March 13, 2017

The Whatcom County prosecutor on Monday withdrew a search warrant obtained by the Whatcom County Sheriff Department that would have allowed a search of a Facebook account associated with a local group protesting the Dakota Access Pipeline.

The withdrawal came after the ACLU 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.

“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, as we have since our founding nearly 100 years ago.”

“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. 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. 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.

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.

The warrant also 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. 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 court order quashing the warrant is here:

https://www.aclu.org/legal-document/order-quashing-warrant-served-facebook-data-pipeline-protesters-group-page

The warrant served on Facebook is here:

https://www.aclu.org/legal-document/warrant-served-facebook-data-pipeline-protesters-group-page

The ACLU's motion is here:

https://www.aclu.org/sites/default/files/field_document/motion_to_quash_-_filed.pdf

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