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Facebook Faceoff

Prosecutor withdraws warrant to search protestors’ social media account

Wednesday, March 15, 2017

A search of social media will not proceed after the Whatcom County Prosecutor withdraws a warrant hours before the matter would have been heard in court.
The prosecutor sought a warrant that would have allowed a search of a Facebook account associated with a local group protesting the Dakota Access Pipeline. But civil liberties attorneys argued the action was overbroad and involved the privacy of individuals with no association with that protest.

On Feb.11, the Sheriff’s Office assisted the Washington State Patrol in response to protestors who had blocked the northbound lanes of Interstate-5 south of Lakeway Drive in Bellingham. Law enforcement officials wanted information that might lead to the identity and prosecution of these individuals, and they believed social media might assist their investigation.

The withdrawal of the request for a warrant to search those accounts came after the American Civil Liberties Union filed a motion challenging the constitutionality of the warrant, which sought “messages, photos, videos, wall posts and location information” from the Bellingham No Dakota Access Pipeline Facebook page.

“The data sought could also have included private messages and other information related to an unknown number of people who merely interacted with the group via Facebook at some point during the 12 days covered by the warrant, a timeframe that includes a Bellingham protest against the Trump administration’s plans for the Dakota Access Pipeline,” ACLU attorney Doug Honig explained.

Some people may have just indicated they were interested in the topic and had no association with the planned protest or disruption of freeway travel, attorneys argued in their brief.

“We’re glad that our motion to quash motivated the Whatcom County Prosecutor to withdraw the unconstitutional warrant,” said La Rond Baker, staff attorney for the ACLU of Washington.

“Political speech and the freedom to engage in political activity without being subjected to undue government scrutiny are at the heart of the First Amendment, and overbroad warrants pose great risk to these core constitutional principles. Speech rights belong to all Americans, no matter where they are on the political spectrum, and the ACLU will continue to defend them regardless of their viewpoint.”

The Whatcom County Sheriff’s Department obtained the warrant seeking not only private information about the NoDAPL group’s political activity as encapsulated on its Facebook page, but also data related to an unknown number of people who merely interacted with the group via Facebook.

“The First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without government monitoring or interference,” Honig noted.

“When warrants target speech and activity protected by the First Amendment, courts must apply a heightened level of scrutiny in evaluating their legality. The ACLU challenges this warrant as an unlawful intrusion on all of these rights and asserts that upholding such a warrant would have a chilling effect on protected speech.”

The actions of these NoDAPL protestors included bringing children into the travel lanes of the interstate highway system, using pipe-covered chains to connect themselves to each other and a guard rail, and leaving motor vehicles unattended on the freeway, Sheriff Bill Elfo noted in reply.

“As a result of these illegal actions, the freeway was blocked for over an hour and a traffic back up extended for at least four miles,” Elfo said. “The State Patrol attributed five crashes, including one that involved a rolled over vehicle with a person trapped, to the actions of the protestors.”

Due to the unavailability of sufficient law enforcement resources, the State Patrol was unable to make arrests at the time of the incident, Elfo said.
“In the days following the incident, citizens complained of inconveniences, the inability to reach PeaceHealth St. Joseph’s Medical Center and other issues related to blocking the freeway,” he said.

The Sheriff’s Office was asked to assist in the investigation of this matter and to collect evidence of criminal conduct and identify potential perpetrators, Elfo said.

“As part of this investigation, detectives sought a search warrant for a social media account content that was known to display photographs of persons participating in the blockage of the freeway and other electronic data associated with this criminal activity. As part of the normal process of obtaining a search warrant, the sufficiency of probable cause contained within the affidavit in support of the warrant and the scope of the warrant application were reviewed by the Prosecuting Attorney,” the Sheriff said. “The affidavit in support of the search warrant and application was examined by a Superior Court judge who ultimately issued the warrant.”

“The decision of the local prosecutor to voluntarily withdraw the warrant is a demonstration of how this process is supposed to work,” said Brett Max Kaufman, a staff attorney in the ACLU’s Center for Democracy in New York.

“As all technology companies who receive warrants for customer information should do, Facebook notified the account owner of the request and promised not to turn over records until the owner had an opportunity to challenge it,” Kaufman explained. “The account administrator came to the ACLU for help, and we made sure the judge would understand the reach of the warrant and its constitutional flaws. Rather than prolong an unwinnable fight, Whatcom County backed down in recognition of its overreach.”

The ACLU’s motion characterized the warrant as an unlawful intrusion on First Amendment rights to free speech and association and asserted that upholding such a warrant would have a chilling effect on protected speech, Honig said.

“This is because the First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without government monitoring or interference,” he said.

“Had the warrant on Facebook been executed, it could have exposed private, sensitive information about the political views and opinions of individuals who had interacted with the page, along with images of political actions and other personal data, including location information,” Honig said.

ACLU attorneys also argued the warrant failed to meet the basic requirement under the Fourth Amendment that warrants be particularized, meaning that they must describe in detail items for which the government has probable cause to search.

“This requirement ensures government cannot rummage through someone’s personal effects, Honig said. “Further, when searches involve broad intrusions, such as searches of computers or electronic accounts like Facebook, the need for such limitations on warrants is especially great, courts have found. Although the Founders had neither Facebook nor the Internet, they would immediately recognize that the activity and speech at issue here is constitutionally protected.”

“The Sheriff’s Office has no interest in the political views of anyone involved and is not seeking the same,” Elfo noted. “Our purpose is to seek of electronic data that relates to chaotic, disruptive and criminal behavior. The Washington State Patrol is also investigating this matter.  Both agencies are working closely with the prosecuting attorney.

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