(Reuters) - The right to speak anonymously is well-protected by the First Amendment, whether you express your opinions on the printed page or on the Internet. But what about the right to read anonymously on the Internet? That’s not as firmly enshrined in legal precedent, which is why five anonymous Internet users are asking to intervene to block the Trump administration’s Justice Department from enforcing a controversial search warrant on the web-hosting provider DreamHost.
One of DreamHost’s clients is the website www.disruptj20.org, which describes itself as a loose nationwide collection of activists. Last December and January, the site served as a sort of clearinghouse for what it called “mass protests to shut down the inauguration of Donald Trump and … widespread direct actions to make that happen.” After President Trump’s inauguration, in which about 200 people were arrested, the website offered legal support and resources.
The Justice Department believes DisruptJ20 was “used in the development, planning, advertisement and organization of a violent riot that occurred in Washington, D.C.” during Trump’s inauguration. In July, prosecutors obtained a search warrant from a Superior Court judge in the District of Columbia, ordering DreamHost to provide a raft of electronic data about the website and its users.
When DreamHost raised questions about the scope of the search warrant, the Justice Department moved in D.C. Superior Court for an order to compel DreamHost to comply. On Aug. 11, DreamHost’s lawyers at Kilpatrick Townsend & Stockton filed the company’s opposition. According to the DreamHost brief, information demanded in the search warrant will enable the government to identify all visitors to the DisruptJ20 website, endangering their First Amendment rights of free association.
“Courts have specifically held that the government oversteps its authority when it seeks to obtain customer identities and records of activity in connection with protected speech, such as that involved here,” the DreamHost brief said. “This court should not permit the government to trample upon the privacy of the individuals interacting with the website and force DreamHost to produce the electronic information that would not only identify who they are, but specifically what each of these individuals viewed, read or the political content that they were interested in.”
By resisting compliance with the search warrant, DreamHost is promising to protect the anonymity of DisruptJ20 visitors. But in a motion to intervene filed on Monday, five of those users said they want to appear themselves in the case to “articulate to the court the reason why their identities should be protected against compelled disclosure.” They are, of course, not named in the motion to intervene, in which they are identified as Does.
The Does are represented by Paul Alan Levy of Public Citizen, who argued in a brief opposing enforcement of the DreamHost subpoena that the government “has no legitimate basis snooping into their identities,” and that “enforcing the subpoena to identify anonymous users who viewed that site would have an enormous chilling effect on the public’s right to surf the Internet and view political expression that they find of interest.”
In accompanying affidavits to block identifying information, the five anonymous DisruptJ20 visitors – none of whom was arrested at the inauguration – said that they visited the site because they wanted to read about how to engage in peaceful protests or how to organize their own nonviolent protests. Several of the Does attended the Trump inauguration or women’s marches the next day, but one, a journalist then living in Maine, claimed to have visited the site twice just to obtain information for articles.
“I do not believe the price of viewing the public information and political opinions shared on the Disruptj20 website should include being placed on some sort of enemies list of the Trump administration or having to endure questioning by law enforcement officials or federal prosecutors of why I looked at the Disruptj20 website,” the Doe journalist said.
“It seems reasonable that you should be able to browse the Internet without being identified to the government,” Levy told me Tuesday. “Just going to a page doesn’t make you a criminal.”
But as Levy explained, there’s not much precedent on whether website visitors have a First Amendment right to remain anonymous. The best legal articulation, by my read of his brief, came in a 2007 case involving a grand jury subpoena sent to Amazon in a federal investigation of tax fraud by a user book seller. Prosecutors wanted to find out the identity of the target’s customers. U.S. Magistrate Judge Stephen Crocker of Madison, Wisconsin, partly quashed the subpoena, holding that the prospect of “federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else” would lead Amazon customers to “abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived ‘enemies list.’”
Public Citizen’s brief mentions President Trump’s “intense intolerance for disagreement and … tendency to lash out with raw language and threats directed at political adversaries,” but as the Amazon case shows, the prosecutorial urge to collect information transcends any particular administration. This DreamHost case is going to produce important law.
A hearing on the government’s motion and DreamHost’s opposition is scheduled for Thursday. Levy said he plans to be there.