Cops love vaguely-worded search warrants with a wide-open net. Why they love them is no secret. These kinds of search warrants are fishing expeditions. These search warrants are massive gill nets tossed into the ocean of humanity in search of a crime to prosecute. They don’t even care which crime. Any crime will do.
That’s the type of broad warrant the US Department of Justice handed Dreamhost, a well-known web hosting company, with respect to the leftist anti-Trump website disruptj20.org, hosted by the company.
Their latest demand seeks all contact information, email content, images and the IP address of every single person who ever visited the website. In short, they want to investigate everyone linked to the website, no matter the reason.
Dreamhost, to their credit, refused to comply, which sent the US DOJ running to the nearest courthouse to find a judge willing to order Dreamhost’s compliance.
Their plan backfired.
Chief Judge Robert E. Morin, in his ruling on Special Proceedings No 17 CSW 3438 (pdf), refused to grant their wish.
As previously observed, courts around the country have acknowledged that, in searches for electronically stored information, evidence of criminal activity will likely be intermingled with communications and other records not within the scope of the search warrant.
Because of the potential breadth of the government’s review in this case, the Warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the Court has previously stated, while the government has the right to execute its Warrant, it does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. The protocols described herein aim to do just that.
Judge Morin also ordered the US DOJ to narrow the scope of its warrant.
To ensure that the identities of innocent persons are not revealed, the government must adhere to the following safeguards: (1) file a report with the Court explaining the government’s
(1) file a report with the Court explaining the government’s intended search protocol and review procedures designed to minimize access to data and information not covered by the Warrant;
(2) if the Court approves the report, the government may only conduct its search on a redacted data set that omits non-subscriber identifying information;
(3) upon completion of review, the government must file an itemized list of the materials it seeks to retain with the Court, and explain how such materials are relevant to its investigation and its basis for removing any redactions; and
(4) only upon a finding by the Court that the requested information is evidence of criminal activity, as described in the Warrant for which this Court has found probable cause, may the government obtain any un-redacted information, such as the identity of the user.
Despite those restrictions, Judge Morin did give the US DOJ a lot of what they asked for, albeit with some notable exceptions.
More interesting to freedom and privacy advocates is Justice Moran’s insistence the Court would oversee the entire process to ensure the government does not overstep its bounds.
The government shall not begin its review of the redacted materials provided by DreamHost until the Court has approved the government’s proposal and authorized the government to begin its Detailed Review of the redacted materials. The government must file a report with the Court, ex parte and under seal, explaining:
I. the intended search protocols, such as applying narrowly-defined search terms describing phrases and words designed to minimize the review of data and information not within the scope of the Warrant;
II. the process the government will use to conduct its review of the responsive data and information;
III. to the extent not already addressed, the procedures the government will implement to minimize its review of data and information not within the scope of the Warrant;
IV. the government’s plan for permanently deleting from its possession all data and information not within the scope of the Warrant;
V. the individuals who will be involved in or are authorized to participate in the review of the data and information; and
VI. the timeline for completing the Proposed Search Protocols and Detailed Review.
6. Approved Search Protocols and Detailed Review
a. Upon approval by the Court, the government may apply the authorized Search Protocols against the universe of the redacted data set provided by DreamHost.
This ruling is a victory for freedom of speech and individual privacy. One’s political opinions, whether private or public, should never allow the government of the day to attack and prosecute you.
And that is precisely the intent of the government in this case. They wanted to investigate and possibly prosecute anyone even remotely connected to the anti-Trump website.
As I’ve said before (along with countless others) freedom of speech is the gift you must give your enemy if you expect to keep it for yourself.
If only all sides of the political debate comprehended that simple, indisputable fact… we’d have far fewer university campuses set aflame and any speaker, regardless of political viewpoint, would be free to share their views with students.
Alas, that is not the world we live in. At least not yet.
Perhaps this ruling will open the eyes of the social justice warriors so intent on silencing those whose opinions they dislike. Stepping out of their echo chamber may be uncomfortable, but they may learn some valuable lessons.
