Bloomberg 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 frontline 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.

The request was from the Department of

Homeland Security, and Lauren says the

user didn't know what to make of it.

>> You know, they had certainly never seen

anything like this or heard about

anything like this.

>> The government's request to Reddit was

called an administrative summon, seeking

details that would unmask the anonymous

social media poster. And to Rean, the

legal grounds seemed shaky. using a

statute that pertained to export and

trade. It seemed pretty irrelevant,

>> but the strategy was familiar. Rean says

her firm had just helped another client

beat back a similar summon sent to a

different social media company. In that

case, they'd filed a motion to quash and

they'd won. Rian says she took the same

approach to the Reddit user 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.

Rean 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, you know,

federal felony crimes, but in this

instance,

because they used an administrative

summon first, we know that this was not

a normal criminal investigation.

>> The government subpoena didn't specify

why Rean'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 Rean 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. the 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 like 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

uh 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.

>> Regan talked to other lawyers who were

representing clients in similar cases.

We realized that all of our clients

uh had posted anti-ICE sentiments, you

know, 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.

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 a

serious escalation this is. That's Jimmy

Jenkins who covers the Justice

Department for Bloomberg. He and Zoe

Tilman, a Bloomberg legal reporter,

learned about Rean'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.

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 post

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. But what they've said

their 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. um 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 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?

>> Well, that's the thing. Uh we don't know

the legal justification yet, and the

attorneys told us that that is something

that they have never seen before either.

you know, normally you at least have an

inkling of, you know, what your client

is facing, what, you know, what grounds

the government is trying to stand on.

And we don't know, uh, both attorneys in

the cases that we profiled have filed

motions to unseal the cases, in which

case we would, uh, learn a great deal

more about, um, you know, what the

government thinks has happened here. And

we do know that the administrative

summons uh 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.

>> 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 impanled. Uh, one

former uh, United States attorney told

me that, you know, 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 will be surprised.

You know, credit card, banking

information, home address, your, you

know, your your other social media

handles. So, basically, you know, your

entire presence online, u, just all

kinds of identifying information that

people may not be aware that the

government has the power to go and get.

Zoe, what does it mean if you're a

person whose account information has

been subpoenaed? Just a basic question

here, but um how are you being informed

that your account is 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. 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.

>> 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 is important. Are

there policy structures 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 this information." 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

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. 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. Uh we know that

this is uh both of the subpoenas that we

reviewed were from the uh DC United

States Attorney's Office. And so again

until any um you know more people come

forward with similar cases uh or until

these cases are unsealed uh 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?

>> Zoe, let's just level set a little bit

here and 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. Um, 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, 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. Um, 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 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.

>> Do they also have power to decide

whether to subpoena somebody or is that

something that's really just gerine to

the job of the 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.

>> 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.

>> 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.

>> 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

ground swell 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 DC 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.

Zoe, one figure to watch in the social

media subpoenas case is US District

Chief Judge James Boseberg in DC. 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 Boseberg 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, you know, objection to a

subpoena, they bring it to Judge

Bowisburg. And I think you mentioned the

Federal Reserve case is a great example

where the DC US 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. Um, and the Federal Reserve

filed motions to quash with Chief Judge

Boisberg. 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.

>> 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?

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 flash

point 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 um 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.

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 at

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