Twitter has moved to quash a court order requiring the company to hand over data on one of its users. The user, Malcolm Harris, an Occupy Wall Street protester who is being prosecuted in New York for disorderly conduct, has been battling a government subpoena for his communications.
On April 20, a judge ruled Harris did not have standing to stop the state’s District Attorney from compelling Twitter to produce “any and all user information,” including his email address as well as any tweets posted between September 15 and December 31 of last year. However, under a provision of the federal Stored Communications Act (SCA) that allows a service provider to quash orders for information if it would “cause an undue burden,” the company submitted a motion to protect Harris’ data.
The defense of Harris—a user—that Twitter submitted is significant. It challenges a judge’s ruling that Harris had “no right to challenge the District Attorney’s subpoena for his own communications and account information” because he supposedly has “no proprietary interest in the content that he submits to Twitter.” This, Twitter points out, “contradicts Twitter’s Terms of Service and express language of the SCA.”
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.
Twitter finds handing over data would force the company to violate federal law, namely the Fourth Amendment. Now, the Obama Administration and Congress may not have a problem with undermining a person’s Fourth Amendment rights to privacy, but Twitter does:
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, and the Fourth Amendment’s warrant requirement applies even when the government seeks information about allegedly public activities. Moreover, Warshak and Jones notwithstanding, the terms of the SCA provide that an order issued…can only compel a provider to produce content that is more than 180 days old…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.
Finally, Twitter is a California-based company. Under California law, a Uniform Act applies to requests for documents. A “criminal litigant cannot compel production of documents” unless “appropriate certification” is presented in California Court, a hearing is scheduled and a California subpoena for production is obtained. None of this has happened, so the subpoena and order for data does not comply with the Uniform Act. The only way to get around this would be if the District Attorney obtained a warrant for Harris’ data, something those prosecuting Harris for disorderly conduct do not have.
It cannot be overstated how important it is that Twitter is defending the privacy rights of users. Harris is not the only user, who has had his data targeted. Jeff Rae, another Occupy Wall Street protester, was given a subpoena for his data one month after Harris was subpoenaed. A cover letter he received indicated four other users’ accounts were subpoenaed for information. Prosecutors in Boston subpoenaed Twitter for details on the identity of a user who was posting public details on Boston police officers after Occupy Boston was removed from Dewey Square. And, three volunteers for WikiLeaks (Jacob Appelbaum, Rop Gonggrijp and Icelandic parliamentarian Birgitta Jonsdottir) have been targeted for their personal data by the US government.
The American Civil Liberties Union and the Electronic Frontier Foundation (EFF) have tried to challenge the government, which has sought to secretly compel the disclosure of data without letting users know government orders are being filed. They have gone after this information without obtaining a warrant and operate under the presumption that it is not private and the user has no right to prevent the government from having access. So, Twitter’s public challenge is not only a defense of users’ privacy rights but also the right of users to not have their data disclosed without them having proper notice.
Twitter was ordered to turn over information on the WikiLeaks volunteers. It did not have to let them know they had been given a court order, but they did inform them and that led to the volunteers challenging the order in court (albeit unsuccessfully).
As Aden Fine writes in an ACLU blog post on this recent move by Twitter:
Law enforcement agencies—both the federal government and state and city entities—are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet. And while the individual Internet users can try to defend their rights in the rare circumstances in which they find out about the requests before their information is turned over, that may not be enough. Indeed, even though Twitter provided notice to the Twitter user in this particular case, and even though he was able to get an attorney to file a motion seeking to quash the subpoena, the court found that the Twitter user did not have legal “standing” to challenge the D.A.’s subpoena.
If Internet users cannot protect their own constitutional rights, the only hope is that Internet companies do so. [emphasis added]
So, the bigger story here is a precedent violating Twitter users’ rights was set when a DA declared Harris could not challenge the subpoena. Harris was improperly stripped of his right to use the court to protect his constitutional right to privacy. Twitter saw this and decided to step in and challenge the subpoena and court order for Harris’ data, because what the DA and judge are doing is improper and illegal.
It is virtually guaranteed the courts will give DAs whatever they want if they push hard enough, but, as long as Twitter asserts its users have rights, running roughshod over individuals by seeking to engage in warrantless data fishing will be much harder for state and federal governments to get away with.