Oct. 10, 2017
Court Upholds Protestors’ Anonymity Rights in Trump Inauguration Case
Statement of Paul Alan Levy, Attorney, Public Citizen
Note: Today, Chief Judge Robert Morin of the Superior Court of the District of Columbia issued a ruling in a case in which the U.S. Department of Justice is seeking information from DreamHost, a web platform hosting company, about visitors to DisruptJ20.org, a website used to organize protests during the inauguration of President Donald Trump. Morin denied the government access to any identifying information about third parties who communicated with the website, using a broad definition of identifying information. Public Citizen represents anonymous users of the site. Learn more about the case.
Today’s ruling is a victory for the First Amendment right of people to plan a protest without worrying about having their identities disclosed to the government.
Under today’s ruling, lists of members of the DisruptJ20 listservs, as well as identifying information included in emails to and from the email addresses on the DisruptJ20.org domain, are protected from disclosure unless a specific showing is made, later in the process, that a particular record containing identifying information merits disclosure.
In addition, the judge has delineated procedures that, in his judgment, will ensure that the government will not get access to that information unless it goes through a multistep process of formulating search protocols that will produce only information relevant to the possible planning of a riot, and then shows that the information is, in fact, relevant to the riot prosecutions.
The judge also refused to let the government expand its search to obtain “exculpatory” information (that is, everything that is not evidence of riot planning) because such information was outside the scope of the warrant.
Some aspects of the judge’s ruling are disappointing. The judge has decided to allow a search of emails from anonymous users (without their identifying information) even though the government never showed that it had a good reason to look at those emails. And he will allow the government to make its justifications under seal, based on a presumption (without any evidence) that secrecy is needed to protect the government’s investigation. In this way, the judge is denying Public Citizen and DreamHost the opportunity to explain why the government’s arguments for a search protocol or access to a particular record should be rejected.
There remains one hope for public accountability: It appears that the government will have to notify counsel for the anonymous Internet users if it is obtaining information about them. The judge leaves open what process will be followed at that time.
In the meantime, the judge is taking on a monumental task of reviewing the government’s showing without the aid of outside counsel.