Politics and privacy: The DOJ’s growing concern for online visitors

The Department of Justice is facing criticism surrounding its requests for information about online users opposed to the Trump administration.

Photo: Mark Lennihan | AP / People's World, (Courtesy of Google Images)

As the soon-to-be 45th President of the United States prepared for inauguration on January 20, 2017, Washington D.C. also prepared for a momentous occasion in American history. After a long and controversial series of campaigns, Donald J. Trump stood at the head of the National Mall to greet his supporters and fellow Americans as he was sworn into office; however, not everyone in Washington that day came to support the change in administrations. In fact, 234 people were arrested and charged with felonious rioting as protests turned unruly that day.

Even in August 2017, the Trump administration was still taking interest in what happened in Washington aside the National Mall. A week after Inauguration Day, the Department of Justice (DOJ) issued a warrant to a California-based company, DreamHost, requesting all files related to a website created by one of DreamHost’s users. The website, DisruptJ20.org, was used to openly communicate announcements and plans intended to interrupt President Trump’s inauguration by anti-Trump protesters. Rather than comply with the warrant, DreamHost refused, alleging the order raises a number of serious First Amendment questions and might have a potentially chilling effect on political association and expression.

Immediately after DreamHost’s pushback, the DOJ began receiving criticism from all points on the political spectrum. Fox News libertarian Andrew Napolitano noted “very serious constitutional problems” with the order, and his sentiments were surprisingly shared by more liberal news sources, such CNN and the Huffington Post. When a serious threat to free speech, political expression, and online privacy arose, a bipartisan force quickly formed to challenge it.

DreamHost has continued to remain upfront about why it thinks releasing the information to the DOJ is such a critical issue. DreamHost called the warrant “a highly untargeted demand” and “a strong example of investigatory overreach.” Moreover, in July, the DOJ issued a new warrant that demanded additional materials, including “all files, databases, and database records” related to DisruptJ20’s website. Again, DreamHost resisted, declaring the warrant too broad and therefore posing the risk of over-seizure.

It is estimated that about 1.3 million visitor logs could represent thousands, or even hundreds of thousands of people.

In its filing with the court, DreamHost addressed the extent of the warrant and just how much information it requested:

“This information includes the IP address for the visitor, the website pages viewed by the visitor, even a detailed description of software running in the visitor’s computer. In essence, the search warrant not only aims to identify the political dissidents of the current administration, but attempts to identify and understand what content each of the dissidents viewed on the website. The search warrant also includes a demand that DreamHost disclose the content of all e-mail inquiries and comments submitted from numerous private e-mail accounts and prompted by the website, all through a single sweeping warrant.”

To elaborate, logs of IP addresses cannot be used to specifically identify a singular user; rather they only link back to a specific physical address unless some digital tool was used to mask it; however, it is but a short step to connect an IP address to someone’s identity.

DreamHost insists its stance is not politically driven, but rather constitutionally mandated. DreamHost spokesman Brett Dunst stated the company is content-neutral, but the overbroad request compelled it to refuse and contest the request in court. It is estimated that about 1.3 million visitor logs could represent thousands, or even hundreds of thousands of people. According to Georgetown University law professor Paul Ohm, this general sweeping search mechanism is exactly what the framers of the Constitution wanted to avoid. Similar to Ohm’s commentary, Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, said, “No plausible explanation exists for a search warrant of this breadth, other than to cast a digital dragnet as broadly as possible.” Rumold also made comments regarding the Fourth Amendment’s design to prohibit such “fishing expeditions.”

DreamHost insists its stance is not politically driven, but rather constitutionally mandated.

After the second warrant, the government was asked to submit an amended report on exactly what data it would need to collect and explain how it intended to protect the “innocent” visitors to the website, striking a more balanced approach between privacy rights and the interests of the DOJ. The issue of privacy and its relationship with the First Amendment has extensive legal precedent. In NAACP v. Alabama, Justice John Marshall Harlan II stated the Court had unanimously “recognized the vital relationship between the freedom to associate and privacy in one’s associations.”

As in the instant case with DreamHost, the protestors gathered in Washington on Inauguration Day were not guaranteed absolute privacy. Sensibly, the DOJ has an interest in gathering evidence to advance prosecutions against those arrested and charged. Further, the First Amendment simply does not protect violent expression.

By forcing the government to defend its request for such a large data sweep, DreamHost conducted an important service for its users and for the greater American public. President Trump even acknowledged the importance of the right to protest as a foundational practice in the United States. Trump tweeted the day after his inauguration, “Peaceful protests are a hallmark of our democracy. Even if I don’t always agree, I recognize the rights of people to express their views.”

As this case continues to be debated, the battle of protecting and gathering online information should be of great concern to all Americans. This case rests at the intersection of First Amendment protections, privacy rights, and the Internet. Had DreamHost merely turned over the information, such protections would have taken a heavy blow. If the government could use the alleged crimes of an individual to demand the personal records of many, investigations run the risk of transforming into data mining.

If the government could use the alleged crimes of an individual to demand the personal records of many, investigations run the risk of transforming into data mining.

The DreamHost case is not the only instance of the government seeking to reveal people who oppose Trump or his policies. In March 2017, less than two months after the inauguration, the Homeland Security Department used their Customs and Border Protection (CBP) division to demand similar sources of information from Twitter. Specifically, CBP demanded Twitter hand over the IP addresses, mailing addresses, and phone number associated with an account purported to be communicating messages from anti-Trump users. Much like DreamHost, Twitter refused and noted the probable chilling effect on the political speech so many dissenters and “alternative agencies” use.

Professor Ohm stated his opinion on the DreamHost dilemma candidly during an interview with NPR, stating, “This site is about speech… It’s about assembly. It’s about petitioning the government… This is about disruption of speech.” For these reasons, the stakes are high and the judiciary is likely to give this case a close look as it continues to ensure individual privacy rights. This debate opens an opportunity for both the government and the general public to balance their interests in individual rights and the value of enforcing the law.

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About Taylor Elkins (11 Articles)
Taylor Elkins is a third year law student and serves as a Staff Writer for the Campbell Law Observer. Born and raised in Owasso, Oklahoma, Taylor went to Baylor University where she obtained a degree in biology and political science. During her time at Campbell, Taylor has worked at the North Carolina Department of Justice in the Criminal Appellate Division. She won Campbell's Richard Lord Intramural Moot Court Competition, and is now a member of Campbell's national moot court team. She is interested in patent law as well as appellate advocacy.