by Paul Alan Levy
D.C. Superior Court Chief Judge Robert Morin has issued his ruling on the pending objections to search warrants served on Facebook by Federal prosecutors seeking the entire contents of the Facebook accounts for the DisruptJ20 Facebook page as well as the personal accounts of two individuals, Lacey MacAuley and Legba Carrefour, who served as press contacts for the DisruptJ20 organizing effort. His decision represents something of a mixture of good and bad. The judge insisted on strong protections for the identities of the anonymous third-parties who communicated with the page and the accounts, the client group whom I have been representing as a Public Citizen litigator, and good protections for the owner of the DisruptJ20 page. But he accorded fewer protections to the individual account holders – ironically, the very people who are likely to be the most in need of privacy protections. And the judge closed with a disappointing ruling on intervention, one which could make it harder for future litigants to achieve even the degree of free speech protections that we secured in this case.
Background
The issue, as discussed in a previous blog post, arises out of search warrants issued in connection with the prosecution of some 200 odd protestors for alleged participation in a riot that broke out during a march by black-clad “antifa” protestors on January 20, 2017, the most forceful of several groups of protests over the course of that weekend directed to the inauguration of Donald Trump. The meat of this prosecution pertains to the breaking of several windows and a discrete number of physical encounters between police officers and protestors, in which far fewer than 200 individual defendants were involved. But according to the search warrant affidavit issued in support of a similar warrant to DreamHost, which Judge Morin addressed in a series of rulings in August, September and October, there is reason to believe that the property destruction committed by the “black bloc” protesters was premeditated. ( The affidavits filed in support of the search warrants to Facebook, however, have been kept confidential.)
But there is a larger context. Given the strict limitations that the Supreme Court had placed on prosecutions for incitement and conspiracy in the realm of political dissent, the prosecution is casting a very wide net, using search warrants both to identify those directly responsible for the violent acts and to build the case for its conspiracy claims – the only way that it can hope to pursue convictions against more than the small number of individuals who broke windows or assaulted police officers. The overbreadth of the prosecutors' charging decisions has exacerbated the conflict between the government's demand for access to data that might aid its prosecution and the privacy and free speech rights of those whose personal and political expression is swept up within the material subject to search under the warrants. As Chip Gibbons points out in an excellent Nation article, given the notorious hostility of our new president to dissent and to judicial constraint, and his documented desire to direct prosecutors to go after his political adversaries, this case tests the willingness of judges to impose constraints on the use of law enforcement resources to clamp down on dissent.
The Good
Judge Morin’s opinion was provided to counsel on the evening of November 9, just before the beginning of the Veteran’s Day holiday, and is being uploaded to the Superior Court’s docket this morning. He begins by reciting the history of the proceeding — the issuance of the warrants, the imposition of a gag order barring Facebook from disclosing the warrants to the three account holders, and the prosecutors’ “voluntary” acceptance of having the gag lifted on the eve of oral argument of the appeals from the gag order. Taking advantage of the ensuing notice, the owners of the three accounts moved for leave to intervene and simultaneous moved to quash or at least narrow the warrants. We also sought leave to intervene, filing a brief explaining why anonymous third-party Facebook users who had “liked” or “friended” either the account pages or specific posts or comments on those pages should not be identified. Judge Morin held oral argument, at which questions were raised about the extent to which some of the account information has actually been kept private from the general public; we filed a supplemental brief addressing those factual issues as well as addressing the issue of intervention as greater length. There were supplemental filings from Facebook and the account holders as well.
Without first addressing the intervention issue, Judge Morin dove directly into the merits. Perhaps impelled by the ACLU’s excellent briefing of the issue, his opinion contains an extended discussion of the two-step process, and of the importance of adapting that process to constrain searches that might otherwise intrude too deeply in protected political expression and create a chilling effect on future online political expression. Even more clearly than he did in his DreamHost rulings, Judge Morin states squarely that the government has never shown probable cause to believe that communications of anonymous third parties with the accounts themselves contain evidence of criminal activity charged in the indictment. Consequently, the third parties’ identifying information was entitled to be protected from disclosure pursuant to the order enforcing the search warrant. Facebook had told the court that the redactions would have to be done manually and that this process could take three weeks; hence, disclosure of the reacted files would take three weeks. Judge Morin was willing to accept the delay even though the prosecution, at oral argument, stressed its desire to get disclosure quickly because the trials are to begin in November.
This part of the opinion is the best part, and I expect we will be citing it in many later cases. As a result, the government is not going to be allowed to obtain identifying information about third parties who interacted lawfully with the relevant pages unless the government can make a later showing, satisfactory to Judge Morin, that there is need to identify a particular third party.
With respect to the DisruptJ20 Facebook page, Judge Morin’s approach was much like his approach to the DreamHost search warrant seeking information about the DisruptJ20 web site: in addition to protecting the anonymous users who interacted with that page, Judge Morin is requiring the government to design a search protocol, using keywords, to identify fragments of the page that might be relevant to the prosecution; the government many then examine the fragments identified by that process, and if it concludes that specific material is needed for the prosecution, it may retain copies assuming that Judge Morin is persuaded by the government’s contentions about relevance.
The Not So Good
Unfortunately, although Judge Morin was willing to protect the identities of the third parties who interacted with the three web pages, as in his final order with respect to the DreamHost warrant, his ruling does not protect the third parties’ communications from disclosure pursuant to the warrant. Thus although identifying information is to be redacted from, for example, the third parties’ private Facebook messages to the account holders, and from any comments they might have added to posts of the account holders, the texts of those communications are themselves to be made available pursuant to the warrant (if only by being subject to search by keyword). This aspect of the ruling seems contrary to the finding that the Government had not shown probable cause to search communications from the third-parties; that is, Judge Morin indicated, so far as the record shows the third parties interacted lawfully with the three Facebook pages.
And there is good reason for the third parties to want to hide their comments from prying police eyes. As one of our Doe clients explained in an affidavit, this Doe had made some comments on Legba Carrefour’s timeline, expressing a disagreement with something he had said. The Doe’s affidavit explained the importance of dissenters being able to have political debates and discussions, even sometimes expressing themselves in strong terms, without the police having access to those discussion, which could aid them in employing divide and conquer techniques to interfere with dissent. Given the lack of probable cause to believe that third parties’ communications contained evidence of crimes, there is no sound basis for allowing police and prosecutors to examine those communications.
Moreover, Judge Morin did not protect the individual accounts of Lacey MacAuley and Legba Carrefour as completely as he protected the DisruptJ20 page. To be sure, for these pages the judge protected Public Citizen’s client group, the anonymous Facebook users who became Facebook friends of these two, or who commented on their posts, or who either liked (or possibly shared) shared posts or comments on their pages. So far, so good.
But he was unwilling to protect the two account holders from direct visual inspection of their entire timelines, and of messages sent to and from the account, by requiring the use of a search protocol involving keywords. Rather, Judge Morin said, to the extent that there is private and highly personal information to be found in the individual Facebook accounts, which would be exposed to the police and prosecutors, that is MacAuley’s and Carrefour’s fault for “commingling” such material with other material which, according to the government’s showing, had some probability of including evidence of criminal conduct on January 20. After the visual inspection, though, the opinion indicates that the government will still need to make a showing of relevance to the court before it can retain materials for use in the riot prosecutions.
It is hard to understand, first, why it is that the “commingling” argument is any more valid with respect to the Facebook pages of individual account holders than with respect to the DisruptJ20 Facebook page. Even assuming that there is sound reason to believe that some material on any of these pages relates to the riot, the DisruptJ20 page as well as the individual pages will have a great deal of political expression unrelated to the riot. A colloquy between Judge Morin and the Assistant U.S. Attorney during the hearing suggested that photographs of riot activity may have appeared on the pages at one time, and that the government hopes its search warrant can provide access to photos that would help identify participants, and lead to information about the photographers who can be subpoenaed to authenticate them. Given the continued secrecy of the probable cause affidavits, we cannot be sure what other bases the government may have given for the search of these three accounts.
Moreover, the word “commingling” is odd — even if there are some posts, private messages or photographs with some contents bearing on the riot, that does not mean that the lawful and fully protected expression about peaceful protest, not to speak of details about the account holders’ personal lives, medical history, and sexual activity, would as a general matter be contained in the same posts and messages. The government could be given leave to examine fragments that respond to a keyword search, and to examine those fragments even if they also contain personal matters or protected expression commingled in the same fragment, without give access to the entire account.
Additionally, although protected political expression is likely contained (“commingled”) in all three accounts, the privacy needs of the individual account holders are much more likely to be seriously compromised than the needs of the owner of DisruptJ20's Facebook page. I should think this need especially great for MacAuley in particular, given the serious sexual abuse to which she has been subjected, whose details might well appear within private parts of her Facebook account. Given MacAuley’s continued role in DC protest activity, and the likely hostility of DC’s political police intelligence unit and of Trump Administration prosecutors to MacAuley, giving those law enforcement officials even temporary access to her Facebook page is especially unfortunate. Once they see such material, they won’t put it out of their minds, even if they cannot retain copies. And they can use it against her without ever revealing in violation of Judge Morin’s orders what they have learned. The ACLU argued forcefully that merely allowing access to these materials is a form of "seizure," even if the theoretical framework of the two-step process declares it otherwise.
The Ugly
After disposing of the merits, Judge Morin turned to a discussion of the account holders’ motion for leave to intervene (he did not mention our own motion to allow the anonymous users to intervene, but I have to assume that he means to reject it as well).
Judge Morin discussed the intervention at some length (at pages 16 to 20), finding it to be a very close question. He concluded that allowing intervention was within his discretion under the rules, but ultimately concluded, as he did with respect to the Doe proposed intervenors in the DreamHost case, that intervention would be denied because, in his view, the proposed intervenors had already been allowed to present arguments and objections, and he had taken those arguments and objections into account in adopting his narrowing procedures for the enforcement of the warrant. Moreover, he was unwilling to allow the account holders to see the additional affidavits and argument that the judge was planning to receive from the government pursuant to the enhanced two-step process, so intervention would do them no good in that regard. The only remaining benefit to be obtained from intervention, he said, was the “speculative opportunity to appeal this court’s order,” but, Judge Morin said, this is “not a sufficient reason to circumvent the normal processes concerning the enforcement of search warrants.” (page 20).
Judge Morin’s ruling on intervention is highly formalistic. It is a function of his having decided to address the merits first, instead of addressing standing to contest the merits first. Indeed, Judge Morin had already allowed both the account holders, and Public Citizen’s Doe clients, to intervene as a practical matter – he is only withholding the title “intervention” from the process.
As in the DreamHost case, in this case both the account holders and the Doe intervenors were allowed to present briefs and argument and offer affidavits into the record to support their arguments. At the hearing, the account holders and the Does (as well as the subpoena recipient Facebook) were asked to supply further information to be used in formulating the order, and both the account holders and the Does provided not just argument but evidence with supplemental memoranda. And in the DreamHost case, the proposed Doe intervenors as well as the warrant recipient DreamHost were given repeated opportunities to help the court fine-tune the warrant enforcement order. The Does’ arguments persuaded Judge Morin to tighten the wording of the DreamHost order in several significant respects. Indeed, the final DreamHost order indicates, in footnote 10 on page 10 of the order, that if the prosecutors came back to the court with a request to be allowed to obtain identifying information that was initially redacted, the Does would have an opportunity to respond to that request. The same is presumably true with respect to the Facebook warrant, although the detail is not addressed in the order). This sounds to be a great deal like intervention, in all but the name.
But the name is important. To be sure, a denial of intervention is appealable. If there were an appeal of the order itself, the denial of intervention would simply be the first issue to be decided. The Does decided not to appeal the final order in the DreamHost case, and given that decision it would have made no sense to appeal the intervention decision. No decision has yet been made about whether to appeal this order. It is my impression that the individual account holders have also not decided what their next steps will be.
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