Huq: How the Justice Department’s Facebook Subpoenas Threaten Free Speech

How the Justice Department’s Facebook Subpoenas Threaten Free Speech

In recent months, the U.S. Justice Department has issued subpoenas against Facebook and web host DreamHost for records of thousands, perhaps millions, of citizens who expressed interest in protesting President Trump’s inauguration. Such requests, while perhaps well-intentioned, impinge on constitutional values embodied in the First, Fourth, and Fifth amendments. And worryingly, there is no good way now to ensure such values are respected.

Prosecutors often subpoena businesses for personal and revealing documents in white-collar and criminal cases. During the Whitewater investigation in 1998, Independent Counsel Kenneth Starr demanded records from the Washington, D.C. bookstore Kramerbooks respecting President Clinton’s purchases. Five years earlier, Senate investigators subpoenaed Sen. Bob Packwood’s diaries. And the reporter who obtained Judge Robert Bork’s video rental records in 1987 could as easily have been a zealous prosecutor.

Social media and web-hosted platforms generate business records much like bookstores, libraries, and video stores—just at a much higher rate, and entangling many more people. The Justice Department’s request to DreamHost, for example, potentially swept in 1.3 million people.

Prosecutors often have legitimate interests in these records. The ongoing Las Vegas investigation into gunman Stephen Paddock, for example, will properly reach records of his online activity. Many terrorist investigations hinge on tracking suspects’ interactions with online radicalizers, necessitating the acquisition of records.



Privacy Surveillance