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A brewing fight between the Justice Department (DOJ) and a technology firm over visitors to an anti-Trump website is stirring alarm among privacy and civil liberties advocates.
DreamHost, a Los Angeles-based web hosting provider, is challenging a federal request for records, files and other information on a website that was used to organize protests against President Trump on Inauguration Day.
While prosecutors are seeking the information in connection with inauguration riots, privacy advocates describe the request as overly broad and one that, if honored, could have a chilling effect on free speech.
“This to me on its face looks like a fishing expedition,” said Nuala O’Connor, president and CEO of the Center for Democracy and Technology. “It cannot be in this democracy that simply going to a website is [indicative] of criminal or suspicious activity.”
DreamHost says that complying with the request would result in the company turning over roughly 1.3 million visitor IP addresses to the website disruptj20.org.
That data could reveal when people visited the site, what webpages they looked at and even what operating systems they were using. DreamHost is also being asked to hand over email content related to the site, which could identify people who corresponded with the website’s owners.
Jennifer Daskal, an American University law professor, said that the lack of information about the effort makes it impossible to known the full scope of what the Justice Department is doing. However, she agreed that the request for data appears questionable.
“It seems quite concerning and extremely overbroad — raising both First and Fourth amendment concerns,” Daskal said. “It's targeting anyone who visited a site used to organize a protest, in a way that seriously risks chilling speech and associational rights.” She noted that searches are supposed to be “particularized based on individualized suspicion.”
“Presumably what they’re trying to do is build links and associations … and use that as a basis for a broader investigation,” Daskal said.
In late February, more than 200 people connected to Inauguration Day protests were indicted on felony rioting charges.
The Justice Department first subpoenaed DreamHost on Jan. 27 for records related to the website’s registrant, which the company provided. The government also ordered DreamHost to preserve records related to the webpage and its visitors over a period of about a week after the inauguration protests took place.
Then on July 12, according to a search warrant issued by the Superior Court of the District of Columbia and publicized by DreamHost, authorities said they had found probable cause to believe that DreamHost has in its possession “property, namely stored electronic communications including but not limited to digital files, records, messages, and photographs” that could amount to evidence of violations of D.C. law prohibiting rioting. The affidavit underlining the search warrant is not public.
As such, DreamHost was ordered to produce all records and information — including files, databases and database records — related to the website account and its owner.
The company’s lawyers tried to quash the warrant. They argued it was overbroad in its request, carries both First and Fourth Amendment concerns and would violate the Privacy Protection Act.
“There is no limitation on the government’s request for information,” said Raymond Aghaian, a lawyer who is representing DreamHost. “They essentially want every piece of information they can get, including the type of operation systems users were running on their system at the time they visited the website. This is a complete overreach.”
The Justice Department stood its ground. At the end of July, the U.S. attorney’s office in D.C. filed a motion for an order to compel DreamHost to produce the records. The government argues that the company has no legal basis for failing to produce materials in response to the search warrant.
“There should be no dispute that the Court’s search warrant was properly issued and that DreamHost must comply with the Court’s warrant,” the motion states.
“DreamHost has raised a concern that the Court’s search warrant is ‘overbroad’ and may result in an ‘overseizure,’ ” it states. “This is simply not a sufficient basis for DreamHost to refuse to comply with the warrant. The Court has already imposed limitations on the materials that DreamHost is required to produce and on the materials that the government may seize.”
Advocacy groups including the American Civil Liberties Union and the Computer and Communications Industry Association (CCIA) have backed DreamHost in its fight against the warrant.
“The U.S. government itself has criticized countries that target political dissent with criminal process,” Ed Black, president and CEO of the CCIA, said in a statement late Tuesday. “We would urge DOJ to consider the consequences of such requests both in terms of emboldening countries like China and in the message this sends to democratic allies.”
The issue has also begun to generate scrutiny of Attorney General Jeff Sessions
On Wednesday, Rep. Ted Deutch (D-Fla.) called on Sessions to drop the request, as the attorney general prepared for a visit to South Florida.
“When the government attempts to seize personal information, including email and physical addresses, for more than a million Americans who visited a website, it shows that the president is willing to use his Justice Department and the machinery of government to go after his political opponents,” Deutch said.
Some voices on the right have also questioned the DOJ’s actions.
Judge Andrew Napolitano said Tuesday on Fox News that there are “very serious constitutional problems” with the DOJ’s request.
He said the department probably went to a superior court for the warrant request, rather than a federal judge, because “none of them would sign it.”
“This search warrant that the government got has a lot of us scratching our heads. There is not criminal investigation, there is no evidence that the ID of these people is going to produce evidence of a crime, and these things are absolutely required before a search warrant can be granted.”
“Could you imagine if [former attorney general] Eric Holder did this to find out who the protesters against Barack Obama were?” he added later. “I dare say there would be a different reaction than what we are seeing today. … There should be an uproar over this.”
The case is not the first instance on the government asking tech companies for details on Trump dissidents. Earlier this year, the Department of Homeland Security (DHS) briefly tried to get Twitter to reveal information to identify an account holder whose messages on the social media platform had been critical of Trump. The DHS ultimately withdrew the request.
A public hearing on the DreamHost matter had been scheduled in D.C. court for Friday. However, the U.S. attorney’s office in D.C. said Tuesday that hearing would be rescheduled. It is unclear when it will take place.
The Justice Department has not commented on the issue.
For their part, lawyers for DreamHost plan to hone in on the potential implications of such a request being satisfied, such as spurring self-censorship.
“It’s going to chill speech,” said Chris Ghazarian, the company’s general counsel. “Potentially, people will stop visiting these types of websites at the risk of their information being turned over to DOJ.”
“Companies should not be worried about untargeted mass collections of user data that we store on our servers under warrants like this,” Ghazarian said.