DC Inauguration protestor Facebook and email warrant case now on Lexis

In the DC protestor Facebook litigation, the trial court’s order finally appears on Lexis, but I did find links to the opinions elsewhere. In the Matter of the Search of Information Associated with Facebook Accounts disruptj20, lacymacauley, and legba.carrefour That Is Stored at Premises Controlled by Facebook, Inc., 2017 D.C. Super. LEXIS 16 (Nov. 9, 2017) (see also In the Matter of the Search of www.DisruptJ20.org that is Stored at Premises Owned, Maintained, Controlled, or Operated by Dreamhost, 2017 WL 4169713 (D.C.Super. Sept. 15, 2017)). The court recognizes that the First and Fourth Amendment together required the warrant be narrowed to protect privacy rights. (See Treatise § 27.03) The court differentiated between Facebook pages and email accounts.

Courts have generally agreed that a two-step process is appropriate for searches of computers or hard drives, often containing substantial information, to ensure that evidence is properly preserved. See, e.g., In the Matter of the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 157, 166 (D.D.C. 2014) (“In re Apple Account”) (authorizing government’s seizure of defendant’s home computer and digital media for a subsequent off-site electronic search where there was a “fair probability” of finding evidence on those devices) (following United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’”) (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999)).

The court acknowledges the usefulness of a two-step process. At the same time, it is certainly true that electronic searches may present increased risks to the individual’s right to privacy and other constitutional interests “as technological advances enable law enforcement to monitor and collect large volumes of electronic communications and other data.” In re Apple Account, 13 F. Supp. 3d at 166; see United States v. Blake, 868 F.3d 960, 973-74 (11th Cir. 2017) (noting that application for an individual’s entire Facebook account would unnecessarily disclose to the government “virtually every kind of data”). Courts have acknowledged that, with such large disclosures of data, the government will inevitably come across unrelated material that exceeds the scope of the warrant. See Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”); United States v. Sealed Search Warrant, 2017 U.S. Dist. LEXIS 125792, at *13 (N.D. Ala. Aug. 8, 2017) (acknowledging that “some perusal” is generally necessary to determine the “relevance of documents to the crime”) (quoting United States v. Slocum, 708 F.2d 587, 604 (11th Cir. 1983)). As “over-seizing” is considered to be an “inherent part of the electronic search process,” it often provides the government with “access to a larger pool of data that it has no probable cause to collect.” In re Search of Info. Associated with the Facebook Account Identified by the Username Aaron.Alexis, 21 F. Supp. 3d 1, 8 (D.D.C. 2013) (“Aaron.Alexis”).

Today’s ever-accelerating technological advances are transforming the way people interact with the world around them, often leaving the user’s privacy expectations trailing slowly behind. The interactive nature between digital devices and use of social media means more personal details that were once kept in private diaries, or computers, are now being stored with third party data storage companies. The natural consequence of living in a highly connected age, however, is the substantial likelihood that a subscriber’s intimate personal information can be discovered by an unintended recipient. Privacy is an evolving concept in the online context, where subscribers are often free to choose their own privacy settings for their online accounts, ranging from completely private (accessible only to user) to limited (between user and specific individuals) to public. This analysis gets even more complicated when determining how much government access should be afforded. Pervasive use of “cloud” technology and social media, combined with growing online storage capacities, creates “a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” In re Cunnius, 770 F. Supp. 2d 1138, 1151 (W.D. Wash. 2011); accord, United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc).

Due to the individual interests implicated in electronic searches — particularly those searches involving lawful political activity and expression — the Supreme Court has tasked judicial officers with the responsibility of ensuring that electronic searches “are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Andersen, 427 U.S. at 482 n.11. As a result, courts have wrestled with how to balance an individual’s right to engage in private online expression with the government’s ability to prosecute criminals, especially where probable cause has been established that a particular electronic device or online account may contain evidence of a criminal offense. See, e.g., In re Info. Associated with ____@gmail.com, 2017 U.S. Dist. LEXIS 130153, at *77 (D.D.C. July 31, 2017); United States v. Search of Info. Associated with Fifteen Email Addresses, 2017 U.S. Dist. LEXIS 159535, at *19-23 (M.D. Ala. Sept. 28, 2017) (“Fifteen Email Addresses”); In re Search of Info., 212 F. Supp. 3d 1023, 1038 (D. Kan. 2016). This means that determinations must be made on a case-by-case basis. Schesso, 730 F.3d at 1046.

The risk for disclosure of private political speech and association of innocent persons to the government cannot be ignored and therefore additional protections are necessary. Various courts have agreed that, although not required by the Fourth Amendment, incorporating additional protections into electronic search warrants are appropriate to minimize the possibility of abuse by the government. See In re Search of Info., 212 F. Supp. 3d at 1038 (acknowledging “that a judge may have the authority to impose reasonable ex ante instructions”); United States v. Christie, 717 F.3d 1156, 1166-67 (10th Cir. 2013) (discussing that the particularity requirement may or may not require limitations ex ante); In re Search Warrant, 71 A.3d 1158, 1186 (Vt. 2012) (rejecting “any blanket prohibition on ex ante search warrant instructions”) (“Vt. Search Warrant”); United States v. Hill, 459 F.3d 966, 976-77 (9th Cir. 2006) (“[W]e look favorably upon the inclusion of a search protocol; but its absence is not fatal.”). In some circumstances, restrictions have been viewed as “essential to meet the particularity requirement of the Fourth Amendment,” especially where, as here, the search involves nonresponsive information intermingled with relevant evidence. Vt. Search Warrant, 71 A.3d at 1184. In fact, the federal courts in the District of Columbia have often required the government to implement search protocols into its warrant applications to minimize the risk that non-pertinent data is discovered. See, e.g., In re Search of Apple iPhone, 31 F. Supp. 3d 159, 164 (D.D.C. 2014) (“Apple iPhone”) (requiring the government to explain how it intends to conduct its search and deal with issue of intermingled documents); In re Search of ODYS LOOX Plus Tablet, 28 F. Supp. 3d 40, 46 (D.D.C. 2014) (“No sophisticated search should occur without a detailed explanation of the methods that will be used, even if the explanation is a technical one, and no search protocol will be deemed adequate without such an explanation.”); Aaron.Alexis, 21 F. Supp. 3d at 11-12 (outlining non-exhaustive minimization plan for electronic searches).

Although the online presence of individuals is more prevalent, current technological capabilities allow law enforcement in some circumstances to execute electronic searches of online email and social media accounts in a more targeted manner than is possible on a hard drive or computer. See Fifteen Email Addresses, 2017 U.S. Dist. LEXIS 159535, at *16-18 (“[S]orting the main content—emails—by date or sender or recipient or even by keyword would be much easier than sorting data stored on a hard drive.”); Apple iPhone, 31 F. Supp. 3d at 161 (“By using search tools, there is also the potential for narrowing searches so that they are more likely to find only the material within the scope of the warrant.”); In re A Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@Gmail.com Maintained at Premises Controlled by Google, Inc., 33 F. Supp. 3d 386, 394 (S.D.N.Y. 2014) (“Indeed, in many cases, the data in an email account will be less expansive than the information that is typically contained on a hard drive.”); see also Aaron.Alexis, 21 F. Supp. 3d at 11 (“[T]he premise … that law enforcement ha[s] to open every file and folder to search effectively [] may simply no longer be true.”). Unlike searches of computers or hard drives, “the means of hiding evidence … [through] obscure folders, misnamed files, [or] encrypted data[, is] not currently possible in the context of a Facebook account.” Blake, 868 F.3d at 974. In fact, for Facebook account searches, “the government need only send a request with the specific data sought and Facebook will respond with precisely that data.” Id. Such requests can feasibly be narrowed to particular individuals suspected of taking part in the alleged crime, or where unknown, limiting data production by types of files or communication topics. Fifteen Email Addresses, 2017 U.S. Dist. LEXIS 159535, at *22; United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006).

There are circumstances in this case which allow the court to consider limitations on the government’s search while also protecting its legitimate need to prosecute criminal activity. Here, the information sought by the February 2017 Warrants has been preserved by Facebook so that there is no risk of its destruction. In addition, by agreement of the government, the account holders and other third parties have been provided notice and an opportunity to present argument on the issue. And, finally, Facebook currently has the technological capabilities to enable execution of the Warrants in a manner that also protects innocent users’ privacy and First Amendment interests.

Based on the current proffers, execution of the Warrants will produce to the government a variety of data and communications associated with the two individual accounts and the Page. Any evidence in the production of data will likely be co-mingled with personal information and otherwise protected political and associational material, implicating the privacy and First Amendment rights of the account holders and other third parties who interacted or communicated with the targeted accounts. Given the potential breadth, the Warrants in their execution may intrude upon the lawful and otherwise innocuous online expression of innocent users. Therefore, the court deems it appropriate in this case to implement procedural safeguards to preserve the First Amendment and Fourth Amendment freedoms at stake and ensure that only data containing potential incriminating evidence is disclosed to the government.

B. Procedural Safeguards

As this court has previously stated in a similar context, while the government has the right to execute its warrants, it does not have the right to rummage through the information contained on the Facebook accounts and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. In the Matter of the Search of www.disruptj20.org That Is Stored at Premises Owned, Maintained, Controlled, or Operated by DreamHost, No. 17 CSW 3438, at *1 (D.C. Super. Ct. Oct. 10, 2017) (“DreamHost”).

The Warrants that are directed to the two individual Facebook accounts are distinguishable from the Facebook Page. The Page is similar to the website this court addressed in DreamHost, with multiple persons having access to, and communicating through, a common forum. See id. In contrast, the individual accounts are more analogous to an email account which historically has been subject to authorized search warrants without limitations, together with other stored data, some of which is intended to be publicly available and some of which is intended to be private.

Because of the different nature of the Page and the individual accounts, the government’s search of each must be tailored to the nature of the data being stored and account for what was intended to be private and that which was not. Accordingly, the court sets forth protections that must be adhered to in searching the Page, followed by the protocols for searching the individual accounts. Law enforcement will be able to feasibly execute these safeguards based on Facebook’s technological capabilities.

Facebook Page (DisruptJ20)

In line with the government’s representations at the October 13 hearing, the government’s request for information relating to the Page has been narrowed to (1) exclude from production the identities of any individuals who liked or followed the Page, and (2) limit the production of any photographs uploaded (between January 20, 2017 and February 9, 2017).

The government also agreed to narrow its warrant for the Page by implementing the search protocol ordered by this court in DreamHost, No. 17 CSW 3438. In accordance with the Dreamhost order, the government must adhere to the following safeguards:

1. File a report with the court, ex parte and under seal, explaining the government’s intended search protocols designed to uncover only that data and information that evidences the alleged crimes that serve as the basis for the Warrant at issue;
2. If the court approves the protocols, the government may only conduct its search on a redacted data set that omits non-account holder identifying information;
3. Upon completion of review, the government must file with the court, ex parte and under seal, an itemized list of the materials it believes evidences a violation of D.C. Code § 22-1322, explaining how such materials are relevant to its investigation, its basis for removing any redactions, and how it will permanently remove from its possession any non-pertinent data; and
4. Only upon a finding by the court that the requested information is evidence of criminal activity, as described in the Warrant for which this court has found probable cause, may the government obtain any unredacted information, such as the identity of a third party user.

DreamHost, No. 17 CSW 3438, at *2, 95-10. The government shall not begin its review of the redacted materials provided by Facebook until the court has approved the government’s proposal and authorized the government to begin its detailed review of the redacted materials.

Individual Accounts (Lacymacauley and Legba.Carrefour)

At the October 13 hearing, the government indicated that it seeks to conduct a “front-to-back” (rather than “key word”) search with respect to the individual accounts. The government also narrowed the information sought by (1) excluding from production the list of friends of an individual account, (2) excluding from production the identities of any individuals who liked or communicated with an individual account, and (3) limiting the production of all photographs uploaded to a particular individual account (between January 20, 2017 and February 9, 2017).
Because the communications and records sought relate to specific individuals, and the government has established probable cause as to those individuals, the government is authorized to review the communications and postings in the individual accounts. Having already established probable cause to believe that criminal activity is likely to be found in the individual accounts, the government is entitled to review the material and determine for itself whether, and to what extent, there is evidence of criminal activity.

Assuming that any alleged evidence is intermingled with unrelated information, that intermingling exists because the account holders chose to store their data with a third party, Facebook, in that manner. This is distinguishable from the information concerning persons whose information is sought due to their lawful interaction with the targeted accounts. Probable cause has not been established with respect to these individuals and thus they are entitled to remain anonymous.

To ensure that the identities of innocent persons are not revealed, the government must conduct its review in accordance with the following procedures:

1. Facebook shall redact any identifying information of persons to whom Facebook Messenger communications are sent, persons who liked or friended a particular account holder, and other information not directly related to an account holder.
2. Once the government has reviewed the redacted information, it shall file with the court, ex parte and under seal, any request(s) for non-redacted identifying information, including an explanation as to why a specific record should be revealed to the government.
3. The government must then permanently delete from its possession any data that does not fall within the authorized scope of the Warrants; and
4. The government shall not distribute, publicize, or otherwise make known to any other person or entity, to include any other law enforcement or government entity, the data and information not within the authorized scope of the Warrants.

The Court reiterates that the government can always seek additional warrants if it later determines that its search was too narrow.

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