AAN joined more than 100 organizations on a letter to Attorney General Jeff Sessions arguing against a wide-ranging search warrant issued by the Department of Justice to a web hosting company called DreamHost. The warrant sought a significant amount of information relating to the DisruptJ20.org website, which is alleged to have been a planning ground for the Inauguration Day protests in Washington, D.C. that resulted in property damage and some other criminal acts.  In the end, the scope of the original warrant was narrowed slightly, but we remain concerned that the Chief Judge of the D.C. Superior Court declared the amended search warrant to be a valid means of putting together a law enforcement investigation.

The DOJ originally sought the following information relating to about 1.3 million people, some of whom only had passive connections to the DisruptJ20.org website:

• All records or other information pertaining an account or identifier stored by DreamHost in relation to DisruptJ20.org;
• All information in possession of DreamHost which might identify the subscribers related to those accounts, including names, telephone numbers, addresses, email addresses, length of service and payment information;
• All records retaining to the type of service utilized by the user; and
• All records pertaining to communications between DreamHost and users.

It was at this point, in the midst of already significant public outcry, that we agreed to join a letter to Attorney General Jeff Sessions that had been written by the non-profit organization Openthegovernment.  More than 100 organizations of all kinds had committed to signing this letter when the DOJ voluntarily amended the scope of its request.   The DOJ said it would no longer seek:  (1) HTTP access and error logs (which means Visitor IP addresses are largely safe, protecting those who just visited the site) or (2) Unpublished drafts and images which might have been stored on an account. However, it still wanted published content and transactional data including type of service, communications between DreamHost and Users, and information identifying those people involved (like the names of all who simply subscribed to the sites Email list).  The time period for the request was narrowed slightly.

Openthegovernment modified the letter, which was sent to Attorney General Sessions on August 24, 2017.  The revised letter argued that:

• Information about more than 1.3 million visitors to the website (as a means of identifying 200 violent protestors) should never have been requested in the first place.  The 1st and 4th amendments require a particularized request for information; this was anything but;
• The fact that the DOJ only narrowed the scope after such outcry remains a big concern, especially when the DOJ maintains the legality of its request; and
• Even the narrower request — which doesn’t seek the logs of all visitors to the DisruptJ20 website and instead seeks IP addresses and content of email inquiries and comments submitted from numerous private email accounts associated with the website from July 2016 through Inauguration Day – is still too broad and would likely sweep up information about those who were not involved in the protest in any way, chilling their protected speech.

DreamHost continued its resistance in court where Chief Judge Morin eventually issued an Order which:

• Reaffirmed the validity of the modified request;
• Tells DOJ to present the court with a minimization plan that includes the names of all government officials who will have access to data and a list of methods that will be used to comb through the data (will they search for specific keywords, go line by line, etc.);
• Forces DreamHost will give the evidence to the court, not directly to DOJ, at which point the court will oversee production of the evidence; and
• Says the court will seal any information that is deemed not responsive; that information will not be available without court order – not even to another government agency.

It’s troubling that the court upheld the validity of a warrant for this information; that will embolden the DOJ to perhaps go after others who might not fight back. The DOJ is likely to take their chances with broad warrants in the future, with the hope that the next recipient just capitulates.   The government approval of this method is therefore still likely to have some kind of chilling effect.  And “innocent users” are still likely to be swept up in this warrant.

At the same time, the courts have been willing to delve into these requests and think pragmatically about them pushing back against the government and, in this case, narrowing the scope of the warrant and taking on the burden of continued oversight.

We understand that DreamHost is strongly considering an appeal to the D.C. Court of Appeals. We intend to remain involved if that happens.