- The Washington Times - Wednesday, August 23, 2017

The Justice Department has scaled back a request for information on people who visited an Inauguration Day protest website, but the web hosting company asked to turn over documents says it still has constitutional concerns and plans to fight the request in court Thursday.

Federal prosecutors had obtained a search warrant for records related to the website DisruptJ20.org as part of their bid to build cases against more than 200 people arrested for rioting on Inauguration Day in Washington, D.C.

But web hosting company Dreamhost balked at the request, arguing that the warrant would require it to turn over the IP addresses of more than 1.3 million users who visited the website.

“This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority,” the company said in a statement last week publicizing its intention to challenge the warrant.

The Justice Department responded in a court filing late Tuesday, saying the government “has no interest” in such a broad swath of records and did not know the extent of data Dreamhost collects. It offered an amended search warrant request that narrows the scope of the information sought.

“The government is focused on the criminal acts of defendants and their co-conspirators, and not their political views — and certainly not the lawful activities of peaceful protesters,” wrote prosecutors from the U.S. Attorney’s Office for the District of Columbia. “Similarly, the government is focused on the use of the Website to organize, to plan, and to effect a criminal act — that is, a riot.”

The revised warrant specifically seeks data stored on Dreamhost for the website from July 1, 2016, through Jan. 20, including any communications related to the planning and carrying out of crimes committed during the inauguration and identifying information for those involved.

A D.C. Superior Court judge is scheduled to hear arguments in the case Thursday morning.

Justice Department attorneys wrote in court filings that the narrowed request would moot Dreamhost’s arguments, but the web hosting company said it does not intend to drop the fight.

“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,” the company wrote in a response on its website. “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.”

A Dreamhost spokesman declined to elaborate on the constitutional concerns the company believes the DOJ’s new request raises ahead of Thursday’s hearing.

But other civil liberties experts agree there is cause for concern even with the DOJ’s amended search warrant.

Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program, points out that in the DOJ’s request to amend the warrant, that government lawyers still describe the initial warrant as “lawful and appropriate.”

“There’s certainly the possibility the Department of Justice could issue another such warrant in the future,” she said, adding that she believes the initial request raised serious Fourth and First Amendment concerns.

Under the government’s revised plan, “there is ample potential for getting information that would enable the government to identify people who transacted business on this website and are not under investigation for rioting,” Ms. Goitein said.

The DOJ has proposed that as it conducts a search of information turned over by Dreamhost, any information found to be outside the scope of its search will be held under seal by law enforcement and not reviewed further.

In a scenario like this one, where DisruptJ20 provided information about protesting President Trump’s inauguration, there are also unique First Amendment concerns that should be taken into account, according Paul Alan Levy, an attorney with Public Citizen who is representing five people who used the website and wish to remain anonymous.

“The government is seeking to seize the entirety of a set of communications about a political protest aimed at the president for whom the prosecutors are working, a president whose slashing response to dissent and even to members of the Senate who occasionally vote against his agenda suggests a complete lack of respect for the First Amendment rights of his critics,” Mr. Levy wrote Wednesday in a blog post on the case. “Particularly in those circumstances, the First Amendment does not require political dissenters to trust federal prosecutors to leaf through hundreds or thousands of emails that innocently seek or communicate information about peaceful protest activities, copying only the those from a small ‘focused group of people’ with violent intent.”

Ms. Goitein said some courts have previously accepted the government’s arguments that in the digital context they have to over collect and then sift through data to find the relevant information.

“Others have said this is a technological problem, and let’s find a technological solution,” she said.

But the fact that the discussion is taking place in public at all, and that the DOJ backed off of its initial broad request after public scrutiny, is unique, Ms. Goitein said.

“I think it is worth taking note of that. Ultimately, it may be these companies that are left with the responsibility of defending our First Amendment and Fourth Amendment rights,” she said.

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