D.C. courts protect government data while ruling against protection for private citizens
By By Baynard Woods
Aug 29, 2017 | 11:59 AM
In two recent rulings District of Columbia courts sent confusing signals about individual privacy in a world of mass surveillance and digital information. Both of the decisions address theJ20case—200 defendants charged with rioting, conspiracy to riot, inciting riot, and destruction of property on Inauguration Day.
Last Thursday, the District's top judge ruled in favor of a search warrant that will allow police and federal prosecutors to obtain all of the data attached to a political website—and later determine what part of that data could be evidence of an alleged crime.
DreamHost, the company that hosted disruptj20.org, fought the warrant, arguing that the District of Columbia did not have jurisdiction to execute a warrant in California, where they are located, and that the government could not use a single warrant to gain the contents of multiple email addresses.
"It appears that what the government is saying that just because it is under the same domain they can use one search warrant to obtain content from numerous specific email accounts," said Raymond Aghaian, a lawyer for DreamHost, who likened it to searching all Gmail accounts with a single warrant.
"The Judge who issued the Warrant in July 2017 correctly found probable cause to believe that evidence relevant to the government's criminal investigation into the riot that occurred on January 20, 2017," the government argued in a written brief.
"You are providing all the data to the government," Chief Judge Robert Morin said to lawyers for DreamHost, the web-server that hosted disruptj20.org and was fighting the warrant as a violation of the first amendment.
Morin provided a paltry protection for innocent individuals whose data was swept up in the warrant. The government would, he said, review all the information, and whatever was not evidence of criminal conspiracy would be placed under seal, to be retrieved under judicial supervision.
But this is after the Trump Department of Justice has had the chance to view personal information from thousands of people who did no more than send an email to an address associated with the site.
"That's problematic. People don't want the government to have their information if they didn't do anything wrong," said Paul Levy, who argued for anonymous "Doe" citizens for Public Citizen, a public interest advocacy group. "And what the judge's order fails to do is to take adequate steps to protect the interests of those Doe users."
A week earlier, Judge Lynn Leibovitz granted a protective order to the state prohibiting the release of any discovery material in the case "to include but not limited to photographs, body worn cameras, non-public video… radio runs, and police paperwork."
This means that the police body camera video footage previously obtained and released by Democracy in Crisis would no longer be legal to distribute—and that material we already possess may not be able to be released to the public. More importantly, it means that defendants in the case are no longer able to share the evidence being used against them to file a civil suit against the Metro Police Department or individual officers.
In agreeing to the order, Judge Leibovitz noted that "no oppositions have been filed to date," even though the deadline for filing opposition had not yet come. It is also striking that the judge did not even mention the personal and perhaps embarrassing information taken from the cellphones of the individual defendants—whose privacy was supposed to be one of the reasons for the order. One defendant I spoke to recently received all of the contents of his phone, printed out in more than 4,000 pages.
While the contents of individual cell phones should be protected, police body cameras are public property allegedly deployed in service of the public good. This information should be available.
Since Inauguration Day, Democracy in Crisis has been fighting to determine precisely what weapons were used by MPD and other agencies on Inauguration Day. The ACLU, in its civil suit against the department, its chief and several individual officers, has been able to put together a list of suspected military-style weaponry deployed that day but the department has released no list itself.
Democracy in Crisis filed a Freedom of Information Act request seeking this information. MPD denied the request. We appealed. "MPD states that it is currently conducting criminal and civil investigations related to the protests and riots that occurred on January 20, 2017. MPD states 'release of the requested documents would inform persons involved of facts that could permit them to fashion their statements or testimony in order to escape culpability for wrongful actions.'"
We questioned this rationale. How would knowing the weapons deployed by MPD allow a defendant, who has access to the vast amounts of discovery material that it is now illegal to share, to craft testimony?
The office of the Mayor, which reviews petitions, agreed with us. "It is difficult to comprehend how the information, regarding equipment alone, would interfere with enforcement proceedings. We find that MPD has not sufficiently described the potential interference to enforcement proceedings to allow withholding of the responsive records in their entirety under Exemption 3(A)(i)."
MPD was given 10 days to comply with our request and either turn over the records or turn over a specific exemption for every record requested, with an explanation of how it will interfere with criminal proceedings.
It was reported over the weekend that the Trump administration is expected to overturn an Obama-era order prohibiting the use of military-style weapons by police departments, making the availability of such records even more important.
It is also part of an ongoing war of information in which the state, and in the District of Columbia, that is, when it comes to prosecutors, the Trump administration attempts to keep the activities of its officers and agents as secret as possible, while laying bare the lives of citizens through mass surveillance and prosecution.