The Department of Justice is demanding that a web hosting company hand over information about 1.3 million people who merely visited an anti-Trump website.
Attorney General Jeff Sessions has obtained a warrant for the visitor logs, IP addresses, email addresses, email content, submitted photos and even the software running on the computers of anyone who clicked on DisruptJ20.org, a site that organized protests during Trump’s inauguration in January.
“That information could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution’s First Amendment,” the hosting company, DreamHost, wrote on its blog. “This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.”
“If you visited the site, if you left a message, [government officials] want to know who and where you are – whether or not you did anything but watch TV on inauguration day,” wrote Ken White, a criminal-defense lawyer and former assistant U.S. attorney, in a blog post. “This is chilling, particularly when it comes from an administration that has expressed so much overt hostility to protesters, so relentlessly conflated all protesters with those who break the law, and so deliberately framed America as being at war with the administration’s domestic enemies.”
Many people are likening this Big Brother-like behavior to George Orwell’s 1984. And it certainly does recall the novel’s dystopian surveillance state. But at Lacey & Larkin Frontera Fund, we’re reminded of a real-life event: the time Sheriff Joe Arpaio did the exact same thing.
The outcome in that situation could give us a clue as to what will happen in the DOJ case.
Our organization’s founders, Michael Lacey and Jim Larkin, owned Phoenix New Times, which for years was a watchdog over the sheriff’s misdeeds. The newspaper published exposés of Arpaio’s racial profiling, the abuses and even deaths in his jails, his hidden commercial property investments, and much more.
In retaliation for this criticism (and for the publication of Arpaio’s home address), Arpaio – along with then-Maricopa County Attorney Andrew Thomas and special prosecutor Dennis Wilenchik – sent a grand jury subpoena to the New Times.
The subpoena demanded the identity, purchasing habits, and browsing history of anyone who looked at any New Times story, review, listing or advertisement between 2004 and 2007.
Instead of giving in to the subpoena, Lacey and Larkin wrote an article calling it “a breathtaking abuse of the United States Constitution.”
They were subsequently arrested and thrown in Arpaio’s jails. Following a national outcry, they were released the following day and initiated a lawsuit.
In its 2012 ruling in the case, the Ninth Circuit Court of Appeals wrote: “It is hard to conceive of a more direct assault on the First Amendment than public officials ordering the immediate arrests of their critics. And, in this case, there was nothing subtle about their efforts to stifle the New Times.”
Just as Lacey and Larkin resisted the subpoena, DreamHost is also resisting the DOJ’s warrant. The company’s lawyers have filed legal arguments opposing the DOJ’s demand.
We’re optimistic that, just as the Ninth Circuit Court ruled in the Arpaio case, the D.C. Superior Court will rule that the DOJ’s effort to seize the private information of citizens who disagree with the government is a blatant assault on the First Amendment.