Paul Sakuma / AP
Three Facebook users are challenging newly disclosed search warrants for their account information, arguing that the warrants are overbroad and would chill political activists from engaging in constitutionally protected speech online.
Federal prosecutors obtained search warrants in February seeking a broad range of information from Facebook about the three accounts over an approximately 90-day period. A judge initially blocked Facebook from telling users about the warrants at the government’s request, but federal prosecutors this month dropped the secrecy demand after Facebook and civil liberties and electronic privacy groups challenged the gag orders.
Now that the account holders know the government wants their information, they’re going to court.
Lacy MacAuley, one of the account holders, told BuzzFeed News it was a “total shock” to get an email from Facebook about a week and a half ago alerting her to the warrant for her account. She called the warrant, issued by the US attorney's office in Washington, DC, an “absolutely ridiculous invasion of privacy” and a “really dangerous move towards fascism.”
“Jeff Sessions doesn’t need to see my family photos. Jeff Sessions doesn’t need to see my conversations with a romantic partner. Jeff Sessions does not need to see people sending me their private information,” she said.
Represented by the American Civil Liberties Union of the District of Columbia, the account holders filed papers on Thursday asking a judge to either quash the warrants or, if the judge isn’t willing to go that far, order that an independent “special master” search the records instead of law enforcement officials.
ACLU attorney Scott Michelman told BuzzFeed News that the case is about more than the privacy and constitutional rights of the three Facebook users. At stake is how much leeway prosecutors have in an array of cases to sift through the vast amount of personal information stored on sites like Facebook, he said.
“The warrants at issue authorize precisely the type of fishing expedition that the Fourth Amendment prohibits,” Michelman said. “A huge quantity of information, both personal information about communications with romantic partners, and medical and psychiatric information and family photos, will be released. And equally if not more troubling … the political associations and political activities of both the users and third parties with whom they communicate, will also be revealed.”
A spokesman for the US attorney’s office in Washington declined to comment.
Thursday’s filings reveal for the first time what was suspected when BuzzFeed News first reported the gag order fight in July — that the February warrants relate to the criminal prosecution of people arrested at protests in Washington, DC, during President Donald Trump’s inauguration. According to the search warrants, which were previously under seal but included in the ACLU’s court papers, prosecutors are seeking any information that relates to alleged rioting on Jan. 20.
Facebook does not object to the account holders' motion to quash the search warrants, according to the ACLU’s court papers.
More than 200 people were arrested in downtown Washington on Jan. 20 and charged with felony rioting and property destruction. According to the government, the alleged riots caused more than $100,000 in property damage. Just under 200 cases are still pending. The defendants will be tried in small groups, with the first trial scheduled to start in November.
As the government and defense lawyers prepare for the first trial, though, prosecutors are still fighting in court over whether and to what extent they can search electronic information related to the protests and the arrests.
In the Facebook case, two of the accounts belong to individuals involved in planning Inauguration Day protests, MacAuley and Legba Carrefour. Neither has been criminally charged in connection with the Jan. 20 arrests. The third account is called disruptj20, and it served as a hub for organizing anti-Trump protests on Jan. 20. According to court papers, the disruptj20 page is owned by Emmelia Talarico, who also is not facing criminal charges.
Prosecutors want to use what’s known as the “two-step” process to access and search the Facebook accounts. Under that protocol, law enforcement would get access to a large cache of records — which may include information outside the scope of the search warrant — and then conduct a targeted search for information that does fall under the warrant to seize.
Prosecutors separately have been fighting in court over a search warrant for information from a website that was used to coordinate anti-Trump protests on Inauguration Day. A judge ruled that prosecutors can use the two-step process in that effort, but only after the judge approves their search procedures, given the free speech-related issues at play. The judge also said that he would require the government to submit for his review a list of records that they believed would fall under the search warrant to seize.
The government and the company that hosts the website, Dreamhost Inc., are still litigating over the search plan proposed by prosecutors.
In the Facebook case, the ACLU isn’t challenging the two-step process as a whole, but is arguing that in cases that implicate political speech, there should be limits on what information prosecutors have access to, how they search it, how they store it, and how long they can keep it. If Facebook complies with the warrants, the records it would produce to the government to search would include users' messages, posts, photos, personal information, and connections with other accounts, as well as information on people who liked or otherwise interacted with the disruptj20 page.
Michelman said that it was difficult to say what combination of safeguards would satisfy his clients, but that it was the government’s burden to come up with a plan that satisfies the Fourth Amendment’s requirement that searches be narrowly tailored to information that the government has probable cause to seize.
“In light of the increasing ubiquity of social media and electronic communication, these types of demands will only increase,” Michelman said. “It’s vital if courts are going to preserve the Fourth Amendment’s role in prohibiting government fishing expeditions, that they impose some constraints on the government’s authority at this stage, before government rummaging through electronic accounts becomes commonplace and accepted practice.”