Let’s just say, for the sake of argument, that you do not like Donald Trump. And let’s say that one day you are putzing around on the great Internet, and you come across a website that is predominantly anti-Trump, so you decide to check it out. You read an article or two, make a comment or two, perhaps respond to a few poll questions, and then you move on.
A month later, there is a knock on the door, and there stand two men in dark glasses, asking if you are _______________ (insert name)? Why are they there? What do they want? They most likely want your computers and cell phones, but they may also wish to search your home. What do they want? They want your right to freedom of speech.
Los Angeles-based tech company DreamHost set up a website, www.DisruptJ20.org, last year after the 2016 presidential election to help coordinate inauguration day protestors. Some 1.3 million people visited the site at one time or another, and now the U.S. attorney’s office in the District of Columbia has issued a search warrant for email addresses, names, photos and blog posts of the people who visited the site.
U.S. Attorney Channing Phillips justifies the warrant by saying, “That website was used in the development, planning, advertisement and organization of a violent riot that occurred in Washington, D.C. on January 20, 2017.” But the federal government has already charged more than 200 people in connection with the protests that injured six police officers and damaged store windows and at least one vehicle.
DreamHost raised concerns with Assistant U.S. Attorney John W. Borchert about the scope and constitutionality of the warrant, fearing it was overbroad and possibly in violation of the 1980 Privacy Protection Act. That was when prosecutors responded with a motion to compel the company to turn over the requested records. They also argued that the Privacy Protection Act does not preclude the government from seizing even “protected” materials with a search warrant.
Last month, DreamHost filed a reply arguing that the warrant’s breadth violates the Fourth Amendment and also raises First Amendment issues. Mark Rumold, staff attorney for the Electronic Frontier Foundation, said that no plausible explanation exists for a search warrant of such breadth, “other than to cast a digital dragnet as broadly as possible.” Even people who were nowhere near Washington on Inauguration Day who visited the website will have their data “swept into a criminal investigation,” he said.
D.C. Superior Court Judge Robert E. Morin ordered the company to comply with the warrant, but last week DreamHost filed a motion asking that the judge put his order on hold while they consider whether to appeal. Prosecutors, concerned that such a delay could hinder their cases against dozens charged in Inauguration Day riots, have asked the judge to force DreamHost to turn over the data immediately.
In a recent interview, DreamHost’s co-founder and chief executive, Dallas Kashuba said …
“This is a fundamental issue of online privacy and how the Internet works. If this goes the wrong way, it could detrimentally impact the Internet itself. If people become afraid to access websites because they may be found out, it could chill the online communication.”
I find this whole thing deeply concerning in the era of Trump and Jeff Sessions. Most everybody reading this writes for at least their own blog. Some of us also publish in other publications as well. In the course of our writing, we do research, seeking facts and opinions, and frequently our research takes us to sites that may be controversial. I may well have, at some point in time, accessed the DisruptJ20 site seeking information. Does that make me a criminal, subject to investigation by the Department of Justice? It should not.
Let us put this in perspective. It is not against the law to access an anti-Trump website. It is not against the law to write a blog or an OpEd that speaks against Donald Trump. It is not against the law to plan, organize or participate in a protest march or rally. If violence ensues at said protest, then it is against the law to throw rocks and bottles, damage property or threaten bodily harm, and anybody who engages in such behaviour should certainly be arrested. But not everybody who may have high-fived the protest, or even been on the scene, peacefully protesting is breaking the law.
I do not know how this will turn out, and if the federal government has its way, I cannot predict what damage will be done to the future of free speech, but I do see this as very concerning. As I have been saying, we need to keep our eye on the ball, lest somebody steal the ball from beneath our very noses.