When is a Facebook 'like' a crime?

Photo / 123rf

Federal prosecutors in Washington appear willing to limit the scope of search warrants for the Facebook accounts of local activists connected to protests of President Donald Trump's inauguration.

The US attorney's office for a District of Columbia told a judge Friday that the government has "little interest" in obtaining the names of thousands of people who "liked" the Facebook page of a political group that helped plan the January 20 demonstrations, and agreed to narrow the timeline for photos the government is seeking as part of its investigation.

The statement from Assistant US attorney John Borchert came during a hearing in which civil liberties attorneys said the warrants were too broad and would have a "chilling effect" on political organizing by revealing private information about individuals unrelated to the investigation.

More than 200 people were arrested and are facing felony rioting charges in connection to the Inauguration Day protests that injured police and damaged property in an area of downtown Washington.

DC Superior Court Judge Robert Morin proposed limiting the searches to certain keywords and expressed concern on Friday about sweeping up irrelevant information, but he noted that another judge had signed off on the initial warrants, finding "probable cause" that the accounts contained evidence of criminal activity.

Morin pressed the prosecutor about why investigators would want access to the names of users who "liked" certain posts or photos in the lead-up to the inauguration.

"Explain to me the 'likes,' " Morin said, noting that he'd had a tutorial on the ins and outs of Facebook in advance of the hearing.

Borchert said that "likes" of certain posts describing criminal activity could in some instances suggest a person's criminal intent. The vast majority of likes would not be relevant and investigators are not, for instance, interested in "cat pictures." He said his office is "amenable" to some type of "minimization" of the searches.

"There is simply no risk," according to the government's court filing, that investigators could use the warrants "for compiling information about the account holders' political affiliations and private lives."

Sitting in the front row of the courtroom were two of the targets of the search, Lacy MacAuley and Legba Carrefour. The third warrant is for the Facebook page of DisruptJ20, the political organizing group moderated by Emmelia Talarico.

None of the three - all represented by the American Civil Liberties Union - has been charged by the US attorney with Inauguration Day-related crimes.

The hearing raised questions about whether individual account holders could legally seek to block or narrow government searches of information they share on Facebook.

John Roche, a Facebook attorney, said in court that the company is "eager to protect these folks' privacy and their right to engage in political speech."

The company alerted the three users - MacAuley, Carrefour, and Talarico - to the warrants, after the government backed off their request to keep Facebook quiet about the searches.

Morin said he would rule quickly on the ACLU's request to intervene on behalf of the account holders and outline an approach for limiting the searches.