Twitter Seeks To Quash Order Requiring Production of Account Holder’s User Information, Tweets

People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.)

Following up on the case summary from last week (posted May 1, 2012) in which the court denied defendant’s motion to quash the District Attorney’s subpoena and issued an order requiring the production of defendant’s user information and Tweets from Twitter, Inc., this week brings us Twitter, Inc.’s motion to quash the court’s order.  Filed on May 7, 2012, the motion seeks to quash the court’s order on the grounds that the order imposes an undue burden on Twitter for reasons including that it requires them to violate the law.

Opening its brief, Twitter notes that section 2703(d) of the Stored Communications Act provides that “[a] court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if. . . compliance with such order otherwise would cause an undue burden on such provider."  Twitter argues that the order compelling its production of the defendant’s information imposes an undue burden for three reasons.

First, Twitter argues that the court’s determination that the defendant has no proprietary interest in the requested information, and thus no standing to challenge the subpoena, was in direct contradiction to Twitter’s Terms of Service, which specifically state that users “retain [their] rights to any Content [they] submit, post or display on or through” Twitter.  Moreover, 18 U.S.C. § 2704(b) “expressly permits users to challenge demands for their records.”  To hold otherwise, Twitter argues, would “impose a new and overwhelming burden on Twitter to fight for its users’ rights” since the Order precludes users from fighting for themselves when faced with a subpoena from New York state.

Second, Twitter argues that the order forces it to “violate federal law.”  Specifically, Twitter argues that the Stored Communications Act (SCA) has been held to violate the Fourth Amendment “to the extent that it requires providers to disclose the contents of communications in response to anything less than a search warrant” (U.S. v. Warshak, 631 F.3d 266, 288 (6th Cir. Dec. 2010)) and that “the Fourth Amendment applies even when the government seeks information about allegedly public activities.” (U.S. v. Jones, 132 S. Ct. 945, 949 (2012))  Additionally, “the terms of the SCA provide that an order issued under § 2703(d) can only compel a provider to produce content that is more than 180 days old," and much of the information sought by the District Attorney’s subpoena is not.

Finally, Twitter argues that pursuant to the California Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, “a criminal litigant cannot compel production of documents from a California resident like Twitter without presenting the appropriate certification to a California court, scheduling a hearing and obtaining a California subpoena for production.”  Thus, because neither the subpoena nor the court’s order comply with those requirements, production is precluded.

The motion provides additional detail as to each argument and is available in full here.