Three cheers for Twitter's legal team!
The social networking company has filed a memorandum in support of Malcolm Harris' motion to quash a NYC district attorney's subpoena for his account information, marking what appears to be the first time a large third party content holder like Twitter has fought an administrative subpoena on behalf of a user.
Perhaps even more exciting are the arguments Twitter makes to support its case.
Twitter's arguments to the court largely echo what we've been saying about these judicial-oversight-free subpoenas, concering the user's rights to the content he or she produces on the service under the Stored Communications Act; the Fourth Amendment; and California state law.
In a clear rebuke of the government's claims, Twitter wrote that in fact users do retain rights to their data, even when it is hosted by the company:
Twitter’s Terms of Service unequivocally state that its users "retain [their] rights to any Content [they] submit, post or display on or through" Twitter (available at http://twitter.com/tos). Moreover, the SCA, 18 U.S.C. § 2704(b), expressly permits users to challenge demands for their account records. To hold otherwise imposes a new and overwhelming burden on Twitter to fight for its users’ rights, since the Order deprives its users of the ability to fight for their own rights when faced with a subpoena from New York State.
Second, the Order imposes an undue burden on Twitter by forcing it to violate federal law. Specifically, the SCA has been held to violate the Fourth Amendment to the U.S. Constitution to the extent it requires providers to disclose the contents of communications in response to anything less than a search warrant, Warshak, 631 F.3d 266, 288 (6th Cir. 2010), and the Fourth Amendment’s warrant requirement applies even when the government seeks information about allegedly public activities. US. v. Jones, 132 S. Ct. 945, 949 (2012). Moreover, Warshak and Jones notwithstanding, 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. See 18 U.S.C. § 2703(a). Content less than 180 days old may only be disclosed pursuant to a search warrant, id., yet the Order compels Twitter to shortly produce a multitude of content that will not be more than 180 days old until sometime this summer.