Judge’s Order on Anti-Trump Site Data Cuts Both Ways

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By Jordan S. Rubin

An Aug. 24 ruling ordering the host of a website run by anti-Trump group DisruptJ20—allegedly linked to rioting during the presidential inauguration—to turn over data about users was significant. But equally noteworthy, perhaps, were the restrictions placed on the government before it can dig into the data.

D.C. Superior Court Judge Robert Morin ordered DreamHost, a California-based technology company, to comply with a Justice Department warrant to surrender disruptj20.org data. But he also required the government—before it searches the data—to explain who will be conducting the search, as well as how it plans to minimize any intrusions into the privacy of innocent third parties.

The decision, made inside a packed courtroom not far from where melees erupted last Jan. 20 as Donald Trump was sworn in as president on the U.S. Capitol steps, illustrated the latest battle in the war between privacy and criminal investigations in the internet age. The inaugural protests have resulted in 190 pending criminal cases and 19 guilty pleas so far, prosecutor John Borchert said at the Aug. 24 hearing.

Morin’s ruling is “on the front lines of a very important Fourth Amendment question,” Stephen E. Henderson, a professor at the University of Oklahoma College of Law in Norman, Okla., told Bloomberg BNA. Henderson has written on the topic and believes “magistrates can and should issue warrants containing such restrictions whenever those restrictions are necessary to render the search reasonable.”

Another law professor, Clark D. Cunningham, of Georgia State University College of Law in Atlanta, agreed Morin’s decision is noteworthy. Cunningham, who has been following the case, came up from Atlanta for the hearing.

It’s an important “test case” for the issues at play, he told Bloomberg BNA.

DreamHost may appeal Morin’s order, its general counsel, Christopher Ghazarian, told Bloomberg BNA. Regardless of whether that happens, the judge’s decision is “great news overall” for internet users, he said.

Though Ghazarian disagreed with the order to comply with the warrant, the controls the judge imposed on the government are a “fantastic step in the right direction,” he said.

The Justice Department didn’t respond to a request for comment. At the hearing, its lawyers said the government is mindful that people may have accessed the site for non-violent political reasons. But the government’s interest isn’t in searching through people’s political activity, but rather with investigating the riot, Borchert said.

Inauguration Violence

The group that runs DisruptJ20 is opposed “to the Trump regime and the fascism it represents” and is also opposed to violence, according to the site.

But the site was used to plan and advertise a violent riot the day of the inauguration, the government said. Rioters carrying “hammers, crow bars, wooden sticks” and other weapons “engaged in violence and destruction that caused hundreds of thousands of dollars’ worth of property damage and left civilians and officers injured,” the government said in an Aug. 21 filing.

So the government got a warrant to search the site to investigate those involved.

DreamHost opposed the warrant for several reasons, including First and Fourth Amendment and other privacy concerns. Complying with the warrant would require turning over IP logs for over a million visits to the site, and the government imposed no limitation on the time period for which it sought the information, the company said in an Aug. 11 motion.

In response, the government moved to limit the amount of data it’s seeking and it also imposed a time limit for the period over which it’s seeking the data. The government no longer asks for the million-plus IP addresses.

But DreamHost still opposed the amended warrant, clearing the way for the Aug. 24 hearing.

The Hearing 2-Step

Despite the underlying political issues, perhaps the most important aspect of the hearing was procedural: not whether DreamHost would be forced to comply with the warrant, but how much data it would have to turn over and how the government would have to handle the data.

At issue was the “two-step” process for handling stored electronic data in connection with search warrants. Critics of the process say it’s unconstitutional because it allows the government to seize and search more information than is allowed by the warrant.

Yet, proponents say there’s no workable alternative. DreamHost attorney Raymond O. Aghaian‘s failure to articulate such an alternative was one of the reasons that ultimately led Morin to order the company to comply with the amended warrant.

But the judge’s First Amendment concerns led him to impose the controls on the way the government handles the data.

Morin, in effect, is acting as a “special master” in the case, Cunningham said, referring to a party sometimes appointed by a judge to carry out a specific task related to a case.

Yet, despite being “glad” that Morin “is taking some steps to oversee the government’s search,” the Electronic Frontier Foundation, a non-profit digital privacy group, is not satisfied, because the government will still be involved in the initial search notwithstanding the judge-imposed controls.

The foundation “recommends the use of a neutral third party or special master to be entrusted with the task of parsing through the relevant evidence to be turned over to law enforcement in order to limit government access to user data to which it has no probable cause to collect,” EFF attorney Stephanie Lacambra told Bloomberg BNA.

The two-step process allows an “overseizure of digital information followed by a general search of the information for evidence responsive to the warrant—this is the very danger that the Fourth Amendment is meant to guard against,” she said.

“We can not suffer our civil liberties to be circumvented in the digital space just because the law has failed to keep up with the nuances of technology,” she said.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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