A Hole Into Which 1.3 Million Will Fall

Much has been made of the DreamHost subpoena for everything, absolutely everything, the internet host possesses with regard to the Resistance website, disruptj20.org. Regardless of side, it’s an outrage that the government would go after such an outrageously overwhelming amount of personal information about people for whom there isn’t the slightest hint of wrongdoing.

The Department of Justice initially used subpoenas to DreamHost to seek subscriber information about who ran the site. That’s fairly straightforward. But then they doubled down. They obtained a search warrant for an extremely broad array of data related to the site, including all stored records of access to the site or communications with the site.

As written, it seems to demand data including the IP addresses of everyone who ever accessed the site and the content of every site visitor’s question or comment submitted through the site’s comment form, as well as all emails sent to or through the web site. The Department of Justice has filed a motion in the DC court where charges are pending to compel DreamHost to respond, and DreamHost has filed an opposition articulating its objections to the warrant.

There is no doubt a strong sense of relief and appreciation that DreamHost refused to acquiesce to this outrage, particularly given that others would have quietly capitulated. As the supporting affidavit is unavailable, it’s impossible to seriously challenge the basis for probable cause presented to the judge who signed off on the warrant. But the sheer magnitude of the compelled disclosure, all somehow relating to the prosecution of about 200 for allegations relating to the inaugural protest, is mind-blowing.

But Orin Kerr throws a wet blanket on the outrage.

What makes this tricky, I think, is that Dreamhost is only involved in the initial search stage of a two-stage warrant. Computer warrants are ordinarily executed in two stages. First, the government gets access to all the electronic records. Next, the government searches through the records for the particularly described evidence. Courts have broadly allowed the government to follow this two-step procedure, in which they get all the stuff in the initial stage of electronic evidence warrants so that they can search it for the relevant evidence.

As Orin notes, this goes back to the Magistrates’ Revolt, The issue is whether the issuing judge could refuse to sign off on a search warrant, or impose limits where the application had none, because of ex ante constitutional problems. It was my contention that they could, and they should. Orin disagreed, arguing that if there was probable cause, then the mag’s job was done and it was left to the district judge, ex post, to decide whether the warrant was flawed. Because that happens a lot.

It’s not that the warrant doesn’t check all the boxes for outrageous overreach, most notably because it not only seeks far, far more than could possibly be justified, but what it seeks is a list of people who are less than enamored by the president. Does this implicate the First Amendment? It surely does.

“It’s a fairly recklessly broad demand,” said Ken White, a defense attorney at Brown, White & Osborn in Los Angeles who writes on the law-oriented blog Popehat. White explained that the warrant doesn’t seem to seriously consider the possible ways it might run afoul of the First Amendment. He said that could be the result of “simple shoddy work and inadequate judicial oversight” rather than “intentionally malevolent overreach.”

And DreamHost’s attack of the warrant is predicated on its impact on the First Amendment’s protection of political speech. But as Orin points out, that doesn’t necessarily remove it from the procedural problems.

As I read it, Dreamhost is essentially challenging the widely accepted two-stage warrant practice. Some federal magistrate judges in the “magistrate’s revolt” have made that argument, but they generally have been overruled at the district court level.

As much as we applaud DreamHost for refusing to cave, does it have standing to challenge the search warrant as a non-party on behalf of unknown users? The website owner would perhaps have been a better choice of plaintiff, if that was feasible, but DreamHost is just the conduit here.

Nor does DreamHost challenge the warrant as being compelled to serve as a slave to the government’s unduly burdensome demands. It’s likely that a push of a few buttons could produce the information, to the extent it’s available, the warrant requires. While it might have been smart for DreamHost not to maintain any of the information sought at all, that’s water under the bridge at the moment.

But this goes back to the ex ante problem. There is no real question that the government, at best, has no justification to seek 1.3 million users’ personal information. The problem is that the government doesn’t know what it wants as yet, and so it demands the stack of hay in which it will later search for its needle.

If you’re one of the 1.3 million, but not whom the government is looking for at the moment, you’ll never know that the government now has your info (other than reading about it on the internets). You will never have the opportunity to oppose the warrant, even if you wanted to. You won’t be around for that ex post motion, even though you’ve already lost your privacy. You are left without a remedy after being stripped naked by a warrant having nothing to do with you because the government doesn’t have a sufficient clue what it’s looking for. Yay for the government. Boo for you.

Orin is right, the Magistrates’ Revolt hasn’t fared well in the district courts ex post, where judges have essentially told the mags to keep their nose out of the judges’ business. After all, the process favors the government’s ignorance over your privacy and deprivation of remedy, so too bad for you. That’s how the law is shaping up in this brave new world of 1.3 million victims of unjustifiable government intrusion all to seek a few drabs of evidence against the 200.

10 thoughts on “A Hole Into Which 1.3 Million Will Fall

  1. B. McLeod

    Of course, when citizens venture to do anything in the ether, it should be with awareness that hackers and agents of our government (and likely of foreign governments) who don’t even concern themselves with “warrants” are accessing whatever they please, whenever they please. Things like this only annoy because they are visible.

  2. Jake

    If you’re up to a lawsplain this morning…I’ll trade you a great story to set the stage…

    Let’s say one of those storage rental places is across the street from a delicious donut shop in LA. It’s called ‘Mega-U-Store’ -the biggest storage place in the world, with 1.3 million, identical storage closets.

    One day, between sharing details of their sexual conquests and work out routines, a group of young federal agents sitting outside the donut shop decide that a lot of ‘bad hombres’ routinely enter and exit the compound via the main gate. Agent Smiles crosses the street to interrogate the manager on duty and demands to know what they are up to.

    “They? Officer?” Pimples doesn’t recognize the badge in his face and he certainly doesn’t know which of the 1.3 million storage-unit leasees Agent Smiles is referring to. Up until this very moment, his responsibilities went no further than turning the lights on and off and reading manga comics for 8 hours a day. The only thing he remembers from training is that the penalty for opening a leasees storage unit without the leasees permission is being fired with possible civil liabilities at the leasee’s discretion.

    “Nevermind.” Agent Smiles replies, after wiping some maple bacon glaze off the corner of his mouth with his sleeve. “You have a nice day.” He exits the building and heads over to the Federal Courthouse to see his good friend the magistrate, with a delicious box of donuts.

    “Of course I’ll give you a warrant pal,” says Magistrate Gourmand, panting as he tries desperately to eat two donuts at the same time. The Magistrate breathes laboriously and sweats profusely under the best of conditions.

    “Which unit do you want to investigate?” He asks, licking his fingers.

    “All of them.” He replies.

    Magistrate Gourmand stops eating for a moment and turns to look at Agent Smiles. “All of them?”

    “All of them. I’m not sure which unit the bad hombres leased.” Agent Smiles pulls another box of donuts from his bag and places it on the judge’s bench.

    “Well, OK then…Um, what are you looking for?”

    “I don’t know. The bad hombres might be moving guns, or drugs, maybe people. We’ll know when we find it.”

    Magistrate Gourmand shrugs, scribbles something on the warrant and hands it over to Agent Smiles, who smiles.

    Agent Smiles returns to Mega-U-Store and shows his warrant to Pimples and demands keys for the main gate and every unit in the building. For a moment Pimples is conflicted. He knows one rule about managing Mega-U-Store, but Agent Smiles has a gun and a document with words he doesn’t understand scribbled all over it…

    My question is this: Does Pimples have more of a legal standing to resist the blatant overreach than Dreamhost because storage units contain the private property of individual leasees?

    1. SHG Post author

      That was an excellent story. I had to stop and take a cold shower when I got to the maple bacon donut part.

      So, in another workd, I might start with discussing the problem analogizing the digital world to the physical world involve ignoring substantive differences, even if there are also similarities. But your question requires no such effort. No, Pimples has no more standing to resist than DreamHost, as he has no ownership interest in the property nor expectation of privacy in the storage units. It would be bold of Pimples to do so, and the owners of the storage units would likely appreciate his boldness, but that’s not standing.

      1. Jake

        “I might start with discussing the problem analogizing the digital world to the physical world involve ignoring substantive differences, even if there are also similarities. ”

        Asking, but not expecting, if you felt so inclined, I am interested to know more about those substantive differences.

        1. SHG Post author

          I’ve discussed the failings of digital law by analogy many times before when implicated by the facts. Today is not that time.

      2. Norahc

        To carry the analogy one step further, would standing change for Pimples if he leased one of the storage units in addition to working there? Or maybe if the company he worked for uses a couple of units for business record storage.

        And trying to bring that back to the digital, would the website host have standing to challenge if some of their information or records would be included in the search warrant?

        1. SHG Post author

          Standing is standing. If they have it, they have it. Changing the hypo to add standing adds standing, but they still only have standing to challenge as far as their standing goes. That’s how standing works.

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