D.C. Court Reins in Government’s Overbroad Search of Facebook Accounts

WASHINGTON — In response to motions filed by the American Civil Liberties Union of the District of Columbia, the D.C. Superior Court has limited the scope of search warrants obtained by federal prosecutors targeting three Facebook accounts as part of its investigation and prosecution of activists arrested on Inauguration Day 2017 in Washington, D.C. However, the court ruled that the government could still examine the contents of two individual accounts to seek evidence.

“The court agreed to impose safeguards to protect political activity and third-party communications from government snooping, but was not equally careful to protect our clients’ private and personal communications,” said Scott Michelman, Senior Staff Attorney, ACLU of the District of Columbia. “Our clients, who have not been charged with any crime, expect that when they send private Facebook messages about, for instance, their medical history or traumatic events in their lives, those messages will remain private unless the government shows probable cause to search those particular messages, which it has not done.”

The order came after the ACLU-DC filed motions in late September to intervene and quash or modify two search warrants that would have required Facebook to disclose to the government the entire contents of the personal Facebook profiles of local DisruptJ20 activists Lacy MacAuley and Legba Carrefour from a period of more than 90 days in late 2016 and early 2017. A third search warrant sought, for the same period of time, the public and nonpublic contents of the “DisruptJ20” Facebook page (now called “Resist This”), administered and moderated by local activist Emmelia Talarico.

At a hearing on October 13, the ACLU-DC argued the search warrants are overbroad under the Fourth Amendment and are particularly problematic because the lawful political associations and activities of the users and thousands of third parties will be revealed, along with deeply private communications. The government conceded at that hearing that its investigation did not require all the material that the warrants originally sought.

Today’s decision orders Facebook to edit out all third-party identifying information, including the identities of the approximately 6,000 people who liked or followed the DisruptJ20 Facebook page, the names of MacAuley and Carrefour’s Facebook friends, and the names of anyone who communicated with MacAuley or Carrefour. In addition, the court limited the date range of photos sought from all three accounts, from 101 days (November 1, 2016 through February 9, 2017) to 21 days (January 20, 2017 through February 9, 2017).

The court will also require the government to submit a search protocol to the court for approval before it can search the DisruptJ20 page. The government must also seek the court’s permission to uncover any third-party names. The court also ordered the government not to share or retain any material it cannot prove probable cause to “seize” for its investigation.

However, the court took fewer steps than MacAuley and Carrefour sought to protect their private content from government review. The court rejected the ACLU-DC’s suggestions that it appoint a neutral third party to review the material and prevent the government from receiving information irrelevant to its investigation, or that the government be required to use a court-approved search protocol for the personal accounts. As a result, all content and actions on the accounts, including private messages with friends and information about various events MacAuley and Carrefour organized and participated in, will be available to government investigators. The court also denied the account holders’ request to intervene formally, a ruling that hinders their ability to appeal.

More information about the case, including today’s order, can be found here:
https://www.acludc.org/en/cases/matter-search-information-associated-facebook-accounts-disruptj20-etc