The Justice Department Helped A State Prosecutor Target Facebook Records Of Anti-Pipeline Activists

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Nine months after pipeline opponents in Washington state staged a protest that blocked freeway traffic, Facebook ended a protracted legal standoff with a county prosecutor, turning over detailed records on the indigenous-led group behind the demonstration. Despite the fact that no criminal charges have been filed in connection with the February action, Whatcom County Prosecuting Attorney David McEachran repeatedly sought a warrant for the group’s Facebook page, ultimately securing private information including messages to and from the page and a list of everyone “invited” to the protest event.

McEachran’s first two warrant applications were withdrawn after the American Civil Liberties Union and Facebook raised objections. On the third try, however, the warrant was granted thanks to Facebook’s suggestion that McEachran’s office seek formal guidance from the nation’s top law enforcement agency, the Department of Justice. A public records request filed by The Intercept shows that the local agency and its federal counterpart cooperated to draft the ultimately successful warrant using a DOJ template.

Activists affiliated with the climate justice group, Red Line Salish Sea, view the investigation as retaliation for their February protest, a march against local fossil fuel projects and President Donald Trump’s executive orders expediting construction of the Dakota Access and Keystone XL pipelines. “Not only does this warrant attempt to scare people from organizing, this warrant attempts to scare people from even looking at information,” Tina McKim, a former administrator of Red Line’s Facebook page, wrote in a declaration.

The DOJ’s intervention in the case makes it the latest example of the Trump administration’s direct involvement in law enforcement actions against protesters who allege they are being targeted for protected First Amendment activity: On the other side of the country, the DOJ is pursuing decades of prison time for protesters, journalists, medics, and legal advocates arrested during the anti-Trump “J20” demonstrations on Inauguration Day. In that case, too, the prosecution secured warrants for the Facebook page and website used to organize the protests. Now, Standing Rock-inspired activists in Whatcom County find themselves on the front lines of the battle over Americans’ right to anonymously organize with political groups.

The case began on February 11, three weeks after Trump took office. Red Line Salish Sea, formerly known as the Bellingham NoDAPL Coalition, organized a march to oppose Trump’s executive orders as well as proposed fuel export facilities in the Pacific Northwest. (The group’s name refers to the Salish Sea, which extends from Olympia, Washington, into Canada; activists consider the region a red line that new fossil fuel expansion should not cross.) About 100 protesters eventually made their way to Interstate 5, where they slowly brought traffic to a stop. Though the protest blocked traffic for an hour, no arrests were made and demonstrators were allowed to peacefully disperse.

However, a driver 2 miles south of the march was cited for “inattentive driving” after colliding with a vehicle that was slowing down for the traffic jam, causing it to bump into another vehicle. Two minor injuries — “soreness in shoulders” and a seat belt-inflicted injury to the sternum — resulted from the accident. Five days later, the prosecutor’s office launched a disorderly conduct and reckless endangerment investigation into the protest, citing the collision as well as the case of a man stuck in traffic who was forced to urinate in a bottle. The county sought the identity of organizers and proof that they coordinated and concealed a deliberate plan to block the freeway while disregarding the risks involved. The investigation’s first step: serving Facebook with a warrant for Red Line’s Facebook page, including all messages, photos, videos, wall posts, and location information associated with the page before and after the protest.

That first warrant was withdrawn by McEachran in March after the ACLU argued it would chill political speech and violate basic First Amendment protections by seeking “data related to an unknown number of individuals who merely interacted with the group via Facebook.” More than 900 individuals or organizations “liked” Red Line’s Facebook page, the ACLU noted, and many more potentially communicated with the page in other ways. A second warrant more narrowly focused on content related to the I-5 demonstration was soon submitted and approved by Whatcom County Superior Court Judge Charles Snyder, but it too was withdrawn after Facebook insisted it was too specific and the company could not filter results but could only provide “categories” of information.

Then, according to testimony by McEachran’s deputy prosecutor, Facebook suggested the county reach out to the Department of Justice for help in drafting a third warrant. Emails obtained via public records request show that in May, senior DOJ attorney Jared Hosid exchanged drafts of the third warrant with Whatcom County Sheriff’s Detective John Allgire. Hosid gave specific advice on how to word the warrant, which was based on a template provided by the department’s Computer Crime and Intellectual Property Section.

The Intercept sent a letter seeking comment to McEachran’s office, which does not communicate with the media by phone or email, but has not received a response. The DOJ did not respond to request for comment. When asked about the advice Facebook provided to county prosecutors, a spokesperson for the company said Facebook has a law enforcement outreach team that fields questions from law enforcement about company policy.

McEachran’s investigation seeks evidence of minor crimes, but Larry Hildes, a public interest attorney representing Red Line and two former administrators of the group’s Facebook page, views the prospect of reckless endangerment charges as disproportionate to the facts of the case. “Firing a gun into the air above a crowd or driving a car at someone to intimidate them and then swerving out of the way, that’s reckless endangerment,” he says. “Peacefully walking onto a street is not.”

A month after the protest, McEachran live-streamed into the state Capitol to testify in favor of an economic disruption bill that would allow Washington’s law enforcement agencies to thwart protests with criminal charges conferring significant prison time. The bill, since defeated, would have made obstructing commerce (or planning a protest that obstructed commerce) a class C felony, punishable with up to five years in prison. McEachran, Whatcom County Sheriff Bill Elfo, and the local State Patrol chief pointed to Red Line’s protest as proof of the bill’s necessity.

They were not alone: In 2017, sweeping domestic terrorism bills increasing penalties for protests that “disable” streets, public buildings, or critical infrastructure were passed in Georgia and Florida. According to the International Center for Not-for-Profit Law, new protest suppression bills have also been passed in Oklahoma, South Dakota, North Dakota, North Carolina, and Tennessee. Now, model legislation is being pushed in state legislatures by the influential American Legislative Exchange Council to further criminalize pipeline protests.

This view of protests as quintessentially criminal conduct, rather than protected First Amendment activity, was captured in the explicit justification McEachran’s office provided for its investigation of Red Line’s February action, according to a legal brief filed by Hildes. “The state seeks to justify [the warrant] by comparing this situation to the infamous D.C. sniper incident,” the brief notes, referring to a series of attacks in 2002 in which hidden snipers evaded law enforcement for three weeks, killing 10 and wounding three.

“The warrant and the county’s pleadings do not so much as acknowledge the existence of the First Amendment, nor that this was a demonstration, but simply treat it as supposed criminal activity like a bar fight or drunk driving,” Hildes wrote.

Merely granting the warrant, Hildes argued, would immediately violate people’s rights to anonymously associate with a political group. He cited the landmark 1958 Supreme Court decision NAACP v. Alabama, which secured the right to “associational privacy.” The court ruled Alabama could not force the NAACP to turn over a list of its members, which the state had demanded in the midst of its unsuccessful effort to close down the group’s state chapter. “Privacy in group association,” the court wrote, “may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

But on November 17, the Washington Court of Appeals denied Hildes’s effort to halt the warrant, saying the NAACP precedent did not apply. The warrant handed over all stored content, including deleted content, associated with Red Line’s Facebook page from February 5 to February 15, including Facebook account names and ID numbers of everyone “going,” “interested,” and “invited” to the February 11 event; personally identifiable information on all administrators or moderators of the page; all status updates, messages, videos, photographs, articles, wall postings, event postings, comments, and tags; and images or videos shared by, posted to, and uploaded to the page.

The court concluded that the warrant’s use of an independent “privilege team” to process the data would shield personal and First Amendment-protected information not related to McEachran’s criminal investigation. According to the testimony of Whatcom’s deputy prosecutor, it was the DOJ’s idea to set up the independent team that ensured Facebook’s compliance with the warrant.

“We were … assured that an independent team will review and separate out only the relevant data for the criminal investigation,” Facebook told The Intercept. The setup is similar to the court-appointed “special master” requested by the ACLU after the D.C. Superior Court gave the federal government access to the Facebook page used by organizers of the J20 Inauguration Day protests. In the end, the court did not grant the ACLU’s request in the J20 case, but it did restrict the warrant by requiring some prior redaction by Facebook and court-approved protocols for how the prosecution could search the page. (The J20 warrant was filed after nearly 200 people were charged with felony crimes, however, whereas the Whatcom warrant was justified only by McEachran’s misdemeanor investigation.)

In Whatcom, there is reason to doubt the independent team will truly shield people’s First Amendment activity from government oversight — because the team consists of a prosecutor and an outside detective appointed by McEachran’s office, the Washington State Patrol, the Whatcom County Sheriff’s Office, and the Bellingham Police Department.

The court’s November 17 decision also found that the two former administrators of Red Line’s Facebook page represented by Hildes did not have legal standing to seek to quash the third warrant. The only entity that had that privilege, according to the court, was Facebook, which passed on the opportunity.

In the J20 case as well, Facebook users and third parties did not have standing to intervene legally to quash the Facebook warrants. Scott Michelman, an attorney at the ACLU of D.C. who was involved in challenging the J20 warrants, thinks that limiting standing to warrant recipients makes it too difficult for platform users to protect their privacy. “[Facebook] users and third parties should be able to protect their own rights in court. Courts should be open to these types of challenges, or else everyone has to rely on Facebook,” he said.

Facebook does not have a universal policy on challenging warrants in court. “We scrutinize every request for user data and push back when they are legally deficient or overly broad,” a Facebook spokesperson told The Intercept, pointing to a 2014 example in which the company sought to challenge a warrant that demanded “nearly all data” from the accounts of 381 people, 62 of whom were later charged with disability fraud.

In the Whatcom case, after being held in contempt of court for not complying with the warrant on time, and facing the onset of a $2,000 per day sanction, Facebook handed over the data to McEachran’s office on November 20. “We notified the affected people and held off on complying with the warrants while two courts heard and rejected their claims,” the Facebook spokesperson told The Intercept.

In its decision, the Washington Court of Appeals argued that one reason the NAACP precedent did not apply was that unlike in NAACP, those targeted by the Whatcom warrant would not face “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” as a result of their association with Red Line being exposed.

Michelle Vendiola, a member of the Walter River Paiute Tribe and a former administrator of Red Line’s Facebook page, begs to differ. After the freeway protest, activists associated with the anti-pipeline group were the recipients of a surge of online harassment; commenters suggested they should have been run over and posted their personal information on the internet. A photo of Vendiola’s business card circulated online, leading to an influx of public pressure on her employer, Western Washington University, to fire her. The incident led a senior assistant to the university president to publicly condone the protest as an “illegal act” and “counterproductive.” Western Washington University did not respond to a request for comment.

Around that time, the Washington State Patrol filed a freedom of information request for all of Vendiola’s email communications and web history stored on university computers and servers. One of her colleagues also initiated an ethics investigation, alleging she used public resources to organize the February protest. After the state searched her work computer, email communications, and web history, the investigation concluded that no violation had occurred. In July, however, the university did not renew her contract.

“They’re specifically trying to find evidence to bring charges against me,” Vendiola said of the prosecutor’s office. “It’s really frustrating to wait and wonder.” The statute of limitations for filing disorderly conduct charges against the protesters expires next month, on February 11.

Despite McEachran’s ongoing investigation and the possibility of charges looming, Red Line has continued to organize. Along with fundraising and preparing for any future legal fights, the group is supporting the Puyallup Tribe’s opposition to a liquefied natural gas export facility in Tacoma, Washington. And to the north, members are fundraising for the Unist’ot’en Camp, which is blocking multiple pipelines on unceded indigenous lands in British Columbia.

The climate for anti-pipeline organizing across the country could hardly be more threatening. McEachran’s third warrant was granted just after the Justice Department vowed to prosecute protesters who damage pipelines — and members of Congress and the American Petroleum Institute urged the agency to classify those activists as domestic terrorists.

This context informs Hildes’s suspicion that the reckless endangerment charges are a red herring. “The county prosecutor’s office now has the internal organizing records of a political group they don’t like,” Hildes told The Intercept. “This is not about a peaceful demonstration on the freeway anymore. This is about how do you intimidate and suppress dissent — that’s what it’s been about the whole time.”

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