TALLAHASSEE — Lawyers for ousted state data analyst Rebekah Jones on Wednesday asked the court to order state police to return the computer equipment seized from her home, arguing that the state is accusing her of doing something that isn’t a crime.
Richard E. Johnson, the Tallahassee attorney representing Jones, filed the motion in Leon County Circuit Court and attached an affidavit from a data expert who concluded that the evidence used by state police does not conclusively link Jones to the message she is alleged to have sent and, instead, “seems potentially consistent with (Jones’) assertion that the raid was retaliatory.”
Last week Jones sued FDLE, alleging that the basis of a Dec. 7 search of her Tallahassee home was “a sham” designed to punish her for speaking out against Gov. Ron DeSantis for “refusing to falsify statistics on a ‘dashboard’ she had created for (the Department of Health).” In May, DOH fired Jones for insubordination and she subsequently filed a whistle-blower complaint against the state.
“The basis for this motion is twofold: first, the act alleged against Plaintiff is not even theoretically a crime and thus could not support a search warrant against anybody; and second, no probable cause was shown sufficient to link Plaintiff to the alleged message transmission,’’ the motion reads.
It asks the court to order the Florida Department of Law Enforcement to return Jones’ computers, cell phones and flash drives.
According to the search warrant affidavit of FDLE agent Noel Pratts, the state had probable cause to believe Jones was behind an anonymous message sent on Nov. 10 to Jones’ former colleagues at the Florida Department of Health using the emergency operations ReadyOps system.
The message read: “It’s time, to speak up before another 17,000 people are dead. You know, this is wrong. You don’t have to be part of this. Be a hero. Speak out before it’s too late.”
Jones has denied writing the message but, since the raid, evidence has emerged that username and password to the private email system was posted in at least seven pdf files that were widely available on the Internet to anyone who had the address.
Tech expert testifies
The motion filed Wednesday includes the affidavit of Bennett Cyphers, a technology expert with the Electronic Frontier Foundation, a San Francisco-based nonprofit that defends individuals and technologies from what it considers abusive legal threats.
Cyphers concluded that the decision by the state not to seize Jones’ router when it executed the search warrant was a “strange” omission and the state failed to provide “sufficient evidence” linking the IP address of the unauthorized message to Jones’ home.
He said an IP address “cannot be used to identify a particular device or person,” since IP addresses used by one customer in one week “may be used by a different customer next week.” He added: “It is common for a local network to be shared by not only family or friends, but also complete strangers.”
“In my opinion, this calls into question whether or not officials considered the possibility that someone outside the Jones household accessed the ReadyOp system,’’ he wrote.
Cyphers concluded: “As a result, the affidavit lacked necessary information to support the issuance of a search warrant for Ms. Jones’ home. Further, the raid itself appears not to have searched a device — the router — that would be most likely to contain evidence linking the IP address named in the affidavit with a particular device. This omission is strange, and seems potentially consistent with plaintiff’s assertion that the raid was retaliatory.”
Password wasn’t a secret
After the raid, a report from a technology news site, Ars Technica, said that readers of Reddit discovered that the Department of Health had published the email address and password to its private message system and posted it in at least seven pdf files that were widely available on the Internet to anyone who had the address.
Johnson argues that because DOH did nothing to restrict access to the site and can produce no policy indicating it is a violation to access the site, accessing the site was not a crime and the search warrant was issued in error.
“The username and password are the same for every single member of the site and if you want to become a member of the site all you do is type that in,’’ Johnson told the Times/Herald. “So how is that a crime? It’s not a restricted site.”
Johnson said the search warrant states that Pratts, a cyber crime investigator, reached the conclusion based on what he said were “investigative resources” but he does not cite what they were and does not refer to any attempt to subpoena records from Comcast. The search warrant also does not cite any state policy that appears to be violated.
“What were these investigative resources,’’ Johnson asked. “Were they a Ouija board?”
FDLE has not charged Jones with a crime. FDLE Commissioner Rick Swearingen has said the investigation is ongoing. He told reporters last week that the agency subpoenaed Comcast and thereafter connected Jones to the unauthorized message.
“If she’s implying that somehow she was targeted in this investigation, that’s impossible,” he said. “Because nobody could have known who that IP address belong to until we got the subpoena results back from Comcast.”
Meanwhile, Jones has become somewhat of a cable television celebrity and has raised more than $500,000 from two GoFundMe accounts. Her attorney said she is not planning to be in Florida much longer.
“She’s very frightened and worried they are going to come after her again,’’ Johnson said, adding that Jones is making plans to move with her family out of state.