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- [00:00]
David Gura
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Bloomberg Audio Announcer
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David Gura
Studios Podcasts Radio News
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Lauren Regan
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.
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Zoe Tillman
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 frontline in the battle over First Amendment rights.
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Lauren Regan
They had received an email from Reddit informing them that Reddit had received a legal process from the government.
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Zoe Tillman
The government was asking Reddit to hand over information that would identify this user who, like many people on social media, was posting anonymously. The request was from the Department of Homeland Security, and Lauren says the user didn't know what to make of it.
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Lauren Regan
They had certainly never seen anything like this or heard about anything like this.
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Zoe Tillman
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.
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Lauren Regan
Using a statute that pertained to export and trade, it seemed pretty irrelevant, but
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Zoe Tillman
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. In that case, they'd filed a motion to quash and they'd won. Regan says she took the same approach to the Reddit user summons.
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Lauren Regan
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.
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Zoe Tillman
It was no victory, though. Regan says within 24 hours, the government came back to Reddit with something more serious. A grand jury subpoena.
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Lauren Regan
Normally, grand juries are used to investigate federal crimes, you know, federal felony crimes. But in this instance, because they used an administrative summons first, we know that this was not a normal criminal investigation.
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Zoe Tillman
The government subpoena didn't specify why Regan's client was being investigated or which specific posts were under scrutiny.
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Lauren Regan
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?
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Zoe Tillman
Bloomberg doesn't know the poster's identity and 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 Goode in Minneapolis in January. The user and another user are trading comments about how someone had found the officer's current address.
- [04:20]
Lauren Regan
It doesn't actually provide the address. There are some back and forth kind of funny posts, and our client sort of says, well, first he lived in this location, then he lived in this location. Maybe, 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.
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Zoe Tillman
Regan talked to other lawyers who were representing clients in similar cases.
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Lauren Regan
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.
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Jimmy Jenkins
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.
- [05:39]
Zoe Tillman
That's Jimmy Jenkins, who covers the Justice Department for Bloomberg. He 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.
- [05:55]
David Gura
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.
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Zoe Tillman
It's a tactic that has civil rights groups and legal experts concerned.
- [06:09]
Jimmy Jenkins
Their comments to us were, you know, if my client is getting flagged for this, this means anyone could.
- [06:18]
Zoe Tillman
I'm David Gura, 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. Zoe 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?
- [06:54]
David Gura
What we've been told is that those posts were criticism of ice, of the tactics the administration has used to escalate immigration arrests, to clash with protesters. I think one of the attorneys told us there are 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 maybe looking into possible threats against federal officers, doxing concerns. But what they've said they're 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.
- [07:49]
Zoe Tillman
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?
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Jimmy Jenkins
Well, 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, 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. How do we get to a space where maybe they potentially have committed a more serious crime? It's unclear.
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Zoe Tillman
Jimmy, what do we know about the grand jury subpoenas that Reddit and X have received?
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Jimmy Jenkins
They are a very powerful tool once the grand jury is empaneled. 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.
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Zoe Tillman
Zoe, 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?
- [09:31]
David Gura
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. In most 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.
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Zoe Tillman
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. Are there policy strictures in place at X to deal with things like this?
- [10:49]
David Gura
It's mostly it's similar. It's, you know, 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 this information, so they're giving notice when they're allowed, but they are not going into court.
- [11:11]
Zoe Tillman
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 when 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 in the Department of Homeland Security, didn't respond to requests for comment.
- [11:42]
Jimmy Jenkins
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. united States Attorney's office. And so again, until any, you know, 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
- [12:13]
Zoe Tillman
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?
- [12:24]
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- [14:07]
Zoe Tillman
Zoe, let's just level set a little bit here. Maybe you can explain just traditionally how grand juries work.
- [14:13]
David Gura
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, you know, 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. Your 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. And 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.
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Zoe Tillman
Do they also have power to decide whether, whether to subpoena somebody? Or is that something that's really just germane to the job of the prosecutor?
- [15:49]
David Gura
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.
- [16:05]
Jimmy Jenkins
One 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.
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Zoe Tillman
For a long time, prosecutors have been pretty successful getting grand juries to sign off on, on indictments. That has changed recently. And I wonder why that's been the case.
- [16:37]
David Gura
Well, 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 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, you know, very liberal Democrat, heavy jurisdiction. It'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.
- [17:51]
Zoe Tillman
Zoe. One figure to watch in the social media subpoenas case is U.S. district Chief Judge James Boasberg 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 as a presiding judge. James Boasberg has the power to quash these subpoenas. How does the Fed investigation indicate what he could do in this case?
- [18:13]
David Gura
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. The and issued grand jury subpoenas to the Federal Reserve to get materials. And 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, 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 in some instances in his opinion, misusing the grand jury subpoena powers.
- [19:30]
Zoe Tillman
We 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?
- [19:40]
David Gura
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. The 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.
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Zoe Tillman
This is the big Take from Bloomberg News. I'm David Gura. To get more from the Big Take and unlimited access to all of bloomberg.com, subscribe today@bloomberg.com podcastoffer if 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.
- [21:39]
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