Last week, word got out that the Justice Department was seeking to force DreamHost, the home of several hundred thousand Web sites, this one included, to turn over any and all server records having to do with a leftish site called disruptj20.org. The company vowed to resist.
After we went public with our concerns, the wave of public outcry from concerned citizens, judicial pundits, and commentators of all political backgrounds seemed to sink in. By Monday evening, the Department of Justice had relented and filed an amendment to remove some, but not all, parts of the data demanded in their warrant that we considered to be troubling.
We noted that the government took the relatively conspicuous step of filing its paperwork late Tuesday afternoon in what we can only speculate was an attempt to avoid further coverage by news media.
This late-in-the-game re-scoping of the request for data by the DOJ was a step in the right direction, but it didn’t go far enough. In fact, we filed a sur-reply [pdf] with the court in response [Wednesday] afternoon.
The public hearing took place yesterday, perhaps coincidentally while a DDoS attack was being mounted against all DH sites.
In the end, the judge agreed with a much-modified version of the motion to compel, and some of those modifications are serious:
The court has asked the DOJ to present it with a “minimization plan.” This plan is to include the names of all government investigators who will have access to this data and a list of all methods that will be used to comb through it in search of evidence.
The production of evidence from this trove of data will be overseen by the court. The DOJ is not permitted to perform this search in a bubble.
It is, in fact, now required to make its case with the court to justify why they believe information acquired is or is not responsive to (aka: “covered by”) the warrant.
The court will then seal any information that is acquired but then deemed to be “not responsive.” After that point, this information will not be available to the government without a court order.
Further, the Department of Justice is forbidden from disclosing the content of this responsive information to any other government agency. This is an uncommon step for the court to take, but it speaks to the sensitive content of this site and the First Amendment issues raised.
Comply with all these, said the court, and you can inspect what’s left. I have to figure that DOJ is not at all happy with this, but they’re not about to say so.