DC. So far, it has nothing to show for its efforts but a far-too-casual disregard for civil liberties.

The prosecutions began with the government’s breathtaking demand for the personal info of all 1 million+ visitors to the Disrupt J20 website. From there, things did not improve. The government’s prosecutors accused protest participants of “hiding behind the First Amendment” while attempting to strip away First Amendment protections. One of those charged by the government with rioting was journalist Alexi Wood, who had filmed the protests and had the footage to show he wasn’t a participant in violent or destructive acts.

The government compounded its unconstitutional behavior in court when its lawyer (Jennifer Kerkhoff) tried to downplay the significance of a foundational part of our justice system — that the accusers must prove “beyond a reasonable doubt” the accused committed a crime.

Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the Judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot. But look at the last line.

The Court: So wait…

Kerkhoff: I apologize.

The Court: I know she didn’t mean to say what she just said. But —

Kerkhoff:: It means a lot.

The Court: I just need to say, ladies and gentlemen, you will be instructed on reasonable doubt. You must follow each and every word of my instructions on reasonable doubt.

Kerkhoff: Yes.

The Court: Ms. Kerkhoff did not mean to trivialize any portion of it, and it’s just as important that you understand —

Kerkhoff: I apologize.

The Court: — that every word of the reasonable doubt instructions, like all the rest of my instructions, are very important.

Kerkhoff: It’s an important instruction.

After these horrendous actions and the acquittal of its first batch of J20 prosecutees, the DOJ is finally going to attempt something a bit more targeted.

After a DC Superior Court jury acquitted the first group, prosecutors announced they were dropping charges against 129 remaining defendants, saying they would focus on defendants who allegedly engaged in “identifiable acts of destruction, violence, or other assaultive conduct,” who planned violence, or who participated in “black bloc” tactics to aid the property destruction that day.

Unfortunately, that still leaves a whole lot of defendants. The prosecutions began with more than 200 people charged. Only about a quarter of the original defendants are still awaiting their day in court.

[…]58 defendants remain charged and will face a judge and jury in at least nine more trials; jury selection for the next of these is scheduled to begin Monday.

The government is still giving itself plenty of leeway, though. It’s not simply interested in jailing those who actually committed property destruction during the J20 protests, but anyone it thinks it can pin a conspiracy to riot charge on.

The “conspiracy” angle is only going to do more damage to First Amendment rights. Simply having contact with someone charged with property damage/rioting could net defendants jail time. This is an effective way to deter future dissent, as it casts a chill on participating in protests against the government simply because the possibility of some participants engaging in criminal activity will always exist.

Denver civil rights attorney Jason Flores-Williams was a legal observer at the demonstration, but was disqualified from representing arrested protesters because the court saw this as a conflict of interest. In his view the prosecution means to send an even more pernicious message, which is that protest of the sort that the defendants engaged in is prohibited full stop.

[…]

“The important aspect here is that they’re going after fundamental associative rights. They implant the idea in the minds of the citizenry that even to discuss dissent or even ‘like’ a dissenting comment on Facebook can lead to prosecution. When that happens, democracy dies.”

It’s highly unlikely the last 58 defendants all engaged in property damage or destruction. That means a lot of the government’s targets will be facing nothing more than conspiracy charges. If the government succeeds in convincing a jury simply discussing participation in a protest that ultimately resulted in destructive acts from a small subset of participants is a criminal act in and of itself, the First Amendment is going to suffer. Given the history of these prosecutions, it’s clear the government either isn’t aware of the damage it’s doing or, more likely, does not care.

Filed Under: doj, donald trump, free speech, inauguration, j20, prosecutions, protests

Good News: Trump Protestors Accused Of 'Hiding Behind The First Amendment' Acquitted

from the first-amendment-still-works dept

Last week we wrote about the insanity of the DOJ’s argument in trying to convict a group of protestors at Trump’s inauguration. As we noted, the DOJ didn’t even try to connect the defendants with any violence or property damage, but merely said that by being near the property damage they were accomplices, because they made the actual perpetrators harder to catch. When talking about the First Amendment and the right to assemble, Assistant US Attorney Rizwan Quereshi, incredibly, claimed that the defendants were “hiding behind the First Amendment.” Even more incredibly, on Monday of this week another Assistant US Attorney, Jennifer Kerkhoff, tried to tell the jury that the judge’s instruction about reasonable doubt “doesn’t mean a whole lot”, leading the judge to jump in and say that Kerkhoff clearly didn’t mean to say that:

Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the Judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot. But look at the last line.

The Court: So wait…

Kerkhoff: I apologize.

The Court: I know she didn’t mean to say what she just said. But —

Kerkhoff:: It means a lot.

The Court: I just need to say, ladies and gentlemen, you will be instructed on reasonable doubt. You must follow each and every word of my instructions on reasonable doubt.

Kerkhoff: Yes.

The Court: Ms. Kerkhoff did not mean to trivialize any portion of it, and it’s just as important that you understand —

Kerkhoff: I apologize.

The Court: — that every word of the reasonable doubt instructions, like all the rest of my instructions, are very important.

Kerkhoff: It’s an important instruction.

Well, it appears that the jury did, in fact, pay attention to the reasonable doubt instructions, and has acquitted all six defendants on all charges. That includes Alexei Wood, the journalist who was covering the protests, as well as two other defendants who were there as medics to treat anyone injured (the DOJ tried to paint them as accomplices who helped fix people up to do more damage).

This case was important for trying to criminalize reporting, but to an even larger extent for trying to criminalize protesting as a group, where all members of a protest would somehow be considered liable for any damage done by any member. Thankfully, the jury saw through it and found all defendants not guilty on all charges. One hopes that the Justice Department (which rarely loses cases) will maybe think more carefully in the future about bringing such bullshit charges against people for exercising their First Amendment rights. And that matters quite a bit, as there are 188 other defendants from the same protest who are still awaiting trial.

Filed Under: alexei wood, doj, donald trump, first amendment, free speech, inauguration, j20, jennifer kerkhoff, protests, rizwan quereshi

DOJ Wants Protesters & Reporter Convicted For 'Hiding Behind The First Amendment'

from the protect-and-defend-the-constitution dept

Employees of the federal government swear an oath to protect and defend the Constitution. Assistant US Attorney Rizwan Qureshi must have done that as well. And, among the parts of the Constitution he’s supposed to defend is the First Amendment. But, as a lawyer for the DOJ he has a job to do — and apparently sometimes that job includes making batshit insane arguments to try to throw protesters and a reporter in jail against their basic First Amendment rights to assemble and to report. This is the case against six people who were singled out and prosecuted, among hundreds of people arrested during protests around Donald Trump’s inauguration. We wrote about it last month, mainly focusing on one defendant Alexi Wood, a journalist who was filming/live-streaming the protests, but still got arrested and prosecuted.

Pretty much everyone should agree that protesting is legal and protected under the First Amendment. Obviously, vandalism and property destruction are not. But, the incredible thing about this case and the arguments that Qureshi made is that he didn’t even bother to claim that the six defendants participated in violence or property destruction. He just argued a form of aiding and abetting the violence and damage, just by being present, and complained that they were “hiding” behind the First Amendment. Here’s a snippet from the Washington Examiner’s report on the closing arguments:

A federal prosecutor said Thursday that jurors must convict six people arrested during President Trump?s inauguration because they ?agreed to destroy your city and now they are hiding behind the First Amendment.?

[….]

During closing arguments Thursday, Assistant U.S. Attorney Rizwan Qureshi offered no evidence that the six committed acts of violence or vandalism, or attended planning meetings for an anti-capitalism march that ended in the arrest of about 240 people in downtown Washington.

Instead, Qureshi likened the defendants to robbery get-away drivers, guilty because they helped anonymize others in a crowd.

?That?s exactly what this sea of black was, it was the getaway car,? he said.

Think about that for a second. He’s claiming they are GUILTY BECAUSE THEY HELPED ANONYMIZE OTHERS IN A CROWD.. This is pure insanity on multiple levels. First, anonymity is, by itself, protected by the First Amendment. Second, your own First Amendment rights don’t get thrown out just because prosecutors can’t find the actual perpetrators of violence in a crowd and decide to nab you instead. That’s not how it works.

The specific argument against some of the defendants was equally crazy. Two of the defendants say that they were acting as medics for the protesters. Indeed one of them, Brittne Lawson, rather than fading into the anonymous crowd in black, was wearing a white helmet with a red cross. But check out how Qureshi spun someone being there to help people who might get injured:

?Ms. Lawson was prepared for war and she was going to make it succeed,? Qureshi said, saying she planned ?to mend them and get them up on their way.?

?What do you need a medic with gauze for? I thought this was a protest,? he said. ?There?s nothing wrong with being a medic, but she was aware there was a riot going on.?

WHAT?!? Being aware that a protest might turn violent, and being interested in helping anyone who might get injured in no way makes you guilty of any of the violence. And claiming that she “was prepared for war and she was going to make it succeed”? What the hell? Does Qureshi think that Doctors Without Borders is equally responsible for war crimes for mending those injured during wars?

As for Wood, the journalist who was livestreaming, Quereshi went after him for saying “whoohoo” during the livestream:

Prosecutors condensed Wood?s footage to show his utterances of ?woohoo? during acts of vandalism and when police fired flash-bang grenades at protesters. ?That?s not journalism,? Qureshi said. ?He?s egging them on. … I know a lot of journalists who would take issue with his coverage.?

It’s true that many journalists would take issue with that kind of coverage, but one of the great things about the whole First Amendment is that doesn’t fucking matter. Just because other journalists approve or disapprove of someone’s style or coverage or opinions doesn’t shed them of their First Amendment rights. Thankfully, Wood’s lawyer pointed out that the government doesn’t get to decide what’s good journalism vs. bad journalism. That’s the very crux of the First Amendment.

And, again, it gets worse. Qureshi claims that because he, himself, was ignorant of a common term of how police round up protesters, while Wood was aware of it, it somehow proves he’s not a journalist. I only wish I was kidding.

Qureshi questioned why he would know certain terms, such as ?kettling,? which refers to a police tactic of surrounding activists. The term kettling often is used by protest-rights advocates who view it as an illegal strategy.

?How?s he a journalist and he?s talking about a ?kettle?? I didn?t know what a kettle was before this case, did you?? Qureshi said.

Qureshi apparently said the same thing about the fact that Wood knew the term “black bloc.” This is a really cynical ploy, basically trying to tell the jury that because a journalist is actually knowledgeable about protests and police, it somehow no longer makes him a journalist. Shouldn’t this actually be more evidence that he’s a journalist? That he actually researched information on the protests and protesters and knew common slang and situations?

There were many more crazy things said — you can read many more quotes at the Unicorn Riot Twitter feed — but this seems like a really, really weak case, with a really, really crazy prosecution position by the DOJ.

But, take a step back and think about what Qureshi’s arguments would mean if accepted. It would mean that merely being outside near a protest would put you at risk of serious criminal liability — just because you might incidentally help make others anonymous or hidden. That is not and cannot be the law. And you know who knows that? Assistant US Attorney Rizwan Qureshi. In an interview he gave two years ago, he talked about the importance of being “engaged in your community, no matter where it is” in order to do things like “eradicate hate” and “fight hate.” And yet, here he is, just a couple years later, trying to throw people in jail for publicly engaging with their community to try to fight hate.

Filed Under: alexi wood, brittne lawson, doj, donald trump, first amendment, free speech, inauguration, journalism, protests, rizwan qureshi

Court Denies Government's Demasking Demands In Inauguration Protest Case

from the settle-down,-boys dept

Nine months after the DOJ’s Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain.

The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20’s Facebook page. If these hadn’t been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users’ accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn’t be allowed to keep it.

The government claimed evidence of criminal activity — specifically violation of DC’s rioting laws — would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it’s still seeking a whole lot of communications presumably unrelated to the underlying charges.

The district court has modified the warrants via a court order, paring back the government’s demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) — one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming.

On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page.

Perhaps impelled by the ACLU’s excellent briefing of the issue, his opinion contains an extended discussion of the two-step process, and of the importance of adapting that process to constrain searches that might otherwise intrude too deeply in protected political expression and create a chilling effect on future online political expression. Even more clearly than he did in his DreamHost rulings, Judge Morin states squarely that the government has never shown probable cause to believe that communications of anonymous third parties with the accounts themselves contain evidence of criminal activity charged in the indictment. Consequently, the third parties’ identifying information was entitled to be protected from disclosure pursuant to the order enforcing the search warrant.

If this is more than a DOJ fishing expedition, the government will need to move fast to get users stripped of their anonymity. Prosecutors are expecting to go to trial sometime in November, and Judge Morin won’t approve the release of identifying information unless the government can hand over compelling reasons to de-anonymize particular Facebook users. As for Facebook, it claims manual redactions of the requested communications will take at least three weeks, so the government may have to talk a judge into delaying the trial or possibly face having to dismiss some charges.

According to Levy, that’s the best part of the opinion, one that will probably be cited by others challenging overbroad search warrants. The rest of it is less spectacular, with some of it downright concerning.

While the order protects the identities of users who interacted with the page, it will not protect their communications. The government may not have full access to private messages, but it will apparently get a copy of anything matching certain keywords. The users targeted directly by warrants (as opposed to a targeted Facebook page) will see even more of their private communications exposed. This is troubling because much of what was discussed will likely be the sort of speech the government is supposed to protect. After all, DisruptJ20 was a protest group. Some protests may turn into riots, but it’s unlikely the genesis of those riots are contained in Facebook private messages.

Worse, as Levy points out, there’s still a whiff of fishing expedition in the air. Without clearer justifications for the search demands, the government appears to be engaged in the chilling of political speech.

Even assuming that there is sound reason to believe that some material on any of these pages relates to the riot, the DisruptJ20 page as well as the individual pages will have a great deal of political expression unrelated to the riot. A colloquy between Judge Morin and the Assistant U.S. Attorney during the hearing suggested that photographs of riot activity may have appeared on the pages at one time, and that the government hopes its search warrant can provide access to photos that would help identify participants, and lead to information about the photographers who can be subpoenaed to authenticate them. Given the continued secrecy of the probable cause affidavits, we cannot be sure what other bases the government may have given for the search of these three accounts.

So, the government may still be allowed to fish, but it will have to use a shorter line. But overall, it appears the government needs to expect to have a lot more of its warrants challenged if it appears to be targeting a whole bunch of people and their protected speech.

Update: Public Citizen has filed a motion for reconsideration [PDF], asking the court to take another look at one of its questionable search constraints. The filing points out the court appears to contradict itself in its ruling, possibly giving the government full access to communications of innocent parties, constrained only by redaction of indentifying information.

Doe l, Doe 2, and Doe 3 move the Court to clarify and, if need be, to modify in one narrow respect, its final order regarding the manner in which the search warrants to Facebook seeking data from the accounts of Lacy MacAuley and Legba Carrefour will be executed. There is an ambiguity in the language on page 15 of the Court’s order with respect to the redactions that Facebook is to make from the data in MacAuley and Carrefour accounts before the information is turned over to the government for “front to back” review. One reading of the language is that any content posted by innocent third parties is to be redacted; another is that only identifying information is to be redacted from such content, after which that content, like the content posted by MacAuley and Carrefour, is to be subject to “front to back” review. If the latter is the proper interpretation, then the Does ask for reconsideration, based on the contention that a factual distinction drawn in the Court’s opinion about how Facebook accounts work is incorrect, and not supported by the record.

The filing also asks the court to reconsider its denial of Public Citizen’s motion to intervene. As is explained in Levy’s blog post, Judge Morin’s order in the Dreamhost case (related to the DisruptJ20 website and a warrant that targeted more than a million site visitors) greatly benefited from expert analysis and other contributions from intervenors. The same sort of expertise would further refine the restraints imposed on the government’s search efforts as well as give the three parties challenging the warrant more legal knowledge to work with.

Filed Under: anonymity, demasking, disruptj20, doj, inauguration, protests
Companies: facebook

Government Drops Its Demand For Data On 6,000 Facebook Users

from the sunlight-disinfectant dept

It’s amazing what effect a little public scrutiny has on government overreach. In the wake of inauguration day protests, the DOJ started fishing for information from internet service providers. First, it wanted info on all 1.2 million visitors of a protest website hosted by DreamHost. After a few months of bad publicity and legal wrangling, the DOJ was finally forced to severely restrict its demands for site visitor data.

Things went no better with the warrants served to Facebook. These demanded a long list of personal information and communications from three targeted accounts, along with the names of 6,000 Facebook users who had interacted with the protest site’s Facebook page. Shortly before oral arguments were to be heard in the Washington DC court, the DOJ dropped its gag order.

The last minute removal of the gag order appears to have been done to avoid the establishment of unfavorable precedent. It looks like the government perhaps has further concerns about precedential limitations on warrants served to service providers. As Kate Conger reports for Engadget, the DOJ has decided to walk away from this particular warrant challenge.

In a court hearing today, the Department of Justice dropped its request for the names of an estimated 6,000 people who “liked” a Facebook page about an Inauguration Day protest, the American Civil Liberties Union said. The ACLU challenged several warrants related to protests against President Trump’s inauguration on Friday, one of which included the search, claiming they were over-broad.

The ACLU notes the judge seemed sympathetic to allegations of overreach. In response, the government has apparently reduced its demands to info from two arrested protestors’ accounts and further limited the date range from which data is sought.

This isn’t a good look for the government. Dropping demands before an order has been issued indicates the DOJ had some idea its demands were too broad. It also shows the government will make concessions, rather than risk adverse rulings.

Then there’s the whole issue of seeking personal information on protesters. This sort of thing creates a very real chilling effect by threatening to turn over personal information to the same entity the protesters were protesting. Fortunately, the government has walked back most of its demands in both cases.

Filed Under: disruptj20, doj, inauguration, privacy, social media, warrant
Companies: aclu, facebook

DreamHost Wins Challenge Against DOJ's Overbroad Data Demands

from the the-Man-briefly-experiences-having-it-stuck-to-him dept

DreamHost has been fighting the DOJ and its breathtakingly-broad demand for information on all visitors to an anti-Trump website. This has gone on for a few months now, but the origin of the DOJ’s interest in the DreamHosted disruptj20.org site traces all the way back to protests during Trump’s inauguration.

Here’s what the DOJ demanded DreamHost hand over:

a. all records or other information pertaining to that account or identifier, including all files, databases, and database records stored by DreamHost in relation to that account or identifier;

b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, 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), and information 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 person regarding the account or identifier, including contacts with support services and records of actions taken.

These demands conceivably applied to every single one of the site’s 1.2 million visitors. The DOJ scaled back some of its demands a week later, but also stated its attempt to “converse” (read: talk DreamHost into compliance) had been rebuffed, with the hosting company stating its desire to continue challenging the subpoena.

This demand for information would be in addition to a warrant it served to Facebook, seeking everything ever from the accounts of more than 6,000 users. This was served to Facebook, along with a gag order — something the DOJ conveniently dropped the night before oral arguments, perhaps sensing it might be in for an unfavorable precedential ruling.

Chief Judge Morin of the DC Superior Court has issued a ruling on the DreamHost-targeting subpoena, and it’s good news for everyone but the overreaching DOJ. DreamHost reports on the judge’s order:

Under this order, we now have the ability to redact all identifying information and protect the identities of users who interacted with disruptj20.org before handing over any data to the court.

[…]

We are now required to hand over a drastically reduced amount of data to the government and will redact any identifying information from every scrap of it that relates to non-subscribers.

On top of that, the DOJ will have to submit search protocols and procedures to the court for approval before demanding further site visitor info and limit its requests to info it can show the court is linked to actual criminal activity (violations of DC’s rioting statutes). The DC Superior Court will make final determinations on the validity of the government’s data requests before any identifying information is released by DreamHost.

As the court notes in its order [PDF], it’s not interested in assisting the government with its fishing expeditions.

Because of the potential breadth of the government’s review in this case, the Warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the Court has previously stated, 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.

And this still may not be the end of the DOJ’s problems. Even if revised info demands are approved by the court, there are still a handful of potential investigation targets (site visitors and owners) readying their own challenges of the government’s data requests. At this point, site visitors who’ve already attempted to challenge the subpoena obviously don’t know if they’re actually targeted by the DOJ. The court has dismissed their appeals without prejudice, which will allow them to refile if they make the government’s final cut.

This is good news for everyone who avails themselves of third-party services (which is pretty much everybody). A little pushback sometimes goes a long way. Anyone seeking to keep their private info private should be taking note on who’s willing to challenge the government’s overreach and who’s willing to act as little more than a data broker for law enforcement agencies.

Filed Under: disruptj20, doj, fishing expedition, inauguration, privacy, protests
Companies: dreamhost

DOJ's Facebook Warrants Target Thousands Of Users For Protesting Inauguration

from the round-up-the-usual-social-media-accounts dept

The ACLU is going to court to fight government warrants seeking info on thousands of Facebook users who interacted with a Facebook page related to Inauguration Day protests. The resulting arrests have generated several extremely broad search warrants seeking communications and other personal information from Facebook and the protest site’s hosting provider.

For awhile, the targets of these warrants could only be guessed at, thanks to the gag order attached to the Facebook warrants. The gag order was finally lifted by the DOJ less than a day before it was due in court for oral arguments. It wasn’t Facebook securing a win so much as it was the government avoiding a loss — a possibly-precedential ruling on gag orders in Washington, DC courts.

The fight goes on, with the charged protesters — and Facebook itself — fighting the overbroad warrants.Thanks to the last-minute lifting of the gag order, the targeted protesters are fully aware of the government’s efforts. More importantly, they’re able to participate in challenging the warrants before the government takes possession of their personal data.

Paul Levy of Public Citizen points to the latest filing by the ACLU, and makes it clear there’s a lot of personal info at stake.

Lacy MacAuley and Legba Carrefour… were identified on the DisruptJ20.org web site as media contacts for that web site. The demand for a search of the DisruptJ20 Facebook page is troublesome for the same reason that the demand for the search of the DisruptJ20.org web site threatens First Amendment values — even if we assume that some member of the grouping that called itself DisruptJ20 organizers was at the same time secretly plotting a riot, that not should be a basis for subjecting everybody who was in touch with the DisruptJ20 Facebook page to investigation by Trump Administration prosecutors.

The demand to search the Facebook accounts of MacAuley and Carrefour is even more troubling. Individual Facebook accounts often contain highly personal matters, and if political opponents of the Trump Administration know that they can too easily have their entire Facebook accounts searched just because it turns out that some coalition of which they were a part included somebody who was secretly planning a riot, the chilling effect on future participation in anti-Trump political activity could be substantial.

The chilling effect — and the demands for data — go much further than these two individuals. A third warrant seeks access to info on the DisruptJ20 Facebook page. With this warrant, the government can obtain data on thousands of Facebook users.

Although the page is public, the warrant would require the disclosure of non-public lists of people who planned to attend political organizing events and even the names of people who simply liked, followed, reacted to, commented on, or otherwise engaged with the content on the Facebook page. During the three-month span the search warrant covers, approximately 6,000 Facebook users liked the page.

This echoes the tactics used by the DOJ against Dreamhost. The warrant served to the service provider originally asked for info on all visitors to the DisruptJ20 site — 1.3 million users in total. These expansive demands create a massive chilling effect. Any activists and event organizers could easily have their digital lives turned upside down simply by visiting pages and websites the government chooses to target post-demonstration. The warrant for visitors to the Facebook page may only seek a list of visitors, but it’s likely the first step in seeking additional warrants to gather a wealth of personal info on people who did nothing more than “like” a Facebook page.

What the government wants on the two charged demonstrators is… everything. The warrants [PDF] not only ask for everything they’ve posted to Facebook, but the contents of private messages, any Facebook searches they’ve performed, deleted posts/comments, and any pending or rejected Friend requests.

The ACLU is trying to quash these warrants on behalf of the targets, but it first has to get the DC criminal court’s official invitation. Its motion to quash/intervene [PDF] is currently awaiting the court’s examination.

It’s unusual basic rioting charges have resulted in a Fourth Amendment battle, but that’s how much social media has shifted the way we communicate. As we spend more and more time online, the government is going to be showing less and less interest in our physical houses and papers. And even as the government avails itself of vastly-increased amounts of personal information, it’s keeping its own houses/file cabinets locked up tight: Post-demonstration rioting charges are standard operating procedure for law enforcement agencies, which makes you wonder what they’re trying to hide behind gag orders and sealed dockets.

Filed Under: doj, free speech, gag order, inauguration, protests, warrants
Companies: facebook

Government Drops Facebook Search Warrant Gag Order At Eleventh Hour

from the preventative-action dept

Facebook has won its challenge against a warrant gag order. Unfortunately, it’s more of a case of the government forfeiting than the social media giant raising a successful challenge.

Details from the case are limited, but the warrant appears to target protesters arrested during Trump’s inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government’s demand for 90 days of Facebook activity from three accounts. But there’s no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work.

Here are the details, from Zoe Tillman at Buzzfeed.

According to court papers filed jointly by Facebook and the US attorney’s office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had “progressed … to the point where the [nondisclosure orders] are no longer needed.”

The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government’s request, making Facebook’s appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon.

This leaves the government’s case intact and mostly buried. The now-lifted gag order wasn’t indefinite: it allowed Facebook to notify users 30 days after info was handed over to the government. But so far, no info has been handed over, which means the clock hasn’t budged on eventual disclosure. Now Facebook can inform the users affected, but the government’s removal of the gag order suggests disclosure never posed any real risk to the government’s investigation.

The government probably sensed things wouldn’t go completely its way after the DC Appeals Court asked other interested parties to submit briefs on the issue. Multiple tech companies have challenged government search warrants and gag orders in last few years, resulting in a handful of small wins on the civil liberties front. Faced with this shift in judicial behavior, the government ditched this case just before public arguments were set to begin.

The lack of a positive precedential rulings hurts, but there’s no shortage of gag order challenges to be had. As Facebook’s own data shows, more than half the requests it receives from US law enforcement come with gag orders attached. The FBI’s liberal use of National Security Letters adds to that percentage, but statutorily-limited reporting makes it impossible to tell how often the feds demand info and vows of silence simultaneously.

Filed Under: doj, gag order, inauguration, search warrant, social media
Companies: facebook

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

from the the-doj-going-too-far?-what-a-surprise dept

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, including all files, databases, and database records stored by DreamHost in relation to that account or identifier; b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, 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), and information 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 person regarding the account or identifier, including contacts with support services and records of actions taken.

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 be scrutinized with ?particular exactitude? under the Fourth Amendment. See Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978). ?The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.? 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 requires non-party DreamHost, LLC (?DreamHost?) to turn over every piece of information it has about every visitor to a website expressing political views concerning the current administration. This information includes the IP address for the visitor, the website pages viewed by the visitor, even a detailed description of software running in the visitor?s computer. In essence, the Search Warrant not only aims to identify the political dissidents of the current administration, but attempts 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-mail inquiries and comments submitted from numerous private e-mail accounts and prompted by the website, all through a single sweeping warrant.

The Search Warrant cannot survive scrutiny under the heightened particular exactitude standard required by the presence of the First Amendment issues. It fails to identify with the required particularity what will be seized by the government. It also fails to provide DreamHost with any assurance that the government will return or destroy the large portion of the information irrelevant to the government?s criminal case or cases. These features render the Search Warrant unreasonable under the Fourth Amendment. In addition, the Search Warrant violates the privacy protections 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.

Filed Under: 4th amendment, disruptj20, doj, donald trump, fishing expedition, inauguration, warrant
Companies: dreamhost