Protesters gather before the presidential inauguration of Donald Trump on Jan. 20 in Washington, D.C. | Zach Gibson/AFP/Getty Images Judge wrestles with demand for Facebook data on inaugural protest

A D.C. Superior Court judge wrestled publicly on Friday with crafting a way for prosecutors to get evidence from Facebook that may be relevant to an alleged Inauguration Day riot while protecting the privacy rights of political activists who played no role in any violence.

For about an hour and a half, Chief Judge Robert Morin questioned, cajoled and occasionally joked with a federal prosecutor as well as lawyers representing the social media giant, two spokespeople for the anti-Trump group formerly known as DisruptJ20 and anonymous individuals who "friended" the group on Facebook.


Morin issued no ruling Friday, but the activists did win some concessions as a prosecutor said the government was "amenable" to excluding some information originally sought, such as the names of 6,000 Facebook users who friended or liked the protest page.

"We really are looking for evidence of one particular criminal activity," Assistant U.S. Attorney John Borchert explained.

While liking the group's page might not prove much, Borchert insisted that liking a particular post — like one showing how to dress in so-called "Black Bloc" attire—could be important to one or more of the roughly 230 felony riot cases the government is pursuing.

"Depending on the post, it could be very probative of criminal intent," the prosecutor said. He later added that simply liking a page or a post is not in and of itself a crime.

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The search warrants issued in February appear to call for Facebook to produce all data from the accounts of DisruptJ20 spokespeople Lacy MacAuley and Legba Carrefour for a 90 day period, as well information from the group's page during that period.

Morin seemed concerned that the demands were likely to sweep up information that might have nothing to do with any crime.

"Have you given thought to sort of the expansive nature of some of these Facebook accounts and what’s contained in them?" the judge asked.

The lawyers for DisruptJ20 organizers and users said the concerns about overreach were particularly acute because of what they asserted is a lack of respect for First Amendment rights by the Trump administration.

"You have an administration investigating the political activity of people protesting this administration," said Scott Michelman, an American Civil Liberties Union attorney representing MacAuley and Carrefour.

"We're dealing with an administration whose hostility to dissent and willingness to abuse the process of law to silence critics is increasingly evident," said Paul Alan Levy, a Public Citizen lawyer representing what he described as "three frienders and one liker" of the DisruptJ20 page.

Borchert said prosecutors want to conduct a "front to back" search of the MacAuley and Carrefour accounts for a 90-day period around the protest. He argued that the situation is akin to a search warrant for a home, where investigators can look through all the contents of the dwelling in order to find material covered by the warrant.

But Michelman said seizing the entirety of a social media account, even if limited by time, is a more intrusive act.

"Many of the [Facebook] functions are implicated here that would not be implicated in a filing cabinet," he said.

Courts have sometimes had a magistrate comb through sensitive information like a large set of medical records in order to find information pertaining to specific patients relevant to a criminal probe.

The ACLU is proposing a similar process in this case, where a lawyer or retired judge would be appointed as a special master and would then sift the information to see what's relevant to the government's investigation.

However, Morin said that really isn't a good substitute for investigators doing the search themselves.

"A master wouldn't necessarily know the nuances of a particular communication online," the judge said, adding that "a seemingly innocent" post might have a more sinister import that investigators could discern.

In a related search warrant case involving DisruptJ20's web hosting company, DreamHost, Morin addressed objections to that warrant by creating a two-stage search process that will give the government some information from the site without names attached. Prosecutors will then come back to Morin if they want to seek the identity of any posters.

Morin said he's considering a similar process with Facebook, at least for some of the data involved.

The warrant issued to Facebook in February contained a gag order that prohibited the company from notifying users about the demands for information from their accounts. Facebook objected to the gag, but in April a judge turned down their request to lift the order.

Facebook took the case to the D.C. Court of Appeals. A day before the case was set for public arguments last month, prosecutors agreed to drop the gag order and the firm was allowed to notify MacAuley and Carrefour of the warrants.

There were some lighter moments at Friday's hearing, particularly as the judge and the lawyers struggled to find the appropriate language for social media actions such as "likes" and "friending."

One humorous moment came after Perkins Coie attorney John Roche, representing Facebook, said he wasn't sure whether Facebook could filter the data in a way other lawyers were proposing.

"This is Facebook!" Judge Morin exclaimed, prompting much laughter in the courtroom.