Washington (CNN)Trump administration lawyers are demanding the private account information of potentially thousands of Facebook users in three separate search warrants served on the social media giant, according to court documents obtained by CNN.
The warrants specifically target the accounts of three Facebook users who are described by their attorneys as "anti-administration activists who have spoken out at organized events, and who are generally very critical of this administration's policies."….
Facebook has not responded to a request for comment about whether it has, or plans to, comply with the search warrants.
The American Civil Liberties Union, representing the three Facebook users, filed a motion to quash the warrants Thursday.
"What is particularly chilling about these warrants is that anti-administration political activists are going to have their political associations and views scrutinized by the very administration they are protesting," said ACLU attorney Scott Michelman.
Facebook was initially served the warrants in February 2017 along with a gag order which barred the social media company from alerting the three users that the government was seeking their private information, Michelman said. However, Michelman says that government attorneys dropped the gag order in mid-September and agreed that Facebook could expose the existence of these warrants, which has prompted the latest court filings. Michelman, however, says all court filings associated with the search warrant, and any response from Facebook, remain under seal.
The Justice Department is not commenting on these search warrants, but government attorneys have issued a similar search warrant to the web provider DreamHost seeking wide-ranging information about visitors to the website disruptj20.org, which provided a forum for anti-Trump protestors. In that case, DOJ modified its initial search warrant seeking millions of IP address for the visitors who merely clicked on the disruptj20.org website. But DC Superior Court Judge Robert Morin largely granted prosecutors' request to collect a vast set of records from the company, which will include emails of the users who signed up for an account associated with the website, and membership lists……
American Civil Liberties Union DC, media release, 28 September 2017:
Overbroad Search Warrant Implicates Private Pages of Two Local Activists and First Amendment Rights of Thousands of Facebook Users
WASHINGTON – The American Civil Liberties Union of the District of Columbia (ACLU-DC) went to court today to block the enforcement of search warrants targeting three Facebook accounts as part of the government’s investigation and prosecution of activists arrested on Inauguration Day 2017 in Washington D.C.
Two of the warrants would require Facebook to disclose to the government all information from the personal Facebook profiles of local DisruptJ20 activists Lacy MacAuley and Legba Carrefour from November 1, 2016 through February 9, 2017. Although the warrants claim to seek only evidence in support of the government’s prosecutions of January 20 demonstrations, they demand—among other things—all private messages, friend lists, status updates, comments, photos, video, and other private information solely intended for the users’ Facebook friends and family, even if they have nothing to do with Inauguration Day. The warrants also seek information about actions taken on Facebook, including all searches performed by the users, groups or networks joined, and all “data and information that has been deleted by the user.”
The third search warrant was issued for the “DisruptJ20” Facebook page (now called “Resist This”), administered and moderated by Emmelia Talarico. Although the page is public, the warrant would require the disclosure of non-public lists of people who planned to attend political organizing events and even the names of people who simply liked, followed, reacted to, commented on, or otherwise engaged with the content on the Facebook page. During the three-month span the search warrant covers, approximately 6,000 Facebook users liked the page.
The ACLU-DC filed a motion to intervene on behalf of the Facebook users whose accounts are targeted, and a motion to quash or modify the search warrants, arguing that the warrants are overbroad under the Fourth Amendment (which protects personal privacy) and are particularly problematic because the lawful political associations and activities of the users and thousands of third parties will be revealed. The ACLU filing asks the court either to void the warrants outright or to appoint a “special master” who is not part of the prosecutor’s office, to review the Facebook information before providing to the prosecutor only the material—if there is any—relevant to their criminal prosecutions.
“Opening up the entire contents of a personal Facebook page for review by the government is a gross invasion of privacy,” said Scott Michelman, Senior Staff Attorney, ACLU-DC. “The primary purpose of the Fourth Amendment was to prevent this type of exploratory rummaging through a person’s private information. Moreover, when law enforcement officers can comb through records concerning political organizing in opposition to the very administration for which those officers work, the result is the chilling of First Amendment-protected political activity.”
None of the ACLU-DC’s clients in today’s filing has been charged by the U.S. Attorney with any Inauguration Day-related crimes.
The public first learned of this case when Facebook revealed it had received the warrants and challenged a gag order attached to the warrants that prevented the company from notifying its customers that their information was sought by federal law enforcement. Public interest groups including the ACLU, ACLU-DC, Electronic Frontier Foundation, and Public Citizen, as well as internet companies including Google, Apple, and Microsoft, filed friend-of-the-court briefs arguing that the gag order should be lifted so the Facebook users could challenge the constitutionality of the search warrants under the First and Fourth Amendments. On the eve of the hearing on the gag order before the D.C. Court of Appeals, the government abruptly withdrew the order. Facebook then notified MacAuley, Carrefour, and Talarico of the warrants and the threats to their privacy.
“My Facebook page contains the most private aspects of my life—and also a frightening amount of information on the people in my life. There are intimate details of my love life, family, and things the federal government just doesn’t need to see,” said MacAuley, one of the ACLU-DC clients challenging the enforcement of the warrants. “Jeff Sessions doesn’t need to see my family photos.”
"This is part of a pattern of prosecutorial overreach in the repression of Inauguration Day protestors," said Carrefour. "This warrant is more than just a violation of privacy. It is a direct attack on D.C.’s grassroots organizing community," said Talarico. "In a city rife with inequities and injustices, the deck is already stacked against us. This overreaching warrant would strike a devastating blow to organizers working every day to make this city a better place."
This is second known attempt by the government to conduct unlawful dragnet searches of the internet and social media in search of evidence against activists arrested on Inauguration Day. In a similar case of government overreach, the government had issued a warrant to website hosting provider Dreamhost for the IP addresses of the 1.3 million people who ever visited the DisruptJ20.org website. Dreamhost, supported by several amici and intervenors, challenged the scope of the warrant and went public with the government’s overbroad request. Amidst public outcry, the government asked the D.C. Superior Court to narrow the time frame of the warrant and eliminate the request for IP addresses. The court agreed and went further by demanding strict safeguards for privacy before the warrant may be executed. The government is now litigating the scope of these additional protections.
Today’s motions to intervene and to quash were filed in D.C. Superior Court. The case is formally titled In the Matter of the Search of Information Associated with Facebook Accounts disruptj20, lacymacauley, and legba.carrefour That Is Stored at Premises Controlled by Facebook, Inc.
BACKGROUND
On the
morning of January 20th, the day Donald Trump was inaugurated, in Washington,
D.C., a large group of anti-Trump protesters, dressed in black, roamed through
the city for close to an hour. Some chanted, some dragged newspaper boxes into
the street, and some smashed the windows of various stores. In response, the
police arrested more than two hundred people, setting in motion a complex legal
saga that, months later, is far from over.
On
Wednesday, the American Civil Liberties Union of the District of Columbia filed
a federal lawsuit accusing the police of violating the rights of several people
by using pepper spray and explosive devices without warning or justification;
by making a mass arrest without differentiating between those who had broken
laws and those who hadn’t; and by holding detainees for hours without food,
water, or access to toilets, and subjecting some to “humiliating and
unjustified” invasive searches.
The
four plaintiffs in the A.C.L.U.’s lawsuit include Shay Horse, a
twenty-three-year-old whose Twitter account identifies him as a photojournalist
and “scrumptious/rambunctious anarchist.” According to the lawsuit, Horse broke
no laws on the day of the protest but was doused with pepper spray, trapped
between police lines for several hours, and then arrested and subjected to a
rectal probe. In February, prosecutors dropped all charges against him. The
other plaintiffs are Milo Gonzalez, a protester who, the lawsuit says, was also
subjected to a rectal search after his arrest and was denied access to a
bathroom for nine or ten hours; Elizabeth Lagesse, who, according to the suit,
did not break any laws before being arrested but was handcuffed so tightly her
wrists bled; and a lawyer named Judah Ariel, who said that he was among a group
of people on a sidewalk who were pepper-sprayed without cause but not taken
into custody…………
While
it seemed clear on the day of the protest that the vandalism and property
damage were committed by a small number of people, a superseding indictment
handed down in late April charged two hundred and twelve people with rioting,
inciting a riot, and engaging in a conspiracy to “damage, destroy, or deface
property.” Because participants in a conspiracy can be held responsible for an
offense committed by a co-conspirator, the defendants were all charged with
breaking the windows of a Bank of America branch, a McDonald’s restaurant, a
café, and two separate Starbucks stores. All of them faced the possibility of
lengthy prison sentences.
According
to defense lawyers, there appears to be no modern-day precedent for charging
everyone arrested during a particular protest with conspiracy, and, in May,
thirty of the accused filed a motion saying that those charges lacked merit and
asking that the superseding indictment be dismissed. Lawyers from the
Georgetown Criminal Justice Clinic, white-shoe firms like Arnold & Porter
Kaye Scholer, and D.C.’s Public Defender Service joined in the motion, which
argued that the indictment had attributed crimes “collectively and
indiscriminately” to defendants without offering evidence of individual
culpability.
Some
of the defendants have said that they believe they are being targeted for their
perceived political identity. Calls for an “anti-capitalist anti-fascist bloc”
on Inauguration Day had begun circulating soon after the election in November.
Social-media messages included a photograph of a group of black-clad figures
brandishing flags and what appear to be flares along with the hashtag
#disruptJ20 and the words “wear black.” A communiqué on the Web site CrimethInc
read, “If Trump is to be inaugurated at all, let it happen behind closed doors,
showing the true face of the security state Trump will preside over. It
must be made clear to the whole world that the vast majority of people in the
United States do not support his presidency or consent to his rule. . . . We must
take to the streets and protest, blockade, disrupt, intervene, sit in, walk
out, rise up, and make more noise and good trouble than the establishment can
bear.”
The
authorities seemed aware of the political leanings associated with the protest.
Charging documents said that police officers had been “monitoring a planned
assembly of individuals that were known to be associated with an anarchist
group” and that intelligence-division officers knew that they would be
gathering “with the express intent to disrupt Inauguration-related activities.”
Prosecutors
in D.C. now face a potentially daunting number of cases, and whether they will
be able to come up with individual evidence for each defendant’s case remains
to be seen. So far, according to court documents, they have looked at
photographs taken by police officers, reviewed video footage, and obtained a
judge’s permission to search more than a hundred cell phones seized from those
who were arrested. In March, they obtained a warrant to search the home of a
man described as a protest organizer and to take computers, cell phones,
tablets, and any material documenting the planning of a “riot or ‘Black Bloc’
march” or the planned destruction of property.
