At the intersection where protections against unreasonable search and seizure meet the rights to free speech and association, there's now a web hosting company called DreamHost.
The California-based company is resisting a Department of Justice warrant that demands it hand over all files related to DisruptJ20.org, a website created by one of its customers to plan and announce actions intended to disrupt President Trump's inauguration.
After Inauguration Day protests in Washington, D.C. turned violent, 230 people were arrested and charged with felony rioting.
In gathering evidence for the nearly 200 still-open cases in D.C. court, the Justice Department issued a warrant that DreamHost says is so broad it would require handing over the logs of 1.3 million visits to the website.
The company called the warrant "a highly untargeted demand that chills free association and the right of free speech afforded by the Constitution. ... This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority."
A week after the inauguration, DreamHost says the Justice Department asked it for records relating to the person who had registered the site - such as the person's physical and email addresses - and it complied.
But in July, the government issued a new warrant that asked for additional materials: "all files, databases, and database records" related to DisruptJ20's website, as prosecutors moved to seize all information "involving the individuals who participated, planed [sic], organized, or incited the January 20 riot."
DreamHost resisted providing the newly-requested information, citing concerns that the warrant was "overbroad" and may result in "overseizure."
But the Justice Department said DreamHost must provide the information regardless.
"DreamHost's opinion of the breadth of the warrant does not provide it with a basis for refusing to comply with the Court's search warrant and begin an immediate production," U.S. Attorney Channing Phillips wrote in a motion to the D.C. Superior Court, which will soon hold a hearing regarding the matter.
In its filing with the court, DreamHost says the warrant requires the company "to turn over every piece of information it has about every visitor to a website expressing political views concerning the current administration":
"This information includes the IP address for the visitor, the website pages viewed by the visitor, even a detailed description of software running in the visitor's computer. 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. The Search Warrant also includes a demand that DreamHost disclose the content of all e-mail inquiries and comments submitted from numerous private e-mail accounts and prompted by the website, all through a single sweeping warrant."
Is the government really asking for all those visitor logs?
"Yes, they definitely are," says Electronic Frontier Foundation senior staff attorney Mark Rumold. EFF advocates for internet privacy and free speech, and has advised DreamHost in its case.
Rumold told NPR that when DreamHost first approached EFF about responding to the warrant, he guessed "that DOJ would realize how broad the warrant was, and say, oh you know, in fact we're not actually looking for IP logs for everyone who's ever visited the site," and would narrow its request accordingly.
But instead, the government insisted on DreamHost's compliance with the warrant as written.
"It always raises red flags when the government is trying to pry into the organization or the association of its political opponents," Rumold says. "That said, the DOJ has apparently demonstrated to a judge that there is probable cause to believe that something on this site is evidence of a crime." But, he says, the logs of everyone who ever visited the site, along with when and where they viewed it — "there's no way that that's all evidence of a crime."
"It's always troubling when the government seizes far more information than it could ever use," he says. "That's just generally a problem regardless of the investigation. I think what's particularly unique about this case is that the crime and the topic that is being investigated is a group of people who are politically opposed to the president."
For administrators of websites that involve political dissent or discussion, Rumold says best practices would dictate not keeping logs of visitor data.
And Legba Carrefour, who was one of the organizers for DisruptJ20, says the site's administrators didn't keep this data for DisruptJ20.org—DreamHost did.
"We would not keep records on who visits our website," Carrefour told NPR. "We don't want to know, and we don't care. But also I'm sure like half of those are probably cops," checking to see what the group had planned for the inauguration.
Carrefour said DisruptJ20 used what's called "the open organizing model": Instead of making plans in secret, they posted everything they intended to do right on their website. They held biweekly meetings to audiences of 200 or 300 people at a time, in places like church basements, which he assumes police attended. "We feel like open organizing is a better way to recruit people, and also sort of a more honest, forthright, and successful way of organizing mass mobilizations."
Carrefour said he was "surprised and impressed" that DreamHost is "going to the lengths they are to resist" the government's request.
DreamHost says its stance isn't a political one.
"This has become a political issue for many - but our interest in this case truly isn't that specific," DreamHost spokesman Brett Dunst wrote in an email. "We're completely content-agnostic in this. For DreamHost this is simply an over-broad request for records, and we feel obligated to contest it."
He said DreamHost keeps server logs in order to manage the sites of its 400,000-plus customers and identify issues like Distributed Denial of Service attacks.
"We only retain those logs for a very brief time," Dunst wrote. "The DOJ served us with a preservation notice immediately after the inauguration, which is why we still have access to that data in this case."
The Justice Department's demand for the logs has troubling implications, says Georgetown University law professor Paul Ohm, who formerly worked as an attorney in the Department of Justice's Computer Crime and Intellectual Property Section.
"It's disturbing to me," Ohm says "that with a single warrant, signed by a single judge — especially given the speech implications of this particular website — it's disturbing to me that that could be the single key that unlocks the political and speech habits of I-don't-know-how-many-people."
He estimated that 1.3 million visitor logs could represent thousands of people, or hundreds of thousands. And he said that the framers of the U.S. Constitution specifically wanted to avoid practices like British general warrants, which gave sweeping access to search any location with a single piece of paper.
"This smells like a general warrant," says Ohm. "I think the framers would recognize a single request to get the reading habits of tens of thousands of people to essentially be the closest thing we have in modern times to a general warrant."
Ohm says courts have often considered how rights against illegal search and seizure begin to overlap with free speech rights – and "this case is tailor-made to sit at that intersection."
"This site is about speech. It's about listening, which is also kind of a First Amendment right," he says. "It's about assembly. It's about petitioning the government. And so I think it's not going to be hard for the lawyers in this case to say this isn't just about policing and the limits of policing. This is about disruption of speech. And so for all those reasons, it really raises the stakes on this particular litigation and it means it's going to get a close look from the courts."
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