The federal government served a warrant on Facebook, demanding access to the entirety of 90 days worth of communications in the accounts of three different users, including identifying information, and accompanies with an order forbidding Facebook from disclosing the existence of the warrants to the users so that they could seek judicial protection against the invasion of their free speech rights. Joining the ACLU, we argue in an amicus brief that the warrant appears to be a “general warrant” forbidden by the Fourth Amendment, which is especially troubling in the First Amendment context, and that non-disclosure order is an impermissible prior restraint, and that on the limited public record there does not appear to be compelling justification for the prior restraint.
On the eve of oral argument in the Court of Appeals, the government announced that it no longer needed to keep the search warrant confidential, and hence dropped its opposition to notification of the account holders. It turned out that the warrant was for information about accounts of two individuals involved in protesting the inauguration of Donald Trump, as well as a Facebook page called DisruptJ20 that had been created to publicize the inauguration protests; allegedly, these accounts had evidence of planning for riots during the protests.
Once they were notified, the account holders moved to intervene, seeking to quash the subpoena. Public Citizen has also sought leave to intervene on behalf of three anonymous Facebook users whose were either “friends” of the individual account holders or had “liked” the Facebook group page. We argue that the anonymous users have a First Amendment right to speak and read anonymously and that the government has not shown a compelling reason to take away their anonymity.
Judge Morin granted enforcement of the search warrant, but ordered Facebook to redact all information identifying parties other than the account holders who had communicated either substance or “likes,” or has “friended,” the three accounts or material posted on them. As in the DreamHost case, the government will be required to create a search protocol involving the use of keywords to identify material that may be relevant to the prosecution; the Court will then have to pass on the copying of any such information. However, the government will be allowed to read the entire accounts of the two individual protest leaders – thus possible learning some highly personal and private information – although it will only be able to keep copies of parts of those pages that are relevant to the prosecution. We moved for reconsideration of one narrow aspect or the judge’s order – one which appeared to allow the government to review all of our anonymous clients posts and comments to the pages of the individual account holders, instead of limiting review to those comments that were identified through a keyword search protocol approved by the judge.