Despite “Efforts” to Minimize Chilling Effect, DoJ’s Warrant Remains Hugely Problematic
by Graham Owens
If you’ve spoken out against Trump — or if you spoke out against “Emperor” Obama — would you think twice about keeping it up if you knew the White House was building an enemies’ list? Would you feel any more comfortable attending a rally, or organizing behind the scenes, if a judge allowed federal agents access to information about critics of the administration — but assured you that the feds could only look at it under privacy-protective “minimization” procedures that the government would invent after it already had all the data? Probably not.
And that “chilling effect” — when government action deters the exercise of First Amendment rights — is a huge constitutional problem. Or at least, it should be. Yet, it’s up to the courts to recognize and prevent such a chilling effect on a case by case basis. Unfortunately, they sometimes fail to do so.
Such was the case two weeks ago when Dreamhost, a web hosting company, suffered a grave defeat in the D.C. Superior Court. Chief Judge Morin ordered Dreamhost to immediately comply with the Department of Justice’s request for data related to the website disruptJ20.org, which was used to organize anti-Trump protests on Inauguration Day — dismissing First Amendment arguments.
Judge Morin did try to minimize the invasiveness of the government’s warrant by retaining certain rights over the government’s review process. For example, the court ordered the Department of Justice (DOJ) not to begin reviewing the data until Dreamhost decides whether to appeal the decision, although no safeguards are in place preventing the government from starting its review immediately — as it has promised not to do. But the judge effectively granted DOJ the right to review every individual email account associated with the website with only one extremely broad warrant. According to Dreamhost’s counsel, these individual accounts may allow the government to access IP addresses, photos and videos, and even potential innocent third-parties whose only “crime” may have been nothing more than emailing someone with an @disruptj20.org email. In effect, the judge allowed the government to unmask these political dissidents with what amounts to a general warrant — the very thing the Fourth Amendment is supposed to protect against. It’s two constitutional violations in one: a privacy intrusion and the kind of chilling effect on political speech courts have long sought to protect.
Narrowed Warrant Still Raises Constitutional Questions
The warrant in question was initially served on July 12 and required Dreamhost to produce every file and record associated with the website disruptJ20.org, a website used to express political views against the current administration. After a significant public backlash, the government narrowed its warrant to no longer include information related to the estimated 1.3 million visitors of the website. But the current court-approved warrant still raises significant constitutional questions due to its generalized nature: restricting certain types of activity protected by the First Amendment — such as political association and speech — requires the government to overcome strict scrutiny by establishing a “compelling government interest” in the information being sought, and that the restriction is narrowly tailored to achieve that interest. Other types of speech, such as commercial speech, are afforded less protection, with the government still having to withstand intermediate scrutiny. This requires a showing that their actions further an important government interest by means that are substantially related to that interest. Under either test, the government’s single search warrant almost surely lacks the particularity required by the First Amendment. Indeed, under this single sweeping warrant, the government now has access to every individual email account associated with the anti Trump website — all with individual and unique logins and passwords — as well as potential access to political membership lists.
As Dreamhost’s counsel argued, giving the government the ability to access large swaths of individual email accounts associated with the website with only a single broad warrant raises significant constitutional and legal questions. As Dreamhost’s counsel put it, this is analogous to saying the government would only need one warrant to access an entire apartment complex when searching for a drug dealer, despite each individual apartment representing a unique and private residence (also with its own unique lock and key). As the Supreme Court held long ago, such broad warrants violate the Fourth Amendment; the government must obtain a search warrant for each individual residence.
Perhaps most significantly, under the two-step warrant process approved by the court, the government will gain access to all information under the warrant — including troves of information related to political association membership and speech — and will alone have the power to determine what is seizable. This means that the government may now independently review this trove of information about political dissidents without direct oversight and, only after having viewed every detail, will they have to turn over any information not deemed necessary to the investigation. Whether they ultimately seize it or not, having viewed the private information in the first instance will likely chill Americans’ willingness to openly engage in online political discussions.
This is exactly the type of chilling effect the Supreme Court feared, when it declared that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” Indeed, in reaffirming First Amendment protection of anonymous speech, the Court again proclaimed in 1995, an author’s “decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” Ensuring that no doubt be left as to the importance of protecting online speech, Congress codified this protection to online material under the Stored Communications Act, which allows the government to obtain customer records from Internet service providers, but only upon providing “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records or other information sought, are relevant and material to an ongoing criminal investigation.”
Ultimately, the government here has made no such showing of particularity. In fact, when discussing why the government needed access to information from the server prior to October 2016 (when the website was created), DOJ expressly acknowledged that it didn’t know if this part of the proposed warrant would produce any data, let alone data related to the commision of a crime. Thus, while hardly any investigations are conducted “solely” on the basis of First Amendment activities — and law enforcement officials will invariably argue, as they did here, that their investigation is based at least in some part on criminal activity — the focus of the inquiry should not be on whether the investigations are targeted exclusively to First Amendment activities but on whether the investigations have a chilling effect on such activities. This investigation, which specifically targets political dissidents without any direct showing of criminal activity, and Judge Morin’s decision will surely have such a chilling effect on Americans’ willingness to undertake political discourse online and should be overturned.
What the Order Said
According to Judge Morin’s final order, Dreamhost must immediately turn over every email, including any photos, messages, or records contained within them, related to @disruptj20.org. However, the government may not review the information until Dreamhost decides whether to appeal. In addition, the government must provide an ex parte report to the court prior to reviewing any materials, which must include (1) the list of names of any officers or individuals who will have access to and review the information, and (2) an outline of the government’s “minimization protocol” — i.e., how “innocent user” data will be separated and handled. Anyone not mentioned in this report — including other federal agencies — may not access the information provided to the government by Dreamhost.
After reviewing the information provided from the warrant, the government must provide two additional ex parte reports:
1. One providing the court with all data the government deems not covered by the warrant, which the court will put under seal; and
2. Another providing all the data that the government determines is covered by the warrant, along with an explanation as to why the information is covered.
Major Questions Left Unanswered
The most concerning aspect of the judge’s order — which requires Dreamhost to immediately turn over all emails to, or associated with, the entire domain disruptJ20.org, — is the lack of safety protocols in place to prevent the government from reviewing information not actually covered by the warrant. Specifically, the order raises the imperative question of what, if any, safety measures would prevent DOJ from looking at the information (even though they’ve promised not to) and starting to identify political opponents, regardless of whether DOJ ultimately retains the information for use in this criminal prosecution. The judge turned a blind eye to this potential for abuse, setting up an irrelevant distinction:
1. Turning over and reviewing of the information, which somehow did not raise First Amendment concerns, and
2. The actual permanent retention of the information, which did raise First Amendment concerns.
This distinction fails to capture the critical point: the chilling effect comes from the perception, especially among political activists, that the government can easily unmask their identity. Here, that’s exactly what the judge’s order has allowed: his order might stop the government from using the identity of people associated with disruptJ20.org in this particular criminal prosecution, and maybe even in follow-up criminal prosecutions, but it won’t stop them from building an enemies’ list as they go through all the information in the domain. There’s simply no way for the court to stop the DOJ from passing identifying information on to political actors in the administration, who might, for example, use that information to make decisions about hiring federal employees or contractors, IRS audits, etc.
Additionally, despite Judge Morin’s claim that he was concerned with the chilling of First Amendment rights, there was no suggestion by the court that the DOJ investigators should actually roll up their sleeves and do genuine investigatory work before obtaining the warrants. The government knows, and has access to, the names and information of the almost 200 individuals arrested on Inauguration Day. Why can’t the investigators interview those people, start with the subpoena process and then, as they gain knowledge, limit their warrants to only those they know, or have reason to know, were engaged in criminal activity? Such is the procedure generally used in drug investigations: the court relies on those in custody and subpoenas to gather the information necessary to obtain an appropriately narrow search warrant.
Everyone should be following this case closely, for it may become the paradigm for how other courts grant warrants under similar circumstances. For more on how government investigations can have a chilling effect on online privacy and speech, check out the coalition letter TechFreedom signed onto and stay tuned for our two-part series discussing in greater detail the Department of Justice’s attempts to identify the online users of Dreamhost and Glassdoor.com.