Yesterday, in a motion to quash the subpoena against Occupy Wall Street participant Malcolm Harris, Twitter argued that “users retain all rights to content.” This is a major push-back against a government that is more and more interested in invading online user privacy.
The Memorandum in Support of Non-Party Twitter, Inc.’s Motion to Quash Order by with Twitter acknowledging that the Order (subpoena) holds “that Twitter must produce ‘basic user information’ in response to the Subpoena, and ‘compel[s] Twitter to disclose @destructuremal account’s Tweets, pursuant to 18 U.S.C. § 2703(d).’”
Twitter then noted that an Order can be quashed if there is an “undue burden” on the provider. They offer three reasons why it is an undue burden.
First, the Order surprisingly holds that’ Mr. Harris has no right to challenge the District Attorney’s subpoena for his own communications and account information on Twitter. analysis, based on the assertion that Mr. Harris has no proprietary interest in the content that he submits to Twitter, contradicts Twitter’s Terms of Service and the 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.”
Twitter then argues that an undue burden is created when it has to fight for the rights of its users.
“Second, the Order imposes an undue burden on Twitter by forcing it to violate federal law,” writes Twitter in the Motion. “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.”
The Fourth Amendment, of course, protects against unreasonable search and seizure, requiring the government to furnish a warrant sanctioned and supported by probable cause. Further, the Supreme Court has ruled that the Fourth Amendment applies to the states (New York in Harris’s case) by way of the Due Process Clause in the Fourteenth Amendment.
And, finally, Twitter argues that according to the Uniform Act 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.” In other words, the New York court cannot demand Twitter’s user records without the appropriate certification from a California court, which would require a hearing to obtain a California subpoena for production of the records.
Twitter goes on to remind the Court that its Terms of Service make “absolutely clear that its users own their content.” Adding, “The Terms of Service expressly state: You retain your rights to any Content you submit, post or display on or through the Services.”
It’s great reading, especially since it’s a social media company fighting for its users. Sublime.
Read the rest of the Motion to Quash here.