Efforts by US prosecutors to identify up to 1.3 million people who accessed an anti-Trump protest website is unconstitutional, a court will hear on Friday.
Lawyers for DreamHost, which hosts disruptj20.org, will argue at 9.30am in a Washington DC courtroom that the demand for visitor records from the website breaks both the First and Fourth Amendments on free speech and unreasonable search.
Last month, the US Department of Justice demanded DreamHost hand over 1.3 million IP addresses of visitors, as well as any contact information, submitted comments, emails and uploaded photos. It refused.
The website was used to organize protests on President Trump's inauguration on January 20 this year, and the government's demand is part of an effort to identify protestors who smashed windows and set a car on fire, among other incidents. So far more than 200 protestors have been charged with everything from inciting a riot to destruction of property.
In its legal filing [PDF] to the court, DreamHost uses several touchstone cases to argue that the demand is counter to American laws and traditions.
"Where a search warrant endangers First Amendment interests, the warrant must be scrutinized with 'particular exactitude' under the Fourth Amendment," it argues, using a US Supreme Court case over a police raid of a student newspaper in which the cops sought photos of a 1971 demonstration on the campus of Stanford University.
In this particular case, given that the demonstrations were specifically focused against president-elect Donald Trump, DreamHost also argues that the DoJ demand is, in essence, political.
"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 legal filing states.
Hand it over
The fight started just a week after the inauguration when DreamHost was served with a Grand Jury subpoena to hand over details of those who had created profiles on the site and any contact and payment details related to them. DreamHost duly handed the information over and thought that was the end of the matter.
However last month it received a search warrant demanding that the company hand over any and all information connected to the website, including all details of third-party visitors to the site. The rationale given was that there was probable cause that the company held information ("property") that was in violation of Washington DC laws on rioting.
The "warrant" – which in this context is more like a subpoena – is incredibly broad and as a result is unreasonable, argues DreamHost. After a series of back-and-forth phonecalls between its general counsel and the DoJ in which DreamHost raised its concerns about the broad nature of the warrant, the issue remained unresolved and the government filed a motion to compel, which DreamHost refused.
Of most interest to the DoJ is communications run through the website where legal advice was provided to protestors who were arrested or those looking to support people who had been arrested. A number of different accounts were set up on the site with separate logins to provide such advice and, presumably, information about the nature of the arrests and individuals involved was shared.
The warrant violates the Fourth Amendment, DreamHost argues, referencing several legal precedents about protected speech and the fact that "concerns about privacy are especially critical when people engage in aspects of speech and association during political campaigns."
It also points to cases involving Amazon and Microsoft in which the open-ended nature of the request for all information on all visitors without any date restriction was ruled unconstitutional. The broad nature lacks the "specificity" required.
The company also argues that the warrant violates the Privacy Protection Act. It says it has reviewed much of the information requested and argues that it qualifies as either "work product" or "documentary material" and so benefits from additional legal protections.
That is probably the weakest legal argument in what to most legal experts looks like a strong case for the DoJ's motion to compel being thrown out of court. As commentators on both side of the political spectrum have noted in response to the case, the First and Fourth Amendments were originally added to the Constitution precisely to prevent a government from harassing political opponents.
The sheer breadth of the warrant would, without a doubt, expose the details of people who did not engage in any rioting or criminal conduct but whose only activity was to oppose the incoming president. That would make it a very dangerous precedent to set and one that a DC court is unlikely to want to make. ®