SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CRIMINAL DIVISION SPECIAL PROCEEDINGS

IN THE MATTER OF THE SEARCH Special Proceedings Nos. 17 CSW 658

OF INFORMATION ASSOCIATED l7 CSW 659
WITH FACEBOOK ACCOUNTS 17 CSW 660
DISRUPTJ 20, LACYMACAULEY,

AND LEGBA.CARREFOUR THAT Chief Judge Robert E. Morin

IS STORED AT PREMISES

CONTROLLED BY ACEBOOK, INC.

 

 

ORDER
This matter comes before the court pursuant to the government?s motion to show cause
seeking to compel Facebook, Inc. (?Facebook?) to comply with three search warrants issued by
the court on February 9, 2017, Nos. 17 CSW 658, 17 CSW 659, 17 CSW 660 (hereinafter, the
?Warrants? or ?February 2017 Warrants?), and Facebook?s opposition thereto, along with the
motions to intervene filed by Lacy Macauley, Legba Carrefour, and Emmelia Talarico

(collectively, ?the account holders?) and the government?s opposition thereto.
1. BACKGROUND

On February 9, 2017, the court (Wertheim, J.) authorized three separate search warrants1
for the Facebook accounts Disruth 20, lacymacauley, and legbacarrefour, having found probable
cause that each account contained evidence of violations of DC. Code 22-1322 (rioting or

inciting to riot) that occurred on January 20, 2017, in connection with the presidential

 

The Warrants were issued pursuant to 18 U.S.C. 2703 2703 and 2703
of the Stored Communications Act 18 U.S.C. 2701, et seq., which
authorizes the government to compel disclosure by a service provider, here Facebook, for all
records and all email communications in a particular account. An SCA warrant is issued using
the applicable state warrant procedures (id. 2703 see D.C. Super. Ct. Crim. R. 41), and can
generally be executed without notice to the subscriber. Id. 2703 

inauguration (?January 20 riots?). At the same time, the court issued three non-disclosure orders
directing Facebook to temporarily delay notice of the Warrants to the account holders.

In response, Facebook withheld production and challenged the apprOpriateness of the
non?disclosure orders. After hearing argument by both parties, the court declined to lift the non-
disclosure orders. Facebook appealed the decision to the Court of Appeals, and oral argument
was scheduled for September 14, 2017. On September 13, 2017, at the government?s unopposed
request, this court issued an order vacating the non-disclosure orders associated with each of the
subject Warrants. Facebook then dismissed its appeal as moot.

Shortly thereafter, Facebook notified the account holders of the existence of the Warrants
and provided them with an opportunity to bring their own challenge. The account holders moved
to intervene and quash or narrow the Warrants on September 28, 2017. The government filed its
opposition on October 4, 2017, arguing that the account holders? motion is premature because
the Warrants have not yet been executed, and therefore, the account holders have no right to
bring a challenge. The account holders filed their declarations and reply on October 10, 2017,
and the court heard argument by all parties on October 13, 2017. To date, Facebook has not
produced any data to the government, contending that it should not be required to comply until
the account holders? motions are fully adjudicated.

acebook Search Warrants

It is undisputed that the Warrants are directed to two individual Facebook accounts (?the
individual accounts?) and one Facebook Page (?the Page?), for which the court found probable
cause contained evidence of alleged crimes committed in the District of Columbia in violation of
DC. Code 22-1322 by individuals for which the Grand Jury has already indicted over 200

people.

Execution of the Warrants will require Facebook to provide the government with
extensive information for each targeted account, including the contact and personal identifying
information for each account holder, and all profile information, activity logs, wall posts, notes,
comments, photos, videos, friend lists, organizers and attendees for sponsored events, groups and
networks joined, Facebook searches, deleted data, rejected friend requests, blocked friends,
chats, live streams, and direct and group Facebook Messenger communications between the
account holders and those with whom they communicated. Data to be produced under the
Warrants is limited to approximately three months (between November 1, 2016 and February 9,
2017).

Some of the information sought is not publicly available and access to communications
on the individual accounts and the Page is limited to particular individuals. In addition, based on
proffers by the account holders and other third parties, the data may include deeply personal
information family pictures, details of romantic relationships, domestic violence
encounters, and communications regarding medical and history) and contain
protectable political speech and association political commentary, affiliations, names and
pictures of event organizers and attendees) unrelated to the January 20 riot.

The Warrants, as issued, did not include any limiting safeguards to explain how the
government would compel the production of data containing criminal evidence, or how the
government intended to search the data received. Rather, the Warrants indicated that, after the
government receives all data for the targeted accounts, it would only ?seize? data relevant to

information that it believes evidences the alleged crimes, as set forth in the supporting

Affidavits.2 Subsequently, the government modified its request and indicated that it will remove
any non-pertinent information from its possession.

Accordingly, in line with the traditional two-step process, the government requests that
all information responsive to the Warrants be disclosed, but commits that it will ultimately not

retain material non?pertinent to its investigation.
II. ANALYSIS

A. The February 2017 Warrants

The First Amendment broadly protects the right to engage in anonymous political speech
and associational activity. See McIntyre v. Ohio Elections Comm 514 US. 334, 341 (1995)
author's decision to remain anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the freedom of speech protected by
the First Amendment?); NAACP v. Alabama, 357 US. 449, 462 (1958) (?compelled disclosure
of affiliation with groups engaged in advocacy may constitute [an] effective restraint on
freedom of association?). First Amendment freedoms are no less robust on the internet. See
Reno v. ACLU, 521 US. 844, 870 (applying the First Amendment to the internet); Solers, Inc. v.
Doe, 977 A.2d 941, 950-51 (DC. 2009) internet speech in blogs or chat rooms in
some instances can become the modern equivalent of political pamphleteering?) (citation
omitted); see also Bland v. Roberts, 730 F.3d 368, 385-86 (4th Cir. 2013) (holding that ?liking? a
Facebook page or wall post is a form of protected speech). Protecting a speaker?s right to

conceal their identity is grounded in an ?honorable tradition of advocacy and dissent,? McIntyre,

 

2 Because the February 2017 Warrants were issued as part of a Grand Jury investigation,
the Affidavits are sealed under D.C. Super. Ct. Crim. R. 6 and have not been disclosed (full
or redacted) to Facebook or the account holders.

4

514 U.S. at 357, and necessary to ensure that public debate is ?uninhibited, robust, and wide-
open.? New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

The Supreme Court has determined that, when the government?s investigation intrudes on
First Amendment activity, the requirements of the Fourth Amendment must be applied with
?scrupulous exactitude.? Stanford v. Texas, 379 U.S. 476, 485 (1965); accord, Maryland v.
Macon, 472 U.S. 463, 468 (1985). The right to be free from government intrusion is preserved
even where the government does not intend to cause specific harm. See v. Int'l Union, 485
U.S. 360, 367 n.5 (1988). Hence, the government must show that it has a compelling interest to
justify even a subtle interference with an individual?s ability to freely associate. See NAACP,
357 U.S. at 463.

Electronic searches can be time?consuming and raise logistical difficulties for law
enforcement tasked with locating specific criminal evidence amidst all information in a given
storage medium. In recognition of these difficulties, Superior Court Criminal Rule 41 
presumptively authorizes a two-step process by which law enforcement may conduct ?a later
review of the media or information consistent with the warrant.?4 This rule is substantially

identical to its federal counterpart, Fed. R. Crim. P. 41 as amended in 2009.5

 

3 Super. Ct. Crim. R. 41 sets forth the procedural requirements for obtaining a
warrant seeking electronically stored information.

4 warrant under this rule may authorize the seizure of electronic storage media or the
seizure or copying of electronically stored information. Unless otherwise specified, the warrant
authorizes a later review of the media or information consistent with the warrant. The time for
executing the warrant in this rule refers to the seizure or on-site copying of the media or
information, and not to any later off-site copying or review.? Super. Ct. Crim. R. 41 

5 Rule 41 approves a two-step process for the search and seizure of
electronically stored information. The Advisory Committee Notes further discuss the need for
such a process:

Courts have generally agreed that a two?step process is appropriate for searches of
computers or hard drives, often containing substantial information, to ensure that evidence is
properly preserved.6 See, e. In the Matter of the Search of Info. Associated with
[redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc, 13 F. Supp. 3d 157,
166 (D.D.C. 2014) (?In re Apple Account?) (authorizing government?s seizure of defendant?s
home computer and digital media for a subsequent off-site electronic search where there was a
?fair probability? of finding evidence on those devices) (following United States v. Schesso, 730
F.3d 1040, 1046 (9th Cir. 2013); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (?The
federal courts are in agreement that a warrant authorizing the seizure of a defendant?s home
computer equipment and digital media for a subsequent off-site electronic search is not
unreasonable or overbroad, as long as the probable-cause showing in the warrant application and
affidavit demonstrate a ?sufficient chance of finding some needles in the computer haystack.??)

(quoting United States v. Upham, 168 F.3d 532, 535 (lst Cir. 1999)).

 

Computers and other electronic storage media commonly contain such large
amounts of information that it is often impractical for law enforcement to review
all of the information during execution of the warrant at the search location. This
rule acknowledges the need for a two-step process: officers may seize or copy the
entire storage medium and review it later to determine what electronically stored
information falls within the scope of the warrant . . . [E]lectronic storage media
commonly contain such large amounts of information that it is often impractical
for law enforcement to review all of the information during execution of the
warrant at the search location.

Fed. R. Crim. P. 41 Advisory Committee?s Note (2009).

6 Searches of electronic storage media commonly require ?time-consuming electronic
forensic investigation with special equipment? to account for the countless ways of hiding
evidence on the device. United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017). Because the
amount of information make it impractical for law enforcement to search the device at the
location where it was seized, Rule 41 allows officers to copy the entire medium and
review it later off-site to both enable execution of the search and prevent the destruction of
information on the computer. See United States v. Stabile, 633 F.3d 219, 234 (3d Cir.

2011) (stating that the ?practical realities of computer investigations preclude on-site searches?).

6

The court acknowledges the usefulness of a two-step process. At the same time, it is
certainly true that electronic searches may present increased risks to the individual's right to
privacy and other constitutional interests ?as technological advances enable law enforcement to
monitor and collect large volumes of electronic communications and other data.? In re Apple
Account, 13 F. Supp. 3d at 166; see United States v. Blake, 868 F.3d 960, 973-74 (11th Cir.
2017) (noting that application for an individual?s entire Facebook account would unnecessarily
disclose to the government ?virtually every kind of data?). Courts have acknowledged that, with
such large disclosures of data, the government will inevitably come across unrelated material that
exceeds the scope of the warrant. See Andresen v. Maryland, 427 US. 463, 482 n.11 (1976) (?In
searches for papers, it is certain that some innocuous documents will be examined, at least
cursorily, in order to determine whether they are, in fact, among those papers authorized to be
seized?); United States 1). Sealed Search Warrant, 2017 US. Dist. LEXIS 125792, at *13 (ND.
Ala. Aug. 8, 2017) (acknowledging that ?some perusal? is generally necessary to determine the
?relevance of documents to the crime?) (quoting United States v. Slocum, 708 F.2d 587, 604
(11th Cir. 1983)). As ?over?seizing? is considered to be an ?inherent part of the electronic search
process,? it often provides the government with ?access to a larger pool of data that it has no
probable cause to collect.? In re Search of Info. Associated with the acebook Account
Identified by the Username Aaron.Alexis, 21 F. Supp. 3d 1, 8 (D.D.C. 2013) (?AaronAlexis?).

Today?s ever-accelerating technological advances are transforming the way people
interact with the world around them, often leaving the user?s privacy expectations trailing slowly
behind. The interactive nature between digital devices and use of social media means more
personal details that were once kept in private diaries, or computers, are now being stored with

third party data storage companies. The natural consequence of living in a highly connected age,

however, is the substantial likelihood that a subscriber?s intimate personal information can be
discovered by an unintended recipient. Privacy is an evolving concept in the online context,
where subscribers are often free to choose their own privacy settings for their online accounts,
ranging from completely private (accessible only to user) to limited (between user and specific
individuals) to public. This analysis gets even more complicated when determining how much
government access should be afforded.7 Pervasive use of ?cloud technology and social media,
combined with growing online storage capacities,8 creates ?a serious risk that every warrant for
electronic information will become, in effect, a general warrant, rendering the Fourth
Amendment irrelevant.? In re Cunnins, 770 F. Supp. 2d 1138, 1151 (W.D. Wash. 2011); accord,
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en
banc)

Due to the individual interests implicated in electronic searches? particularly those
searches involving lawful political activity and expression?the Supreme Court has tasked
judicial officers with the responsibility of ensuring that electronic searches ?are conducted in a
manner that minimizes unwarranted intrusions upon privacy.? Andersen, 427 U.S. at 482 n.11.
As a result, courts have wrestled with how to balance an individual?s right to engage in private
online expression with the government?s ability to prosecute criminals, especially where
probable cause has been established that a particular electronic device or online account may

contain evidence of a criminal offense. See, In re Info. Associated with @gmail.com, 2017

 

7 Although unresolved in the District of Columbia, the Sixth and Ninth Circuits have
afforded electronic communications the same Fourth Amendment privacy protections as their
of?ine counterparts. See In re Google Account, 2017 U.S. Dist. LEXIS 130153, at *17 n.13
(citing United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)); In re Grand Jury
Subpoena, 828 F.3d 1083, 1090 (9th Cir. 2016).

8 For example, ?a single gigabyte of storage space is the equivalent of 500,000 double-
spaced pages of text.? In re 770 F. Supp. 2d at 1144.

8

US. Dist. LEXIS 130153, at *77 (D.D.C. July 31, 2017); United States v. Search ofInfo.
Associated with Fifteen Email Addresses, 2017 US. Dist. LEXIS 159535, at *19-23 (M.D. Ala.
Sept. 28, 2017) (?Fifteen Email Addresses?); In re Search 0f1nf0., 212 F. Supp. 3d 1023, 1038
(D. Kan. 2016). This means that determinations must be made on a case-by-case basis. Schesso,
730 F.3d at 1046.

The risk for disclosure of private political speech and association of innocent persons to
the government cannot be ignored and therefore additional protections are necessary. Various
courts have agreed that, although not required by the Fourth Amendment, incorporating additional
protections into electronic search warrants are appropriate to minimize the possibility of abuse by the
government. See In re Search 0f1nf0., 212 F. Supp. 3d at 1038 (acknowledging ?that a judge may have
the authority to impose reasonable ex ante instructions?); United States v. Christie, 717 F.3d 1156, 1 166-
67 (10th Cir. 2013) (discussing that the particularity requirement may or may not require limitations ex
ante); In re Search. Warrant, 71 A.3d 1 158, 186 (Vt. 2012) (rejecting ?any blanket prohibition on ex ante
search warrant instructions?) (?Vt Search Warrant?); United States v. Hill, 459 F.3d 966, 976-77 (9th
Cir. 2006) look favorably upon the inclusion of a search protocol; but its absence is not fatal?).

In some circumstances, restrictions have been viewed as ?essential to meet the particularity requirement
of the Fourth Amendment,? especially where, as here, the search involves nonresponsive information
intermingled with relevant evidence. Vt. Search Warrant, 71 A.3d at 1 184. In fact, the federal courts in
the District of Columbia have often required the government to implement search protocols into its
warrant applications to minimize the risk that non?pertinent data is discovered. See, In re Search of
Apple iPhone, 31 F. Supp. 3d 159, I64 (D.D.C. 2014) (?Apple iPhone?) (requiring the government to
explain how it intends to conduct its search and deal with issue of intermingled documents); In re Search
of ODYS LOOX Plus Tablet, 28 F. Supp. 3d 40, 46 (D.D.C. 2014) (?No sophisticated search should occur

without a detailed explanation of the methods that will be used, even if the explanation is a technical one,

and no search protocol will be deemed adequate without such an explanation?); Aaron.Alexis, 21 F.
Supp. 3d at 11-12 (outlining non?exhaustive minimization plan for electronic searches).9

Although the online presence of individuals is more prevalent, current technological
capabilities allow law enforcement in some circumstances to execute electronic searches of
online email and social media accounts in a more targeted manner than is possible on a hard
drive or computer. See Fifteen Email Addresses, 2017 US. Dist. LEXIS 159535, at *16-18
the main content?emails?by date or sender or recipient or even by keyword would
be much easier than sorting data stored on a hard drive?); Apple iPhone, 31 F. Supp. 3d at 161
(?By using search tools, there is also the potential for narrowing searches so that they are more
likely to find only the material within the scope of the warrant?); In re A Warrant forAll
Content Other Info. Associated with the Email Account Gmail. com Maintained at
Premises Controlled by Google, Inc, 33 F. Supp. 3d 386, 394 (S.D.N.Y. 2014) (?Indeed, in
many cases, the data in an email account will be less expansive than the information that is
typically contained on a hard drive?); see also Aaron.Alexis, 21 F. Supp. 3d at 11 
premise . . . that law enforcement ha[s] to open every file and folder to search effectively may
simply no longer be true?). Unlike searches of computers or hard drives, ?the means of hiding
evidence . . . [through] obscure folders, misnamed files, [or] data[, is] not currently

possible in the context of a Facebook account.? Blake, 868 F.3d at 974.10 In fact, for Facebook

 

9 The search protocols included: (1) limiting searches to specific keywords or between
particular recipients; (2) appointing a special master to screen the responsive information for
relevance and privilege; (3) setting up a filter group or taint team to review the information for
relevance and privilege; (4) waive reliance on the plain-view doctrine; and (5) the incorporation
of search protocols designed to reveal only the information for which the government has
probable cause to seize. Aaron.Alexis, 21 F. Supp. 3d at 11-12.

'0 The variety of services linked to an e-mail account (email storage, calendar, pictures,
files, videos, cloud capabilities) can provide ?more ways to hide things . . . than on Facebook,?
but still less than a hard drive. Fifteen Email Addresses, 2017 US. Dist. LEXIS 159535, at 17.

10

account searches, ?the government need only send a request with the specific data sought and
Facebook will respond with precisely that data.? Id. Such requests can feasibly be narrowed to
particular individuals suspected of taking part in the alleged crime, or where unknown, limiting
data production by types of files or communication topics. Fifteen Email Addresses, 2017 U.S.
Dist. LEXIS 159535, at *22; United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006).

There are circumstances in this case which allow the court to consider limitations on the
government?s search while also protecting its legitimate need to prosecute criminal activity.
Here, the information sought by the February 2017 Warrants has been preserved by Facebook so
that there is no risk of its destruction. In addition, by agreement of the government, the account
holders and other third parties have been provided notice and an opportunity to present argument
on the issue. And, finally, Facebook currently has the technological capabilities to enable
execution of the Warrants in a manner that also protects innocent users? privacy and First
Amendment interests.

Based on the current proffers, execution of the Warrants will produce to the government
a variety of data and communications associated with the two individual accounts and the Page.
Any evidence in the production of data will likely be co-mingled with personal information and
otherwise protected political and associational material, implicating the privacy and First
Amendment rights of the account holders and other third parties who interacted or
communicated with the targeted accounts. Given the potential breadth, the Warrants in their
execution may intrude upon the lawful and otherwise innocuous online expression of innocent
users. Therefore, the court deems it appropriate in this case to implement procedural safeguards
to preserve the First Amendment and Fourth Amendment freedoms at stake and ensure that only

data containing potential incriminating evidence is disclosed to the government.

B. Procedural Safeguards

As this court has previously stated in a similar context, while the government has the
right to execute its warrants, it does not have the right to rummage through the information
contained on the Facebook accounts and discover the identity of, or access communications by,
individuals not participating in alleged criminal activity, particularly those persons who were
engaging in protected First Amendment activities. In the Matter of the Search of
That Is Stored at Premises Owned, Maintained, Controlled, 0r Operated by
DreamHost, No. 17 CSW 3438, at *1 (DC. Super. Ct. Oct. 10, 2017) (?DreamHost?).

The Warrants that are directed to the two individual Facebook accounts are
distinguishable from the Facebook Page. The Page is similar to the website this court addressed
in DreamHost, with multiple persons having access to, and communicating through, a common
forum. See id. In contrast, the individual accounts are more analogous to an email account
which historically has been subject to authorized search warrants without limitations, together
with other stored data, some of which is intended to be publicly available and some of which is
intended to be private.

Because of the different nature of the Page and the individual accounts, the government?s
search of each must be tailored to the nature of the data being stored and account for what was
intended to be private and that which was not. Accordingly, the court sets forth protections that
must be adhered to in searching the Page, followed by the protocols for searching the individual
accounts. Law enforcement will be able to feasibly execute these safeguards based on

Facebook?s technological capabilities.

 acebook Page (Disrupt/20)

In line with the government?s representations at the October 13 hearing, the
government?s request for information relating to the Page has been narrowed to (1) exclude from
production the identities of any individuals who liked or followed the Page, and (2) limit the
production of any photographs uploaded (between January 20, 2017 and February 9, 2017).

The government also agreed to narrow its warrant for the Page by implementing the
search protocol ordered by this court in DreamHost, No. 17 CSW 3438. In accordance with the
Dreamhost order, the government must adhere to the following safeguards:

1. File a report with the court, ex parte and under seal,ll explaining the government?s
intended search protocols designed to uncover only that data and information that
evidences the alleged crimes that serve as the basis for the Warrant at issue;

2. If the court approves the protocols, the government may only conduct its search on a

redacted data set that omits non-account holder identifying information;'2

 

The court determines that it is appropriate for the government to submit its report ex
parte and under seal because the government?s criminal investigation is ongoing and may be
hindered by public disclosure at this time.

12 In a subsequent filing, dated October 20, 2017, Facebook informed the parties and the
court that it currently lacks the technology to automatically redact user identification
information, or separate communications, postings, etc. for which the privacy setting was
accessible to the general public when made. See Facebook Tech. Capabilities 1-2. It is beyond
dispute that persons who post information or communicate publicly would not have a reasonable
expectation of privacy protectable by the Fourth Amendment. Thus, if it were technologically
possible, the court would order that Facebook provide the ?public? data to the government
without limitation. Yet, this is not an option given the technological limitations proffered by
Facebook.

Nevertheless, Facebook has indicated its willingness to manually redact the user
identification information set for private, but that effort would likely take three weeks. Id. Upon
completion of any redactions, as discussed at the October 13 hearing, Facebook shall produce to
the government a redacted data set?i.e., all information for each account that is responsive to
the Warrants, having manually redacted any identifying information of all persons?other than
Facebook account holders?who communicated with an individual account or the Page at issue.

13

3. Upon completion of review, the government must file with the court, ex parte and under

seal, an itemized list of the materials it believes evidences a violation of DC. Code 22-

1322, explaining how such materials are relevant to its investigation, its basis for

removing any redactions, and how it will permanently remove from its possession any

non-pertinent data; and
4. Only upon a finding by the court that the requested information is evidence of criminal

activity, as described in the Warrant for which this court has found probable cause, may
the government obtain any un?redacted information, such as the identity of a third party
user.

DreamHost, No. 17 CSW 3438, at *5-10. The government shall not begin its review of the

redacted materials provided by Facebook until the court has approved the government?s proposal

and authorized the government to begin its detailed review of the redacted materials.

Individual Accounts (Lacymacaulev and Legba.Carrefour)

At the October 13 hearing, the government indicated that it seeks to conduct a ?front-to-
back? (rather than ?key word?) search with respect to the individual accounts. The government
also narrowed the information sought by l) excluding from production the list of friends of an
individual account, (2) excluding from production the identities of any individuals who liked or
communicated with an individual account, and (3) limiting the production of all photographs
uploaded to a particular individual account (between January 20, 2017 and February 9, 2017).

Because the communications and records sought relate to specific individuals, and the
government has established probable cause as to those individuals, the government is authorized

to review the communications and postings in the individual accounts. Having already

 

Such redactions shall remain in place until such time as the court in the exercise of its discretion
directs Facebook to remove any of those redactions.

l4

established probable cause to believe that criminal activity is likely to be found in the individual
accounts, the government is entitled to review the material and determine for itself whether, and
to what extent, there is evidence of criminal activity.

Assuming that any alleged evidence is intermingled with unrelated information, that
intermingling exists because the account holders chose to store their data with a third party,
Facebook, in that manner. This is distinguishable from the information concerning persons
whose information is sought due to their lawful interaction with the targeted accounts. Probable
cause has not been established with respect to these individuals and thus they are entitled to
remain anonymous.

To ensure that the identities of innocent persons are not revealed, the government must
conduct its review in accordance with the following procedures:

1. Facebook shall redact any identifying information of persons to whom Facebook
Messenger communications are sent, persons who liked or friended a particular
account holder, and other information not directly related to an account holder.

2. Once the government has reviewed the redacted information, it shall file with the
court, ex parte and under seal, any request(s) for non?redacted identifying
information, including an explanation as to why a specific record should be revealed
to the government.

3. The government must then permanently delete from its possession any data that does
not fall within the authorized scope of the Warrants; and

4. The government shall not distribute, publicize, or otherwise make known to any other
person or entity, to include any other law enforcement or government entity, the data

and information not within the authorized scope of the Warrants.

15

The Court reiterates that the government can always seek additional warrants if it later

determines that its search was too narrow.13

C. Motion For Account Holders To Intervene For A Limited Purpose

The account holders moved to intervene for the limited purpose of challenging the
Warrants directed at their personal Facebook accounts and the Facebook Page,[4 arguing
infringement of both their Fourth Amendment right to privacy in their personal information and
First Amendment right to political speech and association. Movants claim that, because
execution of the Warrants would disclose to the government their private and political
information which cannot be later undone, they should be permitted to challenge the Warrants ex
ante to preserve their interests and any appeal rights.15

The parties do not dispute that D.C. Rules of Criminal Procedure do not explicitly allow a
non?party to challenge a search warrant prior to its execution. Movants point to Criminal Rule
57 which provides that ?when there is no controlling law[, t]he court may regulate practice in
any manner consistent with applicable law and these rules.? See Super. Ct. Crim. R. 57 

However, Criminal Rule 41 directs that the appropriate remedy for an individual aggrieved

 

'3 See Fifteen Email Addresses, 2017 US. Dist. LEXIS 159535, at 10 (?The
government is free to return and seek additional search warrants based on the new evidence it
discovers?) (citation omitted).

'4 The court denies the request by the Jane and John Does to intervene since all
identifying information, with the exception of the account holders, will not be disclosed to the
government unless and until the court has determined that such information is evidence of
criminal activity. Because it is not known whether the identity of the Does will ever be made
known, intervention at this time is not appropriate.

'5 Disclosure could foreclose the opportunity for account holders to bring any motion for
reconsideration or to appeal the decision. See Bruce v. Potomac Electric Power Co., 162 A.3d
177, 183 (DC. 2017) (?compliance with a subpoena will typically render an appeal from an
enforcement order moot?).

16

by a search he or she believes to be unlawful is to move to suppress evidence obtained as a result
of that search. See Super. Ct. Crim. R. 41 

In addition, although other courts have permitted non-party intervention ex ante for the
limited purpose of addressing a specific issue, such interventions were under decidedly different
circumstances. For example, the Court of Appeals has authorized the limited intervention of a
non-party in a criminal proceeding to protect constitutional interests, In re Jury Questionnaires,
37 A.3d 879, 884 (DC. 2012), or to secure access to court records. Mokhiber v. Davis, 537 A.2d
1100, 1144 (DC. 1988). Courts have also allowed non-party intervention when the subject is
seeking to prevent disclosure of his or her information on grounds of privilege. See, In re
Search of Electronic Comm 802 F.3d 516, 529?30 (3d Cir. 2015) (granting pre-enforcement
intervention of Google email account user challenging search warrant on non-constitutional
grounds); Doe N0. 1 v. United States, 749 F.3d 999, 1005 (11th Cir. 2014) (authorizing non?
party intervention in criminal proceeding to challenge disclosure of privileged information); In re
Sealed Case, 237 F.3d 657, 663-65 (DC. Cir. 2001) (granting limited intervention under Civil
Rule 24 to subject of FEC investigation who had a legally cognizable interest in
confidentiality of subpoenaed documents); United States v. Hubbard, 650 F.2d 293, 311 n.67
(DC. Cir. 1980) (remanding denial of intervention by non-party seeking to prevent public access
to documents on property and privacy interests).

Assuming intervention was authorized, however, the court nevertheless has discretion to
determine whether movants should be entitled the opportunity to review the government?s
supporting Affidavits and to challenge disclosure of their information before the Warrants are
executed. In exercising it discretion, the court considers a number of circumstances weighing in

favor and against allowing intervention. For example, weighing in favor of intervention, there is

no risk of evidence destruction since Facebook has preserved all the relevant materials or risk of
undue delay since the proceedings have already been delayed largely due to litigation
surrounding the non-disclosure orders, which the government ultimately agreed to vacate.
Weighing against intervention, there is a practical concern that granting a limited intervention
would ?open the ?oodgates to pre?execution warrant challenges? resulting in a strain on court
resources. In re No. 14-M-1233, at *6 (ED. Wisc. July 29, 2014).
Likewise, allowing pre-execution intervention by movants would unduly compound litigation,
making it protracted and frustrating the speedy resolution of investigations by the government.
As discussed, it is understood that the account holders and other Facebook users have a
Fourth Amendment privacy right to their personal information. United States v. Ali, 870 F.
Supp. 2d 10, 39 n.39 (D.D.C. 2012). They also have a First Amendment right to anonymously
post on the internet, In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1, 4 (D.D.C.
2011), and the right to be free from government interference. See Lyng, 485 US at 367 n.5.
Where First Amendment freedoms are directly at issue, the Supreme Court has held that
intervention is appropriate to provide an opportunity for the affected individual to be heard.
Quantity of Books v. Kansas, 378 US. 205, 210 (1964); Marcus v. Search Warrant, 367 US.
717, 734?38 (1961). Specific procedural protections, including pre-execution challenges, may
also be appropriate where the government is seizing presumptively protected materials. See Fort
Wayne Books, Inc. v. Indiana, 489 US. 46, 63-64 (1989) risk of prior restraint . . . is the
underlying basis for the special Fourth Amendment protections accorded searches for and seizure
of First Amendment materials?) (citation omitted); Cor-mick v. Myers, 461 US. 138, 145 (1983)
(?speech on political issues occupies the highest rung of the hierarchy of First Amendment

values, and is entitled to special protection?); but see Heller v. New York, 413 US. 483, 492?93

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(1973) (denying pre-enforcement challenge where the targets of the search may destroy or move
criminal evidence).

Although the search may implicate movants? privacy interests as to their personal
information, in a legal sense such interests have already been taken into account by requiring the
government to meet the higher burden, and correspondingly higher protections, involved in
obtaining a search warrant. Subpoenas are generally subject to pre-enforcement challenges
because they lack certain safeguards that are required in issuing a search warrant. Unlike
subpoenas, search warrants generally are not subject to pre-enforcement challenge because the
Constitution imposed specific procedural safeguards for issuing search warrants, such as
issuance by a neutral, detached judicial officer and the establishment of probable cause, that are
not required in issuing subpoenas. In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d at
4 n.6. Here, the Warrants were issued after an impartial judicial officer found probable cause to
believe that the individual accounts contained evidence of a criminal offense, as supported by a
factual presentation by law enforcement which was sworn to oath or affirmation, and describing
with particularity the scope of the search. Such a review process is not available when issuing a
subpoena. Consequently, the court is hesitant to undermine the integrity of the impartial review
that was already undertaken in this case by ?wip[ing] the slate clean? through any substantive
review of the account holders? requests challenging the Warrants ex ante. In re
No. 14-M-1233, at 6.

Moreover, the court has imposed additional safeguards to protect the privacy and
legitimate expression by the account holders and other third parties interacting with the target
accounts. Any identifying information about individuals who interacted with the target accounts

(by being Facebook friends, liking or commenting on posts, following the Page, sending or

received Facebook Messenger communications to/from a target account) will be redacted and
only revealed to the government upon express authorization by the court. Even if ultimately
there is no evidence of criminal activity found in the individual accounts, the account holders?
privacy interests will be preserved since the government is foreclosed from disclosing the
contents of information that it has reviewed to any other person or entity.

In reality, given the unique posture of this case, the court has already received multiple
pleadings and arguments from the account holders to which the government has had a full
opportunity to respond. The court has conducted a full hearing, open to the public, to consider
the account holders? issues and the government?s opposition thereto. In that sense, the movants
have been heard and their positions taken into account so that they have received the practical
benefit that any formal intervention would provide. Indeed, their involvement in the
proceedings, though unprecedented, has been informative in minimizing intrusion by the
government into their own information while also ensuring that the identities of innocent users
are protected.

Intervention is not favored where doing so would be futile. Microsoft Corp. v. United
States DOJ, 233 F. Supp. 3d 887, 916 n.17 (W.D. Wash. 2017) court need not grant leave
to amend where amendment would be futile?) (citation omitted). Since the account holders have
had robust involvement before this court, the only conceivable benefit is a speculative
opportunity to appeal this court?s order, which the court does not determine to be a sufficient
reason to circumvent the normal processes concerning the enforcement of search warrants.

In summary, the movants have been provided notice and an opportunity to protect their
interests. In this case, because Facebook has not produced the information sought by the

Warrants, the account holders have not yet been aggrieved by any unlawful search and thus have

20

no Rule 41 authority to challenge it. Perhaps more persuasive, however, is that the results of the
government?s search remain unknown at this time. In the event that the government seizes any
data or information, there are specific remedies allowed for under Rule 41 to which the
movants may avail themselves, if and when that becomes appropriate. Pursuant to this court?s
order, any data not seized by the government will be destroyed and not disclosed to any other
person or entity, including government entities. As a result, any private information will remain
private. Thus, the traditional process of challenging the issuance or execution of the Warrants is
most appropriate. As a result, the court denies their requests of limited intervention.
For the reasons stated above, it is this mg day of November 2017, hereby
SO ORDERED.
 
Date: November 9, 2017
Chief Judge Robert E. Morin
Superior Court for the District of Columbia
Copies to:
Jennifer A. Kerkhoff

John W. Borchert
Assistant United States Attorneys

John Roche
Counsel for Facebook, Inc.

Scott Michelman

Arthur Spitzer

Shana Knizhnik

Counsel for the Account Holders

Paul Alan Levy
Counsel for Proposed Interveners