The Department of Justice has backed down from a controversial request for data from a website used to help organize protests around the inauguration of President Donald Trump that would have revealed the personal identifying information of thousands of visitors.
In a brief filed Tuesday in Superior Court of the District of Columbia, Department of Justice lawyers asked a judge to modify their original search warrant to exclude their earlier demand for server logs from web hosting company DreamHost, who provided services to their clients, disruptj20.org. That website houses information about several protests that were planned for Jan. 20.
While the original warrant ordered DreamHost to turn over “all files” related to the website, the modification seeks to exclude any visitor access and error logs to the website, as well as any unpublished media ― including both text and photos ― that may appear in draft form, but were never published.
The exclusion of visitor logs means that visitors’ IP addresses “are largely safe,” DreamHost said in a blog post Tuesday.
“We see this as a huge win for internet privacy, and we absolutely appreciate the DOJ’s willingness to look at and reconsider both the scope and the depth of their original request for records,” the DreamHost blog reads.
“In the face of growing public concern, the Trump Justice Department has backed down on its outrageously overbroad request for information on every visitor to an inaugural protest website,” said Robert Weissman, president of progressive consumer rights advocacy group Public Citizen. “If the government had prevailed in its request to enforce the original terms of the warrant, it would have significantly chilled dissent.”
Public Citizen had filed to represent a number of the people who were included in the government’s original sweeping request for data because it believes that the U.S. government has “no legal justification for seeking out the identities of people who accessed a protest website,” the group said in a statement.
The U.S. Attorney’s Office in the District of Columbia obtained a search warrant in July from a Superior Court judge that targets disruptj20.org. And last week, DreamHost detailed in a blog post that it has been working with the federal government for months over the information request, but said the order was overly broad and representative of a “strong example of investigator overreach and a clear abuse of government authority.”
Ultimately, DreamHost refused the government’s original request, which prompted the modification. DreamHost argued that the original warrant was so broad it would have forced the company to hand over 1.3 million visitor IP addresses to the website, as well as user “contact information, email content and photos of thousands of people” in an effort to determine “who simply visited the website.”
“In essence, the Search Warrant not only aims to identify the political dissidents of the current administration, but attempts to identify and understand what content each of these dissidents viewed on the website,” court documents read.
Legal experts criticized the original request as disturbing and overbroad, with one saying it appeared that the search warrant was an attempt by the Trump administration to form an “enemies list.”
And while the modification was seen as a positive step forward, legal experts, and DreamHost itself, also voiced concern about what they considered to still be an overly broad request.
“Much of the DOJ’s original demand for information is still in place, and there are still a few issues that we consider to be problematic for a number of reasons,” DreamHost wrote in their blog. “We are moving forward with a filing to address the remaining First and Fourth Amendment issues raised by this warrant, and we look forward to voicing those concerns in the hearing scheduled for Thursday.”
“Much of the narrower warrant seems to engage in a distinction of semantics,” said Ben Feuer, chairman of the California Appellate Law Group and a former clerk on the U.S. 9th Circuit Court of Appeals. “It appears to me the government says it won’t seize non-responsive data once it’s searched through it, and instead leave that data under seal with the court. But the act of searching through it constitutes a seizure, because it has to seize the data first to conduct the search. So the government’s word-parsing doesn’t really make sense to me as a constitutional matter.”
Feuer added that there’s also the practical question of how anyone could ensure that the government wouldn’t just stash all the data away in a file somewhere before it returns the unresponsive data to the court to be sealed.
“So in part, it’s hard to tell exactly what the government is now no longer requesting.” Feuer explained. “Whatever it is, the warrant should be constrained to specific evidence the government has probable cause to believe would illuminate a specific crime committed through this specific website.”
Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law, had similar concerns about the revised request.
“The request still is for those who engaged in speech and where there is not reason to believe that they committed a crime, or have evidence of a crime,” he said. “That raises serious concerns under both the First and Fifth Amendments.”
Ken White, a defense attorney at Brown, White & Osborn in Los Angeles who writes on the law-oriented blog Popehat, said that the revised request appears to show the government is “making a real effort to make this right,” but that issues remain.
“What they seem to be suggesting is that they will still ask for all the same information they were already asking for, they now say they are only going to keep it to the extent that it is direct evidence of the conduct they deem as criminal,” White said.
“So the question is how much better does that make you feel?” White said. “Do you trust that these guys really are going to look at only this stuff that actually goes to evidence of rioting and the rest is sealed? I don’t think it will satisfy anyone who was expecting the very worst.”
White went on to say that the brief appears to show government lawyers who did not fully understand the technology they were getting a search warrant for rather than a focused and malicious effort to “create an enemies list.”
In that sense, White said, “it makes me feel better, it doesn’t get me all the way to happy or comfortable, but it’s on the path to that direction.”
The U.S. Attorney’s Office in the District of Columbia, who filed Tuesday’s brief, declined to comment on the case.
A hearing for the case is set for Thursday before Chief Judge Robert E. Morin of the Superior Court of the District of Columbia.