Posted on August 17, 2017 (November 29, 2018) Share: On Friday, a judge in Washington D.C. will hear argument on a critical case involving the Trump administration’s efforts to intimidate peaceful protest. The government is demanding that an Internet services company turn over the IP (Internet) addresses of 1.3 million visitors to an anti-Trump web site. We believe this demand poses a serious threat to the privacy and freedom of speech of the visitors to that web site, and violates their constitutional rights. Background This case is about the political protests against President Trump’s inauguration. Some of those protests were organized through the disruptj20.org web site, which is hosted by online service provider DreamHost. Most of these protests were peaceful, but some were not, and some protesters were arrested for rioting. As part of its criminal investigation, the U.S. Department of Justice obtained a search warrant against DreamHost. The government demands that the company provide “all files, databases, and database records” related to DisruptJ20’s web site, including “HTTP request and error logs.” That would include the IP addresses of the 1.3 million people who clicked on the web site. DreamHost contacted the government and attempted to narrow or clarify the warrant, but the government refused, and instead filed a motion in court to compel DreamHost to provide the records. DreamHost is resisting the motion in court and has explained why on its company blog. The dangers of the Trump administration’s demands The Trump administration’s effort to force DreamHost to turn over information about everyone who visited a publicly available web site is an unprecedented threat to the First and Fourth Amendment rights of web site visitors. This is not a narrowly targeted criminal investigative tool. It is an attempt to locate dissenters, and intimidate people against even thinking about protesting. It’s not surprising that this search warrant involves protests against Trump. We know how little Trump thinks of the right to peaceful political protest—in fact, he has repeatedly incited violence against peaceful protesters at his own events. This isn’t a secret; the video is on the Internet. And earlier this week, he told us that, in his mind, the counter-protesters in Charlottesville are comparable to armed neo-Nazis. More broadly, we can’t allow the government under any president to seize records of everyone who ever visited a web site related to peaceful political protest. Human rights and corporate rights DreamHost is a corporation (technically, an LLC). It’s an artificial legal entity that exists because of a charter granted under the laws of Delaware. Corporations are not people, and they shouldn’t be treated as if they have constitutional rights like living, breathing people. The Fourth Amendment applies, in its own words, to “the people.” And as the Supreme Court has recognized, “corporations can claim no equality with individuals in the enjoyment of a right to privacy. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities.” We shouldn’t conflate the privacy of “the people” in “their persons, houses, papers, and effects” with the operations of a business corporation. But DreamHost is, in fact, the best possible party to be raising the constitutional rights of the visitors to disruptj20.org. To understand why, we need to turn to an ancient legal doctrine with a Latin name, a 60-year-old case involving the NAACP, and a 40-year-old case involving beer sales. The NAACP’s fight against Alabama The problem is that people whose privacy might be at stake can’t easily come into court to challenge the search warrant. Most of them probably don’t even know about it. Many may have forgotten that they even clicked on the web site. Few, if any, would be in a good position to engage in high-paced litigation in Washington, D.C. against the U.S. Department of Justice. And perhaps most importantly, to appear in court to challenge the search warrant would give up the very privacy that they seek to protect. That’s reminiscent of a famous 1958 case, NAACP v. Alabama. That case involved Alabama’s efforts to force the NAACP to divulge its membership lists. The NAACP was rightly concerned about the threats to its members’ safety, privacy, and freedom of speech if the state of Alabama (then in full battle against the civil rights movement) got its hands on the list, so it fought all the way to the U.S. Supreme Court. The Supreme Court noted that the NAACP could bring the suit on behalf of its members, explaining: “If [the NAACP’s] rank-and-file members are constitutionally entitled to withhold their connection with the [NAACP] despite the production order, it is manifest that this right is properly assertable by the [NAACP]. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion.” DreamHost, unlike the NAACP, isn’t an “association” that can sue on behalf of “members.” But it is in a very good position to raise these arguments on behalf of its customers. Jus tertii: not just about beer That’s where the ancient legal doctrine known as jus tertii (in English, third-party standing) comes in. Usually, when you go to court, you have to argue your own rights, not someone else’s, were violated. But under jus tertii, sometimes X can go into court and argue that Y’s rights are at stake. Courts don’t always allow these claims – there’s a four-part test – but there are legitimate circumstances, and this is one. The classic jus tertii case involved an Oklahoma law that set different drinking ages for males (21) and females (18). The question was whether the law unconstitutionally discriminated against young men on the basis of sex. But the plaintiff in the Supreme Court wasn’t a 19- or 20-year-old man. Rather, the court allowed the case to be argued by a (female) beer vendor. The beer vendor hadn’t been discriminated against at all, but her male customers had, and she came into court and argued a sex-discrimination claim on their behalf. And she won! That’s the logic by which DreamHost is the best (if not only) party to raise privacy claims based on the privacy and First Amendment rights of visitors to the web site. The issue isn’t DreamHost’s constitutional rights, but the visitors’. This isn’t one of the all-too-common scenarios where corporations make constitutional arguments that have no connection to the constitutional rights of any living, breathing people. Here, the court order threatens to compromise the privacy of people who aren’t even involved in the case. So DreamHost is probably the best plaintiff. Next steps We support DreamHost’s opposition to the government’s demands. And we like the way DreamHost has framed the issue—not about the corporation’s rights, but about the web site visitors’ rights. As the company’s brief explains, “In examining the features of the Search Warrant, the Court should begin with the way in which the warrant endangers the First Amendment interests of third parties, in this case the visitors to the website at issue.” The court should deny the government’s motion to compel, and the government should come back with an application for a narrower search warrant. We’re monitoring the case closely. One last thing: If the government ever seeks the visitor logs for our web site, we will fight it all the U.S. Supreme Court.