Federal prosecutors involved in the Inauguration Day rioting cases will be allowed to access the Facebook accounts of anti-Trump activists who challenged search warrants for their information, a judge has ruled.
The three Facebook accountholders aren't among the nearly 200 people facing criminal charges in connection with the Jan. 20 arrests. The American Civil Liberties Union of the District of Columbia had argued the warrants for their Facebook data were overbroad and that prosecutors shouldn't have broad access to account data that may include sensitive and personal information unrelated to the criminal investigation. The ACLU proposed having an outside, neutral party do the search instead.
Allowing the government to enforce the search warrants would chill political activists from engaging in protected speech online in the future, the ACLU said.
In an order dated Nov. 9 but released on Monday, DC Superior Court Chief Judge Robert Morin ruled that the government could conduct the searches, but with limits on the information they could get from Facebook and how they could handle that data. Prosecutors had already agreed to narrow their request to exclude the identities of people who contacted the accountholders or liked or friended them.
At issue are two individual accounts and one group page used to coordinate anti-Trump protests on Jan. 20, called "Disrupt J20." Under Morin's order, information about people who communicated with the individual and group page accountholders will be redacted, and the government will have to get the court's permission to see that information. For the Disrupt J20 page, the government will have to tell the judge how it plans to search the data, and can't do any searches without the judge's approval.
"Given the potential breadth, the Warrants in their execution may intrude upon the lawful and otherwise innocuous online expression of innocent users," Morin wrote. "Therefore, the court deems it appropriate in this case to implement procedural safeguards to preserve the First Amendment and Fourth Amendment freedoms at stake and ensure that only data containing potential incriminating evidence is disclosed to the government."
Morin wrote that the government established probable cause to access information about the two individual accountholders — Legba Carrefour and Lacy MacAuley — and if any personal information was "intermingled" with potential evidence, that was the consequence of their decision to store data with Facebook, a third-party company. However, the judge said the government hadn't established probable cause to see information about people who contacted the accountholders, so those individuals had a right to remain anonymous.
ACLU attorney Scott Michelman said in a statement that although Morin ordered restrictions to shield third-party communications, the judge "was not equally careful to protect our clients’ private and personal communications."
"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," Michelman said.
The ACLU had also asked the judge to allow the accountholders to formally intervene in the case, which would give them the right to appeal the judge's orders. The judge denied that request.
A spokesman for the US attorney's office in Washington declined to comment.
More than 200 people were arrested in downtown Washington on rioting charges on Inauguration Day, and criminal cases against 194 people are pending. The first jury trial is scheduled to begin later this week, and more trials — the defendants are being tried in small groups — are scheduled throughout 2018.