UPDATE: Facebook users who are members of the Bellingham #NoDAPL coalition page need no longer worry about law enforcement examining their accounts. On March 13, the Whatcom County prosecutor’s office in Washington state withdrew a search warrant that sought data about members of the coalition and other users who had interacted with them last month.
The American Civil Liberties Union, which represented the individual who created the coalition’s Facebook page, announced that the warrant had been withdrawn. Prosecutor David McEachran didn’t respond to HuffPost’s inquiries.
An investigation into a traffic pileup at a protest last month in Washington state has led to a fight over a search warrant that targets the private Facebook accounts of Dakota Access Pipeline critics.
Attempts by Whatcom County officials to retrieve private messages, log-in history and other account information for members of the Bellingham #NoDAPL Coalition have opened up the court battle.
The American Civil Liberties Union of Washington is trying to quash the warrant on behalf of the Facebook users. The warrant is “an overbroad and unconstitutional request for private data,” according to an ACLU motion filed March 8 in Washington state Superior Court. Providing authorities with the requested data violates First Amendment freedoms of speech and association and Fourth Amendment protections against unreasonable search, the ACLU motion said.
If upheld after a March 14 hearing, the search warrant would affect a wide range of people who posted to the #NoDAPL coalition page from Feb. 4 to 15 or simply interacted on Facebook with people who “liked” the group during that period. The number of users potentially affected is easily in the hundreds.
Boston College law professor Robert Bloom told The Huffington Post that the search warrant “looks a little troubling.” The request from Whatcom County officials “needs to be specific so police can’t go rummaging around, so to speak,” he added.
The dispute over the search warrant originated with an investigation by the Whatcom County prosecutor and sheriff’s office into a protest against the Dakota Access Pipeline that blocked part of an interstate highway in Bellingham in February.
About 100 demonstrators obstructed several lanes for more than an hour, causing a 4-mile traffic jam on Feb. 11, according to The Bellingham Herald. They were protesting against the Trump administration’s decision to allow construction of the Dakota Access Pipeline in North Dakota despite arguments from the Standing Rock Sioux that the project breaks a treaty agreement from 1851 and was not properly reviewed for environmental hazards.
Authorities in Washington contend that demonstrators are responsible for a five-car pileup during the protest. No one has been arrested, but the search warrant says that authorities are weighing a possible charge of reckless endangerment, a misdemeanor.
This search warrant was issued Feb. 16 by a state judge. Facebook subsequently informed Neah Monteiro, the creator of the regional #NoDAPL coalition’s Facebook page, that it had received a warrant relating to her group.
Monteiro then turned to the ACLU office in Seattle for legal advice
“It felt really invasive,” Monteiro, 32, of Bellingham, said by phone. “I’m glad I have this opportunity to stand up for my rights.”
Facebook declined to comment, but ACLU lawyer Brett Kaufman said the giant social network agreed not to comply with the search warrant before the court hearing Tuesday.
Exactly how the highway blockade correlates to the Facebook activity is unclear.
An affidavit that would explain why authorities have probable cause to search the Facebook users has not been made public.
“This is in the middle of the investigation right now,” Whatcom County Prosecutor David McEachran told HuffPost. “When we reach a point where we decide whether to charge anyone, then I can answer more questions, but I think I’ve told you about all I can say.”
The sheriff’s office did not respond to HuffPost’s request for an interview.
Police often open up the social media history of suspects during criminal investigations, but Bloom said this appeared to more directly affect political activism.
It’s unclear how often such warrants are obtained and whom they target, experts said, because they are typically accompanied by a gag order preventing public discussion.
Facebook, however, said that it had received more than 25,000 law enforcement requests for users’ data from January to June in 2016 alone. In more than 80 percent of cases, law enforcement accessed at least some data.
The question for courts reviewing search warrant applications is whether investigators have a narrow focus, according to Andrew Ferguson, a law professor at the University of the District of Columbia.
“Is that an investigatory shortcut to just identify people [involved in political protests], or do they think there would be a reveal about criminal behavior?” Ferguson said.
CORRECTION: An earlier version of this article misidentified Neah Monteiro. She created a Facebook page for the Bellingham #NoDAPL Coalition, but she was not a founder of the coalition.