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Rummaging Through Activists’ Facebook Messages Is Unconstitutional, Public Citizen Argues

WASHINGTON, D.C. – A search warrant allowing the police to rummage through private political communications and identify activists associated with an activist Facebook page violates the First and Fourth Amendments to the U.S. Constitution, Public Citizen said in a motion filed on Tuesday in the Circuit Court for Loudoun County, Va.

The controversy arose out of a demonstration held on Sept. 11, 2020, by the FreeThemAllVA coalition at the Leesburg home of Virginia Attorney General Mark Herring. The rally called on the attorney general to respond to the outbreak of COVID-19 at the Farmville Immigration Detention Center by releasing detained immigrants to their families. Someone at the demonstration painted the political slogan “Free Them All” on a sidewalk adjacent to the home; the Leesburg police have indicated that the painter committed the crime of destruction of property.

Purporting to seek access to a livestreamed video of the demonstration that appeared briefly on the FreeThemAllVA Facebook page, but later was removed, the Leesburg Police Department obtained a search warrant to Facebook demanding the names and addresses of all Facebook users associated with the page, as well as all content that was on the page for six days in mid-September, including any private messages sent to the page.

In a motion filed late Tuesday, the activists argue that the warrant is overbroad because it seeks to obtain private political communications that have nothing to do with the supposed crime of painting a slogan on the sidewalk. The motion also argues that the search for private information constitutes “exploratory rummaging” in violation of the Fourth Amendment’s prohibition on general warrants and violates the First Amendment’s protection for anonymous political speech. In addition, the motion argues that the search warrant has a serious chilling effect on free speech because, if enforced, the warrant would show that no Facebook privacy setting can protect against government snooping.

“Courts increasingly have recognized the need to limit the scope of search warrants in searching the social media accounts, especially when it is a political activist site being searched,” said Paul Alan Levy, the Public Citizen attorney who represents the activists. “We are urging the court to impose restrictions and procedures to ensure that the First and Fourth Amendments are fully respected.”

Although the Leesburg Police Department purportedly seeks only a video and photos that might reveal the identities of specific individuals who painted slogans on a Leesburg sidewalk, the warrant requires Facebook to disclose the entire contents of the FreeThemAllVA Facebook page for a period of six days or more. No aspect of the warrants prohibits government investigators from accessing, examining, copying and retaining all of the disclosed materials, to any extent it sees fit, regardless of the connection, or lack thereof, between much of the disclosed materials and the object of the warrants.

“For over seven months, people in Virginia detention centers have been demanding their release in response to COVID-19,” said FreeThemAllVA. “Instead of inspecting the facilities and releasing people, Virginia law enforcement is harassing the organizers who are shedding light on the situation by attempting to violate organizers’ privacy and suppress their speech.”

Nina Ginsberg of the Alexandria firm of DiMuroGinsberg is serving as co-counsel with Public Citizen.

The filed motions can be read here.