Above: Protesters blocked Interstate 5 northbound at Lakeway for more than an hour Saturday, Feb. 11, demonstrating over the Tuesday announcement by the U.S. Department of the Army to grant easement for the Dakota Access Pipeline. Traffic backed up 4 miles during the protest. Kyle Mittan / The Bellingham Herald
Authorities investigating the February demonstration that blocked Interstate 5 and allegedly caused an injury crash can move forward with the search of the Bellingham #NoDAPL Coalition Facebook page.
Whatcom County Superior Court Judge Charles Snyder on Wednesday denied a request to revoke the latest version of the search warrant, which the judge approved May 11.
The American Civil Liberties Union successfully challenged the first warrant for being too broad and unconstitutional, while Facebook told investigators the second warrant was too specific for it to be able to filter for the requested information, according to court documents.
The Whatcom County Sheriff’s Office applied for the warrants.
On Wednesday, Michael Brodsky, the attorney representing one of the page administrators for Bellingham #NoDAPL – who have said its purpose was for political organizing and protests and to provide information about environmental issues and tribal sovereignty – said allowing authorities to look at the “digital fingerprints” of the people who visited the Facebook page would have a chilling effect on free speech.
Like the ACLU, Brodsky argued the search warrant violated the First and Fourth Amendments of the U.S. Constitution.
“The disclosures of the information demanded by the search warrant threaten the First Amendment interests of the innocent third parties who viewed or communicated with the website,” Brodsky argued in court papers. “It is not difficult to anticipate the impact this disclosure will have on the willingness of third parties to investigate and engage with websites of political organizations.”
The Fourth Amendment protects individuals against unreasonable search and seizure.
Deputy Prosecuting Attorney George Roche said investigators weren’t trying to interfere with political speech.
“It is not our intention to infringe upon the rights of third parties or to chill the First Amendment,” Roche said to Snyder. “Again, the state’s not trying to prevent people from being able to engage in political free speech. We’re trying to conduct a Fourth Amendment search based on a crime that’s occurred, and as limited in nature as we possibly can.”
The investigation stems from an hour-long demonstration against the Dakota Access oil pipeline that led to a 4-mile freeway backup after protesters stopped traffic just south of the Lakeway Drive exit on Feb. 11.
The Washington State Patrol said the blockade led to a five-car rollover crash that injured one person. The agency began investigating the protest the following day, soliciting information from witnesses to bring charges against participants.
Roughly 100 protesters were on the freeway. Investigators are trying to identify as many of them as possible.
In denying the request to quash the search warrant, Snyder said it was sufficiently limited in scope because it specifically addressed the behavior on the freeway and “only things that are related to that behavior on the freeway, such as planning it, carrying it out, trying to conceal the plan.”
“Those are all specific to the potential crimes and nothing else. The fact that other people’s identities might be found on a Facebook page is the risk, I think, in modern society of communicating digitally,” Snyder said.
The warrant orders Facebook to provide all stored content from the Bellingham #NoDAPL Coalition page from Feb. 5 to Feb. 15.
That content includes photos or videos, event information, discussion posts, and all profile information including for administrators or moderators.
Information that doesn’t pertain to the investigation into disorderly conduct and reckless endangerment will be returned to the court and sealed, according to the warrant.