How much privacy can political activists expect on the Internet? For those engaged in conspiracies to commit violence at protests, probably not as much as they’d like — but that may have implications for the rest of us as well. A federal court ruling today sided with prosecutors against the company that hosted an ant-Trump website tied to riots on Inauguration Day:
A District of Columbia Superior Court judge approved a government warrant on Thursday seeking data from an anti-Trump website related to Inauguration Day riots, but he added protections to safeguard “innocent users.”
An a hearing, Chief Judge Robert Morin said DreamHost, a Los Angeles-based web hosting company, must turn over data about visitors to the website disruptj20.org, which is a home to political activists who organized protests at the time of Donald Trump’s inauguration as U.S. president in January.
Politico’s Josh Gerstein and Steve Overly have followed this story for a while, and discuss the background on the request. This case involves criminal charges against almost 200 people, and the prosecutors need access to those communications in order to prove intent. That is key to the Department of Justice’s efforts to discourage anarchist groups from staging further riots.
It’s not the only source in question in these prosecutions, either:
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.”
Two days ago, the Electronic Frontier Foundation noted that the DoJ had retreated from its original demands, but warns that the more limited search warrant still could set some dangerous precedents:
But the new warrant is not without its flaws. First, it’s not clear from either the warrant itself or the facts of the case whether DOJ is ordering DreamHost to turn over information on one account or multiple accounts. At a minimum, DOJ should be required to specify which accounts are subject to the order. More fundamentally, DOJ is still investigating a website that was dedicated to organizing and planning political dissent and protest. That is activity at the heart of the First Amendment’s protection. If, as DOJ claims, it has no interest in encroaching on protected political activity and organizing, then it should allow a third-party—like a judge, a special master, or a taint team—to review the information produced by DreamHost before it is turned over to the government. Anything less threatens to cast a further shadow on the legitimacy of this investigation.
Those are issues worth pondering, especially for websites that openly advocate for political positions and candidates. (Ahem.) Did the website merely provide a common meeting place for like-minded opponents of Donald Trump and the duopolistic American political system, or did it participate in and encourage violence as a response? The website on January 19th told readers that its purpose was “widespread civil resistance” and “direct actions”:
We’re bringing widespread civil resistance to the streets of Washington, DC through protests, direct actions, and even parties and we want you there with us.
That’s not exactly a Brandenburg-level incitement, but then again, perhaps there’s more than this for prosecutors to investigate, too. It’s a lot closer to the edge than Donald Trump complaining that journalists stink, but it’s still on this side of the edge, too. Their “Legal” section curiously didn’t advise not to do anything illegal, but mostly gave advice on what to do once their participants got arrested. There isn’t anything illegal about that either, and some of this is pretty good advice under any circumstances, but it’s an interesting state of mind.
Still, civil resistance and direct actions are not in and of themselves illegal, and courts should take a very cautious approach to search-warrant applications such as these. If they have specific cause on specific suspects, this kind of warrant makes sense. But if these become the norm, then it may not be the Antifa types who have to comply with them in the next administration and their DoJ.