unless it is specifically written down as such, that is the last assumption I would make.
I wouldn’t assume that at all. In fact, I’d be very surprised if that’s what actually happens.
Again: the government is not looking for “who.” They don’t have a list of names. They are look for fruits, evidence, or instrumentalities of a crime.
Doesn’t that seem over-broad to you? To answer a question you asked of another poster, I think I’m OK with them getting access to Zeb and Yitzak’s specific Google accounts – it’s like searching their specific homes. This warrant seems more like, we think there’s been a crime in this neighborhood, but we don’t know who did it, so we’re going to go search everyone’s house to see if we can find evidence of a crime.
I want to be perfectly clear here – I don’t think you’re taking one side or another, just providing information as it regards to the law, and I appreciate your expertise. I’m trying to understand whether this request is out of bounds legally speaking.
Distruptj20.org has not been accused of a crime, so why can all of their records be searched? If one of their users have been accused, I’m OK (I think) with a warrant to get information related to that user or to a specific IP address.
I don’t claim to know the facts here, but if the government demands that you provide the whole alphabet, and it says it is only going to seize A-C, but ends up keeping everything, why bother saying that only A-C are being seized? In your opinions, if everything is kept, isn’t it accurate to say that A-Z are being seized?
The government says that it has probable cause to believe that the storage space used by Distruptj20.org contains the fruits, evidence, or instrumentalities of a crime. In other words, to Dreamhost, the user is Distruptj20.org.
Thanks again for clearing this up. In your opinion, do you think this is a valid warrant? That is, if Dreamhost appeals, do you think they will be successful, or will they ultimately have to turn everything over?
In my opinion, it seems too broad, but I don’t know the case history. If you’d like, feel free to opine on whether you think it should be a valid warrant or not, but I’m mostly asking about the legality of it.
Here’s a pretty much current discussion (a lawyer Cardoza interviewed today at democracynow.org, because this went to court today).
Cardoza says, “We have seen the government make requests this broad, for instance, in the child photography context, where actually visiting a website is at least arguably capable of being a crime. In terms of this context, where the speech hosted on DisruptJ20.org was inarguably perfectly legal, we haven’t seen it before.”
I understand Bricker’s take on the DOJ’s view, but the DOJ seems weak on particularity. As this lawyer (and others) argue, this broad warrant gets very fishy around the idea of particularity. Here’s a definition from the 4th Amendment:
Particularity--"The requirement that warrants shall particularily describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to looking in places where the described object could be expected to be found.
(The quoted section's wording's a bit confusing--my own paraphrase--"Warrants shall particularly describe what is to be seized, this is to prevent "general searches" under them, and to prevent the seizure of articles outside the warrant's described items.")
The warrant sure seems like a general search--where is the limit on scope when there were 200 arrested, and 1.3 million visits to the website? Why doesn't the DOJ just go after the communications of the 200 people they rounded up in their dragnet? DreamHost would probably turn that info over w/o fuss.
Cardozo suspects the judge who signed off on the warrant was "not young", and may not've been aware of the scope. "If I’m a judge who doesn’t know an IP log from a Yule log, you know, I’m not going to understand the implications of what’s actually being sought here."
Ageism is an ugly bigotry.
There was a huge fuss, maybe more abroad than in the USA, when it was discovered the NSA and other agencies kept and had access to American’s phone-calls or at the least metadata of such calls, not to mention spying on foreigners’ communications, including foreign leaders.
When the fuss died away few noticed the data was still held.
Yes but they keep it in a special lockbox in Utah and only look at it when they have self-determined probable cause.
Present specific IP addresses instead of requesting a blanket search of people who have a reasonable expectation of privacy.
Can’t one argue that investigators have probable cause to believe that the Planet Earth contains the fruits, evidence, or instrumentalities of a crime, and thereby search & seize the lot? If there is no restriction on category, then we have no protection at all.
How can the government search for the <evidence> without also looking in every non-criminal household on the planet?
I HATE that lockbox.
The problem, as I understand it, is that they don’t know the specific IP addresses. They’re hoping the evidence they find in their search will give them that information. If you’ll allow my non-lawyering self one crappy analogy: imagine the cops knew that there was a party that happened every Thursday night at a particular house, and that at that party a drug dealer was present who was dealing drugs. They might obtain a search warrant to search the attendees of the party next Thursday, even thought they don’t know the identity of the drug dealer. That’s what they’re hoping to find when they execute the search warrant.
They have access to the entire investigative power of the NSA and FBI. If they wanted to, I have no doubt that they could get the addresses through other means. Which begs the question of exactly what they want a million users’ info for.
Aside from the obvious issue of scale with your analogy, I’d have as much trouble believing that a competent investigative agency couldn’t establish the identity of a drug dealer knowing where he is every Thursday night without pulling a raid.
The search of the server logs is intended to develop the list of specific IP addresses; these will then be used to subpoena the ISPs who own those addresses to provide DHCP assignment logs to determine which of their subscribers used those addresses.
Right now, the government does not have specific IP addresses. They have probable cause to believe the server contains the fruits, evidence, or instrumentalities of a crime.
As to your other comment: are you sure that users have a reasonable expectation of privacy in data they voluntarily expose to Dreamhost and to DisruptJ20.org ?
I don’t say you’re absolutely wrong, mind you, but my question is: how did you arrive at this conclusion? Do you understand, for example, that if the police kick down Aaron’s door without a warrant or probable cause, and search his house, the evidence they find is generally admissible against Ben, who does not live there, because Ben cannot vicariously assert Aaron’s Fourth Amendment rights?
With that in mind, can you explain why you believe Dreamhost can assert the Fourth Amendment rights of visitors to the site they host for DisruptJ20.org?
No.
But in this case, the government says, in effect, “Our request is sufficiently narrow: we want only the files owned and used by user DisruptJ20.org.”
That broad a search is not permitted because it does not describe with particularity the place to be searched. This search, says the government, does: the file systems and files controlled by user DisruptJ20.org on server space hosted by Dreamhost.
I think it’s a valid warrant in what I’m going to call “old school,” terms: it’s perfectly valid because that’s how things have always been done when searching houses and seizing ledgers, log books, or file folders.
But the problem with the information age is that many of the analogies start to break down when we try to map them from the physical world to the virtual world. For example, consider “search incident to arrest.” This doctrine says that if the police validly arrest you, they can search you. This makes good sense: they don’t want you carrying weapons or drugs into the jail; they want to be able to inventory your belongings to avoid accusations of theft or loss; they want to ensure their own safety.
And of course, if they find a baggie of contraband or a notebook of drug customer addresses and phone numbers, they can use that information to help prosecute you. It’s a warrantless search, but a permissible one under the Fourth Amendment.
Now consider what everyone has on their person these days: their smart phone. Traditional doctrine is what I described above, but a “search incident to arrest,” of a cellphone can expose mountains of data about you: social media postings, pictures, video, texts, e-books, banking contacts, stock portfolios, and the rest of modern life encapsulated.
That search is far more intrusive that the simple “search incident to arrest” that previous generations contemplated . . . but unless the doctrine is refined, the effects are vastly different.
That’s what’s happening here. The warrant’s requests, on its face, are unremarkable. But the information age represents unique challenges and it’s not always appropriate to simply analogize a house or a briefcase to a server or a smartphone; the amount of data on a server is orders of magnitude greater than what might have been seized years ago from a few file cabinets.
The courts are still struggling with the precise contours of these issues.
(Very useful and insightful post shortened to reduce the size of my reply)
Thanks again for your insight into this. I hope the courts come up to speed quickly because, as you say, someone’s cellphone may contain practically all of their life’s history on it, even more than you might find if you search their house with a warrant.