An Occupation In Eastern Oregon

Malheur Defendants Want Facebook Evidence Thrown Out Of Court

By Ryan Haas (OPB)
Portland, Oregon June 21, 2016 4:43 p.m.
Ryan Bundy, one of the leaders of the armed militants who have taken over the Malheur National Wildlife Refuge, says his group has not accessed government computers on the site.

Ryan Bundy, one of the leaders of the armed militants who have taken over the Malheur National Wildlife Refuge, says his group has not accessed government computers on the site.

John Sepulvado / OPB

Ammon Bundy and his followers made regular updates to their social media accounts during the occupation of the Malheur National Wildlife Refuge near Burns, Oregon.


And law enforcement was closely monitoring those accounts that documented their activities.

But defense attorneys for Bundy and more than 20 others awaiting trial for the occupation now  argue that hundreds of thousands of pages of Facebook evidence collected by the government were done so illegally, according to court documents filed Monday.

The attorneys argue that the warrants federal officers used to collect data in Oregon — and in Nevada for a similar 2014 standoff — are "overbroad" and violate their clients' Fourth Amendment rights.

Related: An Occupation In Eastern Oregon

"The warrant is overbroad because [FBI] Agent [Peter] Summers' affidavit does not provide probable cause that evidence of criminal activity will be found in many of the private features listed in the warrant," wrote attorney Per C. Olson, who is representing Malheur occupier David Fry.


Olson states that the Oregon warrants, which have not been made publicly available, sought to gather "private messages, chat history, video calling history, photos, status updates, wall postings, friend lists, list of groups and networks of which the user is a member, user identifications of friends and groups, rejected 'Friend' requests, pending 'Friend' requests, comments, information about the user’s access to and use of Facebook applications and services, history of the 'like' feature, etc."

Olson acknowledges that the government could gather publicly posted information. But the attorney argues that the search of private data outlined in the warrant is so broad, it's equivalent to an unrestricted search of a person's home or belongings, which is prohibited by the Fourth Amendment.

Olson cites several cases to support his argument, including the 2014 landmark case Riley v. California, in which the U.S. Supreme Court ruled it was illegal for law enforcement to conduct warrantless search and seizures of cellphone data.

He also argues that even though the Oregon search warrants indicated prosecutors would discard any data that wasn't relevant to the search, the initial search is what violated the defendants' Fourth Amendment protections.

“There is no separate act of 'seizure' that occurs simply by virtue of defining a subset of all data and proclaiming only that subset 'seized,'" Olson wrote.

Attorney Amy Baggio, who represents Joseph O'Shaughnessy, also filed a motion Monday  supporting Olsons argument. She added that the warrant in a 2014 Nevada case was also violated the rights of her client, and others charged in both cases. Several of the Malheur defendants also face charges related to the 2014 standoff between federal officials and rancher Cliven Bundy, Ammon Bundy's father.

“Mr. O’Shaughnessy agrees with Mr. Fry that the Oregon Facebook warrants are unconstitutional; however, the Nevada warrants, which lack the six part 'Search Protocol,' run even farther afoul of the Fourth Amendment,” Baggio wrote.

Both attorneys have asked U.S. District Court Judge Anna Brown to ban the Facebook evidence from being used in the Oregon trial, now scheduled to begin Sept. 7, and the Nevada trial, which will take place sometime after the Oregon case is resolved.

Brown has agreed to hear defense attorneys' arguments against the Facebook data at a future hearing.

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