Defying First Amendment concerns, a judge in a Washington, D.C., trial court has upheld a controversial search warrant that would allow the government to sift through data from a major protest website.
Prosecutors allege that the website, DisruptJ20.org, was used to coordinate a riot on Inauguration Day, which led to property damage at multiple businesses in downtown Washington. But the vast majority of the actions and protests the site coordinated were peaceful. It’s unclear what connection, if any, the site had to the violence.
Robert E. Morin, the chief judge of the D.C. Superior Court, ruled in favor of the government. But Morin added additional protections, ordering that the government must, before executing its search, file special affidavits describing its procedures. “I’m going to be supervising their search,” he said.
The data that investigators don’t identify as criminal evidence would be filed with the court and placed under seal, according to the ruling. Morin forbade the investigators from sharing that data with other government agencies.
Earlier this month, the Department of Justice received pushback from privacy and free-speech organizations after it obtained a search warrant against the website-hosting company, DreamHost. The original warrant order was incredibly broad, requiring the company to produce all of its data on the website – including visitor logs from all 1.3 million people who viewed it.
DreamHost challenged the warrant, saying that the information could be used to identify people’s political preferences, and that the request for so much data couldn’t possibly be legal under the First Amendment.
On Tuesday, the Department of Justice dropped its request for visitor logs, but still demanded communications and group email lists from the organizers — information that DreamHost says could still be used to identify the political beliefs of innocent people.
At a hearing on Thursday, Raymond Aghaian, a lawyer representing DreamHost, said that DisruptJ20’s emails and email lists were “essentially tantamount to the membership list of an advocacy group.” Aghaian also argued it was unconstitutional for the government to be able to search through so many email accounts with one warrant, without presenting evidence that any specific account was connected to criminal activity. “What they’ve done here is essentially obtained a general warrant,” he said.
Despite the First Amendment concerns, the government is insisting on its right to search the data itself. At Tuesday’s hearing, Washington prosecutor John Borchert called the alternatives “unworkable” and said, “We can’t have DreamHost be deputized to do the search for us.”
Morin said his ruling struck a balance between privacy and First Amendment concerns, and the government’s desire to collect information about potential crimes: “This is my view of how I can protect both legitimate interests.”
Aghaian asked for a stay of the ruling in case DreamHost decided to appeal, but it is unclear whether their lawyers will choose to do so.
The hearing also addressed the government’s modification to its original search warrant. Borchert claimed that the authorities were never really interested in the website’s visitor logs. “We weren’t aware of these matters until DreamHost filed in opposition,” he said.
Aghaian said that was implausible: the the original warrant specifically requests them. “For them to now say that this is not what they wanted, that they never intended to ask for this, is somewhat incredible,” he told the judge.
Chip Gibbons, legislative counsel for free-speech group Defending Rights and Dissent, told The Intercept that the ruling could set a precedent for searching other protest sites.
“Regardless of what minimization procedures are put in place, or if the bulk of the information is placed under court seal, turning over membership lists, information about political views, or associations to the government is by its very nature chilling,” Gibbons said.