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A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2017 Federal Search Warrants and Nondisclosure Orders Lead to Legal Action; DOJ Changes Gag Order Practices n 2017, broad federal search warrants, as well as from disclosing the fact that it had received such a request. nondisclosure orders preventing technology and social On Oct. 12, 2017, the Floyd Abrams Institute for Freedom of media companies from informing their customers that their Expression at Yale Law School and 20 First Amendment Scholars, information had been handed over to the government, led to including Silha Center Director and Silha Professor of Media legal action and raised concerns from observers. However, Ethics and Law Jane Kirtley, fi led an amici brief in response Ithe U.S. Department of Justice (DOJ) also changed its rules on the to the ruling, explaining that National Security Letters (NSL) gag orders, leading a large technology company to drop its lawsuit issued by the FBI are accompanied by a nondisclosure order, against the agency regarding the orders. which “empowers the government to preemptively gag a wire or In 2017, the DOJ fi led two search warrants seeking extensive electronic communication service provider from speaking about information from web hosting company DreamHost and from the government’s request for information about a subscriber.” Facebook in connection to violent protests in Washington, The brief contended that these orders constitute prior restraints D.C. during President Donald Trump’s January 20 inauguration in violation of the U.S. Constitution and U.S. Supreme Court festivities. On Aug. 24, 2017, District of Columbia Superior precedent. On the same day, the Reporters Committee for Court Chief Judge Robert Morin ordered DreamHost to comply Freedom of the Press (RCFP), along with 20 media organizations, with a DOJ search warrant seeking email addresses and other fi led a separate amici brief, in which they also contended that the information on individuals who visited www.disruptj20.org, nondisclosure orders constitute prior restraints. a website used to organize protests against President Donald Finally, on Oct. 19, 2017, the DOJ signifi cantly limited the Trump. In the order, Morin also emphasized that the government imposition of gag orders by DOJ attorneys and agents that barred must provide details of a minimization plan to limit violations of companies from informing their customers that their electronic innocent third parties’ First and Fourth Amendment rights, which information was turned over to the government. Following the he reemphasized in a separate September 15 order. On October 10, changes, Microsoft announced that it was dropping its lawsuit Morin allowed DreamHost to redact some identifying information against the DOJ asking a federal judge to strike down the portions about visitors to www.disruptj20.org until the government could of the Stored Communications Act (SCA), a provision of the demonstrate that the information was related to criminal activity. Electronic Communications Privacy Act (ECPA), allowing the On Sept. 28, 2017, the American Civil Liberties Union (ACLU) protective orders. 18 U.S.C. § 2705(b). fi led a motion to quash or narrow three DOJ search warrants that were also tied to the inauguration day protests. The warrants D.C. Judge Orders DreamHost to comply with DOJ Warrant, requested information concerning three Facebook users’ Later Places Limitations on Warrant accounts, including the names and personal information of On Aug. 24, 2017, District of Columbia Superior Court Chief 6,000 users who “liked” an antiTrump Facebook page operated Judge Robert Morin ordered Los Angelesbased webhosting by one of the users. The DOJ announced on October 13 that it company DreamHost to comply with a U.S. Department of was dropping its request for the names of 6,000 users, but was Justice (DOJ) search warrant seeking email addresses and other still pursuing other information under the search warrants. information on individuals who visited www.disruptj20.org, In a November 9 opinion, Morin required Facebook to redact a website used to organize protests against President Donald personally identifying information of all third parties tied to the Trump. On September 15, Morin wrote an additional order three accounts, as well as requiring the DOJ to follow several reiterating his requirement that the government “present a procedural safeguards to ensure the privacy and First Amendment minimization plan by which its review of the data and information rights of third parties related to the Facebook accounts. Facebook produced by DreamHost would not include, to the extent had previously fought a DOJ gag order preventing the company possible, data or information of lawful activity not within the from alerting the users of the accounts that the DOJ was seeking scope of the [w]arrant.” Finally, on October 10, Morin limited the their information, which the government later dropped. information the DOJ could obtain through the warrant, allowing In a July 17, 2017 ruling, the U.S. Court of Appeals of the Ninth DreamHost to redact some identifying information about visitors Circuit upheld the constitutionality of 18 U.S.C. § 2709(a),(c), to www.disruptj20.org, though still allowing the disclosure of which authorizes the Federal Bureau of Investigation (FBI) to other information in the warrant. prevent the subject of an administrative subpoena or search warrant, usually an electronic communication service provider, Search Warrants, continued on page 3 Inside This Issue Fall 2017: Volume 23, No. 1 1 Federal Search Warrants and Nondisclosure Orders Lead to 40 Civil Rights Organizations, Federal Agency, and House of Legal Action; DOJ Changes Gag Order Practices Representatives Raise Different Issues Regarding Searches Cover Story at U.S. Borders Searches and Seizures 11 Federal Judge Blocks Canadian Supreme Court Order Requiring Google to Delist Search Results 43 Minnesota Supreme Court Begins Livestreaming Video of Prior Restraints Oral Arguments Cameras in Courtroom 14 News Organizations and Journalists Face High-Profi le Defamation Lawsuits 44 Media Groups Allowed to Join Lawsuit over Access to Documents in Wetterling Investigation; Dispute Expands to Defamation over Half the Case File 21 Attorney Charles Harder Continues Attacks on News Access Websites by Filing Defamation Suits 47 Update: University of Minnesota Regents Investigation Fails Defamation to Uncover Leaker of Information to KSTP-TV 24 EPA Targets Journalist for “Misleading Story”; Ohio Reporter’s Privilege Photographer Shot by Police; Charge Dropped Against West 48 No More Monkey Business: Settlement Ends “Monkey Virginia Photographer Selfi e” Copyright Lawsuit Endangered Journalists Copyright 26 The United States, the European Union, and the Irish High 49 32nd Annual Silha Lecture Addresses Freedom of the Press Court Wrangle Data Privacy Concerns During the Trump Presidency Special Report Silha Center Events 38 Utah District Court, Minnesota Court of Appeals Address 51 Helen Silha, Beloved and Constant Supporter of the Silha First Amendment Questions Center, Passes Away in October 2017 First Amendment SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW SCOTT M EMMEL SILHA BULLETIN E DITOR BRITTANY R OBB SILHA R ESEARCH A SSISTANT ASHLEY T URACEK SILHA R ESEARCH A SSISTANT ELAINE H ARGROVE SILHA C ENTER S TAFF 2 Search Warrants, continued from page 1 information related to the accounts established to host On January 20, six police offi cers were injured in protests [www.disruptj20.com],” which included names and addresses, during President Trump’s inauguration, according to The payment information, and domain registration details. The full Washington Post on July 8. The riots caused tens of thousands of warrant is available online at: https://www.dreamhost.com/blog/ dollars of damage to vehicles and store windows. In April 2017, wpcontent/uploads/2017/08/DHSearchWarrant.pdf. the federal government charged 234 people with felony rioting On July 28, 2017, U.S. Attorney for the District of Columbia in connection with the protests. A 31yearold Florida man was Channing Phillips (the government), fi led a motion in the D.C. sentenced to four months in jail after pleading guilty to two Superior Court for DreamHost to “show cause why [it] should felonies: assault on a police offi cer and not be compelled to comply with [the] warrant.” According to inciting a riot. Multiple other individuals the motion, the government sent a copy of the search warrant COVER STORY pled guilty to misdemeanor charges, to DreamHost on July 14 and 17 via email and served a copy while some charges were dropped. As to the company’s location in California. On July 19 and 20, the the Bulletin went to press, other individuals remained on trial, government requested that DreamHost “begin an immediate including freelance photographer Alexei Wood, who livestreamed production of materials in response” to the warrant. However, on the “J20” protest. July 21, Raymond Aghaian, an attorney representing DreamHost, About one week after the inauguration day riots, the federal sent an email to the government discussing several concerns, government, as part of its investigation, served DreamHost including “some uncertainty [in] the language” of the warrant with a grand jury subpoena, which called for seven categories and that the D.C. Code does not apply because DreamHost’s of information related to www.disruptj20.org. The
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