In re Search Info. Associated With Facebook Accounts Disruptj
| Decision Date | 09 November 2017 |
| Docket Number | Special Proceedings No. 17 CSW 659,Special Proceedings No. 17 CSW 658,Special Proceedings No. 17 CSW 660 |
| Parties | 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. |
| Court | D.C. Superior Court |
ORDER
This matter comes before the court pursuant to the government's motion to show cause seeking to compel Facebook, Inc. ("Facebook") to comply with three search warrants issued by the court on February 9, 2017, Nos. 17 CSW 658, 17 CSW 659, 17 CSW 660 (hereinafter, the "Warrants" or "February 2017 Warrants"), and Facebook's opposition thereto, along with the motions to intervene filed by Lacy Macauley, Legba Carrefour, and Emmelia Talarico (collectively, "the account holders") and the government's opposition thereto.
On February 9, 2017, the court (Wertheim, J.) authorized three separate search warrants1 for the Facebook accounts DisruptJ20, lacymacauley, and legba.carrefour, having found probable cause that each account contained evidence of violations of D.C. Code § 22-1322 () that occurred on January 20, 2017, in connection with the presidentialinauguration ("January 20 riots"). At the same time, the court issued three non-disclosure orders directing Facebook to temporarily delay notice of the Warrants to the account holders.
In response, Facebook withheld production and challenged the appropriateness of the non-disclosure orders. After hearing argument by both parties, the court declined to lift the non-disclosure orders. Facebook appealed the decision to the Court of Appeals, and oral argument was scheduled for September 14, 2017. On September 13, 2017, at the government's unopposed request, this court issued an order vacating the non-disclosure orders associated with each of the subject Warrants. Facebook then dismissed its appeal as moot.
Shortly thereafter, Facebook notified the account holders of the existence of the Warrants and provided them with an opportunity to bring their own challenge. The account holders moved to intervene and quash or narrow the Warrants on September 28, 2017. The government filed its opposition on October 4, 2017, arguing that the account holders' motion is premature because the Warrants have not yet been executed, and therefore, the account holders have no right to bring a challenge. The account holders filed their declarations and reply on October 10, 2017, and the court heard argument by all parties on October 13, 2017. To date, Facebook has not produced any data to the government, contending that it should not be required to comply until the account holders' motions are fully adjudicated.
It is undisputed that the Warrants are directed to two individual Facebook accounts ("the individual accounts") and one Facebook Page ("the Page"), for which the court found probable cause contained evidence of alleged crimes committed in the District of Columbia in violation of D.C. Code § 22-1322 by individuals for which the Grand Jury has already indicted over 200 people.
Execution of the Warrants will require Facebook to provide the government with extensive information for each targeted account, including the contact and personal identifying information for each account holder, and all profile information, activity logs, wall posts, notes, comments, photos, videos, friend lists, organizers and attendees for sponsored events, groups and networks joined, Facebook searches, deleted data, rejected friend requests, blocked friends, chats, live streams, and direct and group Facebook Messenger communications between the account holders and those with whom they communicated. Data to be produced under the Warrants is limited to approximately three months (between November 1, 2016 and February 9, 2017).
Some of the information sought is not publicly available and access to communications on the individual accounts and the Page is limited to particular individuals. In addition, based on proffers by the account holders and other third parties, the data may include deeply personal information (e.g., family pictures, details of romantic relationships, domestic violence encounters, and communications regarding medical and psychiatric history) and contain protectable political speech and association (e.g., political commentary, affiliations, names and pictures of event organizers and attendees) unrelated to the January 20 riot.
The Warrants, as issued, did not include any limiting safeguards to explain how the government would compel the production of data containing criminal evidence, or how the government intended to search the data received. Rather, the Warrants indicated that, after the government receives all data for the targeted accounts, it would only "seize" data relevant to information that it believes evidences the alleged crimes, as set forth in the supportingAffidavits.2 Subsequently, the government modified its request and indicated that it will remove any non-pertinent information from its possession.
Accordingly, in line with the traditional two-step process, the government requests that all information responsive to the Warrants be disclosed, but commits that it will ultimately not retain material non-pertinent to its investigation.
The First Amendment broadly protects the right to engage in anonymous political speech and associational activity. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341 (1995) (); NAACP v. Alabama, 357 U.S. 449, 462 (1958) (). First Amendment freedoms are no less robust on the internet. See Reno v. ACLU, 521 U.S. 844, 870 (); Solers, Inc. v. Doe, 977 A.2d 941, 950-51 (D.C. 2009) () (citation omitted); see also Bland v. Roberts, 730 F.3d 368, 385-86 (4th Cir. 2013) (). Protecting a speaker's right to conceal their identity is grounded in an "honorable tradition of advocacy and dissent," McIntyre,514 U.S. at 357, and necessary to ensure that public debate is "uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
The Supreme Court has determined that, when the government's investigation intrudes on First Amendment activity, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude." Stanford v. Texas, 379 U.S. 476, 485 (1965); accord, Maryland v. Macon, 472 U.S. 463, 468 (1985). The right to be free from government intrusion is preserved even where the government does not intend to cause specific harm. See Lyng v. Int'l Union, 485 U.S. 360, 367 n.5 (1988). Hence, the government must show that it has a compelling interest to justify even a subtle interference with an individual's ability to freely associate. See NAACP, 357 U.S. at 463.
Electronic searches can be time-consuming and raise logistical difficulties for law enforcement tasked with locating specific criminal evidence amidst all information in a given storage medium. In recognition of these difficulties, Superior Court Criminal Rule 41 (e)(2)3 presumptively authorizes a two-step process by which law enforcement may conduct "a later review of the media or information consistent with the warrant."4 This rule is substantially identical to its federal counterpart, Fed. R. Crim. P. 41 (e)(2)(B), as amended in 2009.5
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.6 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") () (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) () (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) (). Courts have acknowledged that, with such large disclosures of data, the government will inevitably come across unrelated material that exceeds the scope of the...
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