Web Hosting Company Ordered to Turn Over Information On anti-Trump Website

A Legal storm is building after a D.C. Judge ordered a Web Hosting company to give the Government a broad swath of Data about Individuals connected to an Anti-Trump Website despite Arguments that doing so would impinge on their First Amendment Rights and stifle Online Political Discourse.

At a Hearing Thursday morning in D.C. Superior Court, Chief Judge Robert E. Morin, insisted he would put Restrictions on how the Government Reviews the Material in order to Protect those Rights. The Government must Disclose to the Court who will Search the Material and what Process they will use. They must also develop a Plan to Minimize the Search of Material unrelated to Criminal Activity.

Morin also ordered that Information Seized by Prosecutors not be Shared with other Federal agencies, and that Data not related to the Investigation be put under Seal with the Court and not Accessible to the Government without additional Permission.

An Attorney for web firm DreamHost, Raymond Aghaian, warned that turning over the Requested Information could cause a "chilling effect." He said the Company may Appeal the Court's Decision. "Providing the information outright to the government for the government to review and identify who the individuals are and what they said in relation to political expression, speech and exercising their right of association is entirely problematic," Aghaian said.

The Information sought by Federal Prosecutors includes the Emails and other Information of People who Communicated with DisruptJ20, a website used to Organize Protests of President Trump's Inauguration. Aghaian said the Information demanded by the Government includes Email Distribution Lists to which Activists subscribed in the weeks leading up to the Swearing-In.

Nearly 200 People are facing Criminal Riot Charges in connection with Violence and Property Damage that occurred as thousands of People marched in Downtown Streets to Protest Trump assuming the Presidency. Prosecutors said the Information is needed to Advance their Investigation into what the Government contends was a "premeditated riot" that took place in Washington on Inauguration Day.

However, Civil Liberties Advocates said the Judge's Ruling was troubling because it means Information on Innocent Users must be Handed over to the Government, albeit Subject to Procedures the Court and Prosecutors will develop to try to Separate Potential Criminal evidence from Routine Political Organizing. "The mere revealing of the identities to government agents, even under the strictures that [the judge] has provided for, is problematic," said Paul Alan Levy of Public Citizen, who represents several People who Visited the DisruptJ20 site. "This is a president who has shown he has no tolerance for dissent and is perfectly willing to allow extrajudicial means and extralegal means to be used to suppress dissent. ... If you're somebody who is communicating in opposition to the president, I think you have to be worried about being disclosed to a government agency."

In a Motion it filed objecting to the Search Warrant, DreamHost said the original Demand appeared to cover 1.3 Million Internet Protocol Addresses relating to Visits to the DisruptJ20 site from Jan. 23rd-28th. The Firm has Declined to give Prosecutors an estimate for the number of Visits prior to that period.

The Company continued to Object to the Warrant in Court Thursday even after Prosecutors retreated earlier this Week from their unusually wide-ranging Request for Data on every Visit to the Protest Site since it was set up in November. Prosecutors dropped altogether a demand for the Visit Logs and agreed to Limit the Request for other Data to Information from Jan. 20th or earlier.

The Firm's Lawyers argued that the revised Warrant was still too Broad because it seeks Emails from All Accounts Affiliated with the DisruptJ20 Domain, which he compared to searching all Apartments in a Complex because Police have Suspicions about the activities of the Building's Owner. "With one warrant they are able to obtain content from multiple email accounts. That is unconstitutional," Aghaian said in Court.

But the Judge questioned whether the Government has the Information to make a more Targeted Demand. "You're presuming the government knows, for example, what email accounts may have been involved in criminal activity," Morin said.

Aghaian also said the New Warrant still Covers Lists of Email Accounts Subscribing to Updates from the Site. "The mailing list is tantamount to the membership list of an advocacy organization," the Attorney said, pointing to a Supreme Court Precedent Protecting such Information from Disclosure. Prosecutor John Borchert said the Government is not looking to chill Political Protest, but to obtain Evidence related to how the alleged Riot was Orchestrated.

"The government is mindful of the First Amendment. We’re sensitive to those concerns," Borchert said. "It’s evidence of a specific crime that was committed on Jan. 20 by those individuals who were arrested at 12th and L" streets in downtown Washington, he added. Borchert never said directly Why Prosecutors couldn't Identify the specific Individuals they want Information about, but he suggested that Investigators don't know what Data DreamHost has or how it is Organized. "We're in something of a vacuum," Borchert said.

Morin said he needed to balance the Needs of Prosecutors against the First Amendment Rights of those who used the Site but did not engage in Criminal acts. He called for use of a "two-step process," where All Information related to the Site will be turned Over to the Government but the Data will then be Segregated to Separate out Information related to Criminal Activity. "I'm trying to balance First Amendment protections and their need for information," Morin said, referring to Federal Prosecutors. "This is my view of how I can protect both legitimate interests. ... I'm going to be supervising their search."

Courts have used similar Processes in other Cases, although sometimes the Sifting is done by a Neutral Magistrate, as opposed to Law Enforcement. Borchert said Investigators might conduct electronic searches by Keywords, but he did not Rule Out Detectives making a more Subjective Search for anything that might be Evidence of Crimes like Rioting or Destruction of Property.

Morin initially told Prosecutors to come up with a search-and-Sort Plan that he will need to approve in Advance of them accessing the Data. However, after Borchert said the Government needed to look at the Information First to Craft such a Plan, the Judge gave the Government the OK to briefly Look over what DreamHost produces. "You can do a general review," Morin said. He later seemed to deny the Company a Stay to pursue a potential Appeal. The Jjudge said he wants DreamHost to turn over the Information right away, although he said Prosecutors would not be able to Access it Immediately.

Critics said the arrangement was ill-suited to a Case involving Political Activism. "I’m still deeply uncomfortable with DOJ rifling through a bunch of First Amendment-protected communications. These types of limitations are positive, and they help narrow the scope of the intrusion, but they don’t eliminate all of the concerns," said Mark Rumold, Senior Staff Attorney at the Electronic Frontier Foundation, a Digital Rights group.

At least One other High-Profile Court fight that appears to be related to the Inaugural Protests is also brewing.
Next month, the D.C. Court of Appeals is scheduled to hear Oral arguments on Facebook's Objections to several Gag Orders that Bar the company from Informing Users about Search Warrants Demanding Information on their Accounts.
Most Details about that dispute are under Seal, but the court has revealed that it involves "an investigation into potential felony charges." In addition, Facebook said in a Summary of the Cases that producing the Records could undermine Individuals' "First Amendment right to engage in political speech and association." The Firm also said that "the events underlying the government’s investigation are generally known to the public."

The combination of statements suggests that the Search Warrants issued early this year have some Connection to Demonstrations surrounding the Inauguration. A variety of Privacy and Technology-focused Public Interest Groups have filed Amicus Briefs urging the Appeals Court to Reject the Gag Orders, including the American Civil Liberties Union, the Electronic Frontier Foundation, Public Citizen, and the Center for Democracy and Technology.











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