“This is part of an increasing trend of law enforcement attempting to turn the internet, instead of technology for freedom, into technology for control,” Evan Greer, the campaign director for Fight for the Future, told AlterNet. “This trend started long before Trump and seems to be escalating and growing in scale now."
More than 200 of those picked up in the sweep at the anti-fascist, anti-capitalist bloc have been hit with felony riot charges, which carry penalties of up to ten years in prison and a $25,000 fine. Because the arrests took place in Washington, D.C., the cases are being prosecuted by the U.S. Attorney’s Office for the District of Columbia, which is directly accountable to the Department of Justice, now overseen by the notorious white supremacist Jeff Sessions.
Mark Goldstone, a National Lawyers Guild-affiliated attorney who is representing numerous defendants in the case, told AlterNet that “several” of his clients have been contacted by Facebook and Apple and informed that their personal information has been requested by law enforcement.
AlterNet viewed a “customer notice” email sent on February 14 by Apple to one of the defendants, who requested anonymity due to the ongoing charges. “On 2017-01-27, Apple Inc. ('Apple') received a legal request from United States Attorney's Office requesting information regarding your Apple account,” the message states.
The communication states that “Apple will be producing the requested data in a timely manner as required by the legal process.”
The individual who received the notice told AlterNet, “My phone wasn't present at the time of arrest and wasn't taken.” That individual does not know whether the data has been handed over to prosecutors.
“I wasn’t surprised by it, but it was also very unsettling and made me feel very vulnerable and exposed,” the individual said. “That some federal grunt could be looking through old texts, personal stuff and selfies. This is exposing and gross and creepy.”
Goldstone emphasized, “It’s an outrageous overreach by the government to try to data-mine personal property that wasn’t even seized at the demonstration. This will be fought vigorously.”
AlterNet also viewed a statement sent from Facebook on February 3 to an anonymous defendant. “We have received legal process from law enforcement seeking information about your Facebook account,” states the email, sent from the company’s records office.
“If we do not receive a copy of documentation that you have filed in court challenging this legal process within ten (10) days, we will respond to the requesting agency with information about the requested Facebook account,” the letter continues. “We may need to respond to this legal request within less than ten (10) days if we have a reasonable belief that we are legally required to do so.”
Stephanie Lacambra, a criminal defense staff attorney for the Electronic Frontier Foundation, told AlterNet that, in addition to Facebook and Apple, Google has also been sent requests for information by law enforcement. None of the companies responded to a request for an interview.
‘What is the government doing with the data?’
It is not immediately clear what information law enforcement has requested and under what legal justification.
“The most invasive form of surveillance is a warrant. A judge could authorize police to look through every bite of data on someone's Facebook account,” Michael Price, counsel for the Liberty and National Security Program at the Brennan Center for Justice, told AlterNet. “A 2703(d) court order allows police to get metadata about communications, and that could possibly include location information about when communications took place and when a phone was connected to cell tower. A national security letter allows police to get that information but does not require a court order.”
According to Lacambra, law enforcement could be accessing “surface information like user names, the registration information that was collected and the metadata on the last time of login and duration of service.” Or, they could be searching “information stored in Apple iCloud, contacts, the content of emails, any number of photos that are stored there.”
“I don't know the scope of information,” she said, “because I don’t know what legal instrument was used.”
Goldstone, the defense attorney, said he was not informed of what legal justification law enforcement invoked to seize the information. “No one has said or sent anything to me,” he explained.
The Metropolitan Police Department and the U.S. Attorney's Office for the District of Columbia both refused to comment, citing the pending investigation.
According to Price, “As a general matter, it is not uncommon for law enforcement to seek information from a third-party service provider like Apple or Facebook. It happens all the time."
"One of my biggest concerns," he said, "is that police will attempt to use electronic surveillance to get information about the people who were at the protest, in order to compile a list of the people who were present. Is that information going to be mined and used for other purposes? What is the government doing with the data? Are they going to store it? Are they going to send it to an intelligence analyst?”
Lacambra said the investigation raises disturbing questions. “Why is the Department of Justice trying to intrude into the digital lives of people exercising their rights to protest?” she asked. “Is this to intimidate, silence or threaten people for exercising their constitutional rights? When you arrest 230 people, some of whom are medics and legal observers, and try to systematically get to the content of their digital life, that is troubling."
The anti-capitalist, anti-fascist bloc was part of a day of disruptive protests across Washington, D.C., and the world, to interrupt business as usual and register opposition to the rise of Donald Trump, whose cabinet has aggressively delivered on his white supremacist campaign pledges. Since Trump took the White House, millions have taken to the streets, flocked to airports and mobilized to defend their neighborhoods and communities against a multi-pronged assault.
‘People should be paying close attention’
Some of the arrestees were already suspicious that police had searched their phones, which were seized by police. Those phones are still being held as evidence, according to legal support volunteers.
AlterNet spoke with a journalist who was arrested on January 20 and requested anonymity. He sent AlterNet a screenshot of his Google account, which shows that while he was detained and his phone was in police custody, there was activity on his account. AlterNet confirmed that the login occurred while the phone was in police custody by viewing a property receipt issued to the journalist by the MPD. The journalist says his phone is password protected.
This mysterious account activity is similar to activity on the account of an unidentified medic, reported by George Joseph of CityLab. As in the case of the journalist, the medic spotted activity on his account while the phone was in police custody. Joseph notes that a screenshot of the activity “suggests that police began mining information from the captured cellphones almost immediately after the arrests.”
Goldstone, who has defended protesters in Washington, D.C., for more than 30 years, underscored that he has “never seen phones seized at protests, let alone phones that were not part of a protest."
He also said that he has “never seen a felony riot charge in Washington, D.C., let alone more than 200 of them.” According to news reports, 214 people have been indicted for these charges so far, indicating that the prosecution plans to move forward with the bulk of the charges.
“We’re in a dangerous new world,” he declared.
Those arrested in the sweep already reported heavy violence at the hands of the MPD, which is overseen by Chief Peter Newsham, who has a troubling history of kettling and mass arresting people in the proximity of protests.
On January 20, Washington, D.C.-based lawyer Jeffrey Light filed a class action lawsuit on behalf of those detained charging that “Without warning and without any dispersal order, the police officers kettled all of the plaintiffs.” The lawsuit states, “Defendants John Doe MPD Officers and/or John Doe Park Police Officers deployed a large amount of chemical irritants against the plaintiffs, as well as struck multiple plaintiffs with their batons, and deployed flash-bang grenades.”
The anonymous journalist told AlterNet that, while covering the protests, he was sprayed in the face with what he believes was OC gas. “Two flash-bang grenades fell within three or four feet of me. I had tinnitus in my ears for a couple of minutes. I yelled out for a medic, and by the time I could see, we were completely kettled. I was incapacitated. I had a press badge and tried to tell them I was press."
AlterNet spoke with one anonymous arrestee who said that, at the police academy where arrestees were taken for processing, he received a “two-knuckle-deep cavity search.” He noted, “I didn’t see any reason for it.”
According to Greer, the police crackdown is “unquestionably an attempt to silence dissent, frighten people and keep them off of the streets. But I wouldn’t call it new. Anyone who has been involved in activist movements for more than a few years has seen this before.”
In recent weeks, Republican lawmakers across the country have introduced state-level bills aimed at criminalizing protests. One piece of proposed legislation in Washington state calls for certain acts of civil disobedience to be classified as “economic terrorism.” North Dakota lawmakers introduced a bill that would make it lawful for motorists to hit and kill protesters staging acts of civil disobedience obstructing highways, as long as the cause is “negligence.” The legislation is clearly aimed at the Black Lives Matter movement, which has staged acts of civil disobedience across the country.
Meanwhile, police departments have long been building up their capacity for surveillance. A 10-month investigation by CityLabs.com, a project of The Atlantic, revealed earlier this month that “major police departments around the country are spending millions on cellphone spy tools that can be used to build up massive surveillance databases—with few rules about what happens to the data they capture.” According to the investigation, most of the major police departments in the United States have either cell phone interception devices and/or “cell phone extraction devices, used to crack open locked phones that are in police possession and scoop out all sorts of private communications and content.”
In light of this climate, the fact that tech giants like Google, Apple and Facebook store large amounts of personal data is sparking concerns.
"Tech companies are building business models based on collecting large amounts of personal information and then failing to protect that information from the government and others who attempt to access it,” said Greer, who attended the January 20 protests in Washington, D.C. “People should be paying close attention and be concerned.”
