A previous version of this story incorrectly stated that Robert Morin is a federal judge. He is a D.C. Superior Court judge.

A judge in Washington, D.C., considered the probative value of Facebook “likes” and comments in a hearing Friday as he mulled how to address a motion to quash government search warrants for accounts connected to protests during President Donald Trump's inauguration.

D.C. Superior Court Chief Judge Robert Morin asked Assistant U.S. Attorney John Borchert about the government's intentions for its search, and what exactly it wants to obtain from the accounts. The ACLU moved to intervene in the case last month on behalf of the three account holders. The group asked the court to block three separate warrants for information on two activists' Facebook accounts, as well as on the official Facebook page for DisruptJ20, a group that organized Inauguration Day protests in Washington, D.C.

Throughout the hearing, Morin expressed concern about both protecting the privacy of Facebook users while still allowing the government to investigate a criminal matter. More than 200 people have been indicted on charges under the district's anti-rioting statute in connection to the protests.

“The framers weren't anticipating Facebook,” Morin said during the hearing.

Search warrants for stored electronic communications work in two steps. First, a warrant outlines the communications held by an electronic service provider that should be searched. Second, the warrant indicates which communications can then be seized by the government if found.

At issue in Friday's hearing was how to prevent government investigators from viewing private messages and other actions taken by third-party users unrelated to the investigation, but that could be personal or political in nature.

ACLU attorney Scott Michelson argued that allowing the government to “rummage” through the accounts could have a chilling effect on political speech, sending a message that those who use Facebook to express opinions will be subject to government searches. Borchert said the government had no intention of violating users' First Amendment rights and was amenable to working with Facebook to limit the search. However, Borchert expressed concern on what limits are technically feasible.

At one point during Morin's questioning, Borchert suggested the government would consider “likes” on certain content to be evidence of criminal activity, such as on a photo or comment that promoted or anticipated the type of criminal behavior the government claims occurred on Inauguration Day. He later clarified that a like “by itself” is not evidence of criminal activity.

Borchert said the government would therefore accept a situation in which Facebook is required to hand over posts and the number of likes on those posts without revealing who liked what. Then, the government could designate which posts it considered to be connected to criminal activity, and then request the identities of those who clicked “Like.”

The judge did not rule from the bench on the ACLU's motion to intervene or to quash the warrant, nor did he rule on a different motion to intervene filed by the watchdog group Public Citizen. That group intervened on behalf of third-party anonymous Facebook users whose information would be handed over if the warrant were executed.

Morin appeared unlikely to designate a special master, as the ACLU requested, as an alternative to blocking the warrant. Instead, he suggested he could institute his own restrictions on how the government would be allowed to handle its search.

The judge asked Facebook attorney John Roche of Perkins Coie to consult with the company about what it's capable of doing in terms of limiting the information it handed over to the government and file a report outlining the answers to the court. Morin also asked the ACLU to provide declarations from its clients about their Facebook privacy settings, to allow him to understand what was public and private on their accounts.

Throughout Friday's hearing both Morin and attorneys for the parties suggested similar limits could be imposed on the government as were ordered by Morin in another warrant battle related to the protests, that of the website-hosting company DreamHost. The company, represented by Kilpatrick Townsend & Stockton partner Ray Aghaian, challenged a government warrant for information related to the DistruptJ20 website it hosts.

After several hearings and back-and-forth last month, Morin ruled this week to significantly limit that warrant, and provided extra safeguards to prevent the government from obtaining any identities of innocent people who simply visited the website.

“As the court has previously stated, while the government has the right to execute its Warrant, it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities,” Morin wrote in that order.

Earlier this year, Facebook challenged the government over a gag order included in the warrants that barred the company from telling the account holders about it. The government dropped the gag order on the eve of oral arguments in the Court of Appeals in D.C.

Apple

A previous version of this story incorrectly stated that Robert Morin is a federal judge. He is a D.C. Superior Court judge.

A judge in Washington, D.C., considered the probative value of Facebook “likes” and comments in a hearing Friday as he mulled how to address a motion to quash government search warrants for accounts connected to protests during President Donald Trump's inauguration.

D.C. Superior Court Chief Judge Robert Morin asked Assistant U.S. Attorney John Borchert about the government's intentions for its search, and what exactly it wants to obtain from the accounts. The ACLU moved to intervene in the case last month on behalf of the three account holders. The group asked the court to block three separate warrants for information on two activists' Facebook accounts, as well as on the official Facebook page for DisruptJ20, a group that organized Inauguration Day protests in Washington, D.C.

Throughout the hearing, Morin expressed concern about both protecting the privacy of Facebook users while still allowing the government to investigate a criminal matter. More than 200 people have been indicted on charges under the district's anti-rioting statute in connection to the protests.

“The framers weren't anticipating Facebook,” Morin said during the hearing.

Search warrants for stored electronic communications work in two steps. First, a warrant outlines the communications held by an electronic service provider that should be searched. Second, the warrant indicates which communications can then be seized by the government if found.

At issue in Friday's hearing was how to prevent government investigators from viewing private messages and other actions taken by third-party users unrelated to the investigation, but that could be personal or political in nature.

ACLU attorney Scott Michelson argued that allowing the government to “rummage” through the accounts could have a chilling effect on political speech, sending a message that those who use Facebook to express opinions will be subject to government searches. Borchert said the government had no intention of violating users' First Amendment rights and was amenable to working with Facebook to limit the search. However, Borchert expressed concern on what limits are technically feasible.

At one point during Morin's questioning, Borchert suggested the government would consider “likes” on certain content to be evidence of criminal activity, such as on a photo or comment that promoted or anticipated the type of criminal behavior the government claims occurred on Inauguration Day. He later clarified that a like “by itself” is not evidence of criminal activity.

Borchert said the government would therefore accept a situation in which Facebook is required to hand over posts and the number of likes on those posts without revealing who liked what. Then, the government could designate which posts it considered to be connected to criminal activity, and then request the identities of those who clicked “Like.”

The judge did not rule from the bench on the ACLU's motion to intervene or to quash the warrant, nor did he rule on a different motion to intervene filed by the watchdog group Public Citizen. That group intervened on behalf of third-party anonymous Facebook users whose information would be handed over if the warrant were executed.

Morin appeared unlikely to designate a special master, as the ACLU requested, as an alternative to blocking the warrant. Instead, he suggested he could institute his own restrictions on how the government would be allowed to handle its search.

The judge asked Facebook attorney John Roche of Perkins Coie to consult with the company about what it's capable of doing in terms of limiting the information it handed over to the government and file a report outlining the answers to the court. Morin also asked the ACLU to provide declarations from its clients about their Facebook privacy settings, to allow him to understand what was public and private on their accounts.

Throughout Friday's hearing both Morin and attorneys for the parties suggested similar limits could be imposed on the government as were ordered by Morin in another warrant battle related to the protests, that of the website-hosting company DreamHost. The company, represented by Kilpatrick Townsend & Stockton partner Ray Aghaian, challenged a government warrant for information related to the DistruptJ20 website it hosts.

After several hearings and back-and-forth last month, Morin ruled this week to significantly limit that warrant, and provided extra safeguards to prevent the government from obtaining any identities of innocent people who simply visited the website.

“As the court has previously stated, while the government has the right to execute its Warrant, it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities,” Morin wrote in that order.

Earlier this year, Facebook challenged the government over a gag order included in the warrants that barred the company from telling the account holders about it. The government dropped the gag order on the eve of oral arguments in the Court of Appeals in D.C.