The DOJ's Campaign to Track Down Anonymous ICE Critics

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1:45Bloomberg Audio Studios, podcasts, radio, news. To unmask anonymous speakers or attempt to unmask them in this way is a pretty significant threat to the First Amendment and to the right to privacy. Lauren Regan is the founder and director of litigation and advocacy at the Civil Liberties Defense Center. In March of this year, someone reached out to her for help on what's shaping up to be a new front line in the battle over First Amendment rights. They had received an email from Reddit informing them that Reddit had received a legal process from the government. The government was asking Reddit to hand over information that would identify this user, who, like many people on social media, was posting anonymously.

2:35The request was from the Department of Homeland Security, And Lauren says the user didn't know what to make of it. They had certainly never seen anything like this or heard about anything like this. The government's request to Reddit was called an administrative summons, seeking details that would unmask the anonymous social media poster. And to Regan, the legal grounds seemed shaky. Using a statute that pertained to export and trade, it seemed pretty irrelevant. But the strategy was familiar. Regan says her firm had just helped another client beat back a similar summons sent to a different social media company.

3:15In that case, they'd filed a motion to quash, and they'd won. Regan says she took the same approach to the Reddit user's summons. And so when the federal government realized that it was likely that our motion to quash was going to be granted, they withdrew the administrative summons. It was no victory, though. Regan says within 24 hours, the government came back to Reddit with something more serious, a grand jury subpoena. Normally, grand juries are used to investigate federal crimes, federal felony crimes. But in this instance, because they used an administrative summons first, we know that this was not a normal criminal investigation.

4:03The government's subpoena didn't specify why Regan's client was being investigated or which specific posts were under scrutiny. Our client is just a pretty normal Reddit user. They don't have a huge following. We were really, you know, kind of at a loss for why would the government use all of its resources to target this normal Reddit user. Bloomberg doesn't know the poster's identity and hasn't reviewed all the posts. But when Regan went through the user's Reddit history, she said one exchange stood out. It was about the ICE officer who shot and killed Renee Nicole Good in Minneapolis in January.

4:39The user and another user are trading comments about how someone had found the officer's current address. It doesn't actually provide the address. There are some back and forth kind of funny posts. And our client sort of, you know, says, well, first he lived in this location. Then he lived in this location. Maybe he'll live in the state penitentiary next. You know, just kind of like making a joke. And that is about the spiciest of any of the posts that we have reviewed, which, of course, is also 100 % First Amendment protected. That is not a true threat. Clearly, that was, you know, meant as humorous.

5:20Regan talked to other lawyers who were representing clients in similar cases. We realized that all of our clients had posted anti-ICE sentiments in some way, shape or form. We know that there are many other users that have motions to quash pending right now as well. We can't figure out their names or their case numbers because everything is under seal and secret. it. We have been able to confirm two instances of this escalation from the administrative summons to the grand jury subpoena. And attorneys that we spoke with just reiterated, you know, what a serious escalation this is. That's Jimmy Jenkins, who covers the Justice Department for Bloomberg.

6:07He and Zoe Tillman, a Bloomberg legal reporter, learned about Regan's client as part of their reporting on the Trump administration's efforts to identify the people behind anonymous social media posts critical of the administration. Here's Zoe. Grand jury proceedings, they are generally not public. They take place in secret. That's part of what also makes this tactic different from fights that play out in public court dockets. It's a tactic that has civil rights groups and legal experts concerned. Their comments to us were, you know, if my client is getting flagged for this, this means anyone could.

6:43I'm David Gurra, and this is The Big Take from Bloomberg News. Today on the show, what we know about the Trump administration's use of grand jury subpoenas intended to unmask government critics on social media, what the social media companies have said, and what this could mean for the future of free speech.

7:04Zoe and Jimmy, we just heard from an attorney for a Reddit user whose posts included criticism of ICE. And you talked to another lawyer who laid out a pretty similar circumstance for an anonymous poster on X. Based on the reporting you've done, what kind of posts are in the spotlight here? What we've been told is that those posts were criticism of ICE, of the, you know, tactics the administration has used to escalate immigration arrests, to clash with protesters. I think one of the attorneys told us, you know, there's some expletives in there, strong language. Attorneys have said they think what's under investigation, They don't know because they're not told is, you know, maybe looking into possible threats against federal officers, doxing concerns.

7:51But what they've said, their counter to that is that what their clients were doing was protected speech and that there's a wide array of commentary, you know, profane, aggressive. Even in some cases, they say that can look like doxing that is protected under the First Amendment. Their point is that the First Amendment is there to protect even anonymous speech like that. Jimmy, when you look at these grand jury subpoenas in aggregate, are they all following the same playbook or leaning on the same legal justifications? It sounds like we've only been able to identify a few of them here, but is there a commonality among them?

8:27Well, that's the thing. We don't know the legal justification yet. And the attorneys told us that that is something that they have never seen before either. Normally, you at least have an inkling of what your client is facing, what grounds the government is trying to stand on. And we don't know. Both attorneys in the cases that we profiled have filed motions to unseal the cases, in which case we would learn a great deal more about what the government thinks has happened here. And we do know that the administrative summons that was taken away was based on a trade law that has absolutely nothing to do with free speech.

9:03How do we get to a space where maybe they potentially have committed a more serious crime? It's unclear. Jimmy, what do we know about the grand jury subpoenas that Reddit and X have received? They are a very powerful tool. Once the grand jury isn't impaneled, one former United States attorney told me that basically all you have to do is have your legal assistant type it up for you. And they are empowered to go after all kinds of data that I think people would be surprised, credit card, banking information, home address, your other social media handles. So basically, your entire presence online, just all kinds of identifying information that people may not be aware that the government has the power to go and get.

9:47Zoe, what does it mean if you're a person whose account information has been subpoenaed? Just a basic question here. But how are you being informed that your account is under scrutiny? Most of the time, you're not. You don't get that subpoena. So when the government wants something from X or Reddit or Meta, whatever platform, they go directly to them. You are not part of that process. You know, your content in that situation does not belong to you. Now, most social media platforms have made commitments to notify users when they're allowed to about these types of requests. And the companies said, you know, this is your opportunity if you want to go in and contest this.

10:28In many instances, the platforms are not going to court to fight these. They have a general principle sort of similar to the idea that they don't, you know, police a lot of the content on their platforms. They're not in the business of screening in a vigorous way what the government wants and why. I will say Reddit did tell us in a statement that they do review these types of requests for sufficiency and to make sure that they're not abusive. But they are not regularly going into court to make sort of free speech type defenses against these demands. Is it the same thing with X? I mean, I think back on all that we've heard from Elon Musk, the owner of X, who kind of fashions himself as a free speech absolutist, somebody who thinks that anonymous speech is important.

11:09Are there policy strictures in place at X to deal with things like this? It's mostly it's similar. It's, you know, what we saw in this case was they gave a notice to the user and said, if you don't weigh in and you don't exercise the right that you have to contest this. I think the language was something like, you know, we are likely to turn over disinformation. So they're giving notice when they're allowed, but they are not going into court. Bloomberg asked X for comment and a spokesperson didn't respond. A Reddit spokesperson said in a statement that the platform, quote, operates on the fundamental belief that privacy is a right and has a proven track record of vigorously defending users' anonymity.

11:50When legally compelled to disclose data, Reddit said it provides the minimum required and notifies users whenever possible. The DOJ declined to comment about the subpoenas, the reason for using them, and potential crimes being investigated. And the Department of Homeland Security didn't respond to requests for comment. We do know that the United States attorney, whose name is on these subpoenas, has been working on other cases where we do know the nature, which was the threats against officials. So that's some clue. We know that this is both of the subpoenas that we reviewed were from the D.C.

12:23United States Attorney's Office. And so, again, until any more people come forward with similar cases or until these cases are unsealed, we still don't know the government's motive here. We can only guess. After the break, when grand jury secrecy meets the First Amendment right to anonymous speech, how can the public find out what's actually happening?

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14:28Zoe, let's just level set a little bit here. Maybe you can explain just traditionally how grand juries work. Sure. So you have two types of juries in the federal court system and really state courts as well. You have your sort of regular run-of-the-mill jury service. We all get our summons every few years. We go in, we get called or not to sit in a trial. We vote whether to convict or not or acquit. You go home. Grand jury is entirely different. You are called to serve on a grand jury for a much longer period of time. It could be months. You're not in an open courtroom. And it is your job to decide if the government has met a bare minimum level of proof to indict a person on criminal charges.

15:12Your identity is secret. Everything you do is secret. And a lot of that is for your protection because you're the one deciding whether to charge often, you know, very serious crimes. And it's you and the prosecutor and your fellow grand jurors in the room. The proceedings broadly are overseen by a judge, but the judge is not sitting there calling balls and strikes. Prosecutors can use grand juries to do their investigations. They don't have to bring sort of ready packaged deals to the grand jury. That's what we're reporting on here, which is these subpoenas go out and prosecutor says, you know, for the purpose of this investigation before the grand jury, I need all of this evidence.

15:51And that's what they're bringing in. And at the end of that process, then if they feel like they've, you know, accumulated enough, they ask the grand jurors to vote on whether to indict. Do they also have power to decide whether to subpoena somebody or is that something that's really just germane to the job of the prosecutor? So the prosecutor leads and really drives the investigation. It's sort of their show. The grand jurors can ask for information. It's not like serving on a trial jury where you cannot speak. You cannot participate. You have no role except to listen. The grand jurors are active participants.

16:25One thing that I think is interesting is that I wrongly thought that a grand jury subpoena was in fact signed off on by the grand jury. But no, in fact, it is just the United States attorney saying, you know, here's what I want and I may take what I get and take it back and present it before the grand jury. And so, you know, they are not signing off on this very, very powerful tool and it is not reviewed by the judge unless it is challenged. For a long time, prosecutors have been pretty successful getting grand juries to sign off on indictments. That has changed recently, and I wonder why that's been the case.

16:57Well, I should say, I mean, the rate is still quite high for the vast majority of cases. There has not been sort of a groundswell sea change in how people serving on grand juries think about criminal prosecutions generally. What we have seen is that in certain types of cases involving the Trump administration and, you know, inextricably entwined with this president's policies in certain jurisdictions, we have seen these moments of grand juries not voting to indict, returning a no true bill is the phrase that you hear. Most commonly what we've seen when it's happened, it's been in Washington, D.C., which is a very liberal, Democrat-heavy jurisdiction.

17:41It's also a city that is full of people who are very tuned in and aware of current events, the political situation. They are aware of how grand juries work, and they can decline to indict. And there have been some instances where we've seen that in Washington and a few other jurisdictions as well. But, you know, at the end of the day, that's why we put these to a jury of peers is ultimately we leave it up to the people to decide. So we one figure to watch in the social media subpoenas case is U.S. District Chief Judge James Bosberg in D.C. He was the judge who effectively shut down a case President Trump was watching very closely involving former Fed chair Jerome Powell.

18:25As a presiding judge, James Bosberg has the power to quash these subpoenas. How does the Fed investigation indicate what he could do in this case? Yeah, so the chief judge in the federal district court presides in the broadest sense of the word over grand jury proceedings. If someone has a complaint or an objection to a subpoena, they bring it to Judge Boasberg. And I think you mentioned the Federal Reserve case is a great example where the D.C. U.S. Attorney's Office was investigating the cost overruns of the Federal Reserve's renovation project in Washington and issued grand jury subpoenas to the Federal Reserve to get materials.

19:08And the Federal Reserve filed motions to quash with Chief Judge Boasberg. And all of that happened in secret. But at the point that he decided to grant that motion to quash and to toss out the subpoena, he also granted a motion to unseal. And that was when we got to see the arguments that were raised against the subpoena. We got to see the government's defense of its actions. And we got to see the judge's reasoning for tossing out those subpoenas. So we know that the chief is mindful of these types of arguments and these concerns that this administration is, you know, in some instances, in his opinion, misusing the grand jury subpoena powers.

19:50We are seeing the politicization of the First Amendment, allegations from both the left and the right that opponents are chilling speech. Does this story represent a new turn in that narrative? I think to the extent that sort of the arm of government is reaching out to, you know, quote unquote, ordinary people to conduct that, you know, generally has not gotten as much attention. things like anonymous people posting on social media. And to the extent that this administration has said that, you know, its priorities include protecting the federal agents who are the ones on the street carrying out its hardline immigration policies, you know, to the extent they are, you know, doing this in their view to protect those agents, squares with that policy agenda.

20:44The question of speech online about what the government is doing has been a flashpoint for quite a while now. But I think what's different here is the extent of efforts to find out who these people are, who are just ordinary people out in the world posting on the Internet, to find out who they are and to do that in the context of, and maybe we're going to prosecute you based on that conduct. I think that is not necessarily something we've seen in the past and is certainly a different tactic now in looking at the progression of the Trump administration's response specifically to the public opposition to what they've been doing on immigration.

21:43If you liked this episode, make sure to follow and review The Big Take wherever you listen to podcasts. It helps people find the show. Thanks for listening. We'll be back tomorrow.

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