A few weeks ago, we reported on the recent decision of the People of the State of New York v. Harris, Index No. 080152/2011, (Crim. Ct. Apr. 20, 2012). There, the Court denied defendant Malcolm Harris’s motion to quash the District Attorney’s subpoena requiring the production of defendant’s user information, email addresses, as well as any Tweets posted for a four-month period from Twitter, Inc., all in connection with criminal charges pending against Mr. Harris due to his alleged involvement in an Occupy Wall Street protest. You can read our most recent blog post on this case from May 23. Twitter subsequently moved to quash the Court’s order on May 7, 2012, on the basis that the order imposes an undue burden upon it pursuant to Section 2703(d) of the Stored Communications Act (18 U.S.C. §§ 2701-2711) (the “SCA”), which 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 compliance with the Court’s order compelling the production of defendant’s Twitter user information imposes an undue burden for at least three reasons.
First, Twitter argues that the Court mistakenly concluded that defendant lacked a proprietary interest in the requested information in direct contradiction of Twitter’s Terms of Service, which state that users “retain [their] rights to any Content [they] submit, post or display on or through” Twitter’s services. Hence, it argues, Twitter’s users do not lack standing to challenge subpoenas of their electronically stored information. Similarly, Twitter argued that the Court’s decision contradicted Section 2704(b) of the SCA, which expressly provides that users on notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” If the Court’s order was to stand, Twitter argues that it would be put in an indefensible position of either producing “user communications and account information in response to all subpoenas or attempting to vindicate its users rights” by moving to quash these subpoenas independently despite often knowing little about the underlying facts to adequately support challenges to improper subpoenas.
Second, Twitter argues that the order compels it to violate “federal law” with respect to the portions of the SCA that have been held to infringe upon the protections of the Fourth Amendment. In particular, Twitter argues that the SCA violates the Fourth Amendment “to the extent it requires providers to disclose the contents of communications in response to anything less than a search warrant” (citing U.S. v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)) and that the Fourth Amendment’s warrant requirement “applies even when the government seeks information about allegedly public activities.” (citing U.S. v. Jones, 132 S. Ct. 945, 949 (2012)). Twitter further argues that the SCA provides that “[c]ontent less than 180 days old may only be disclosed pursuant to a search warrant,” but that a substantial portion of the information sought by the District Attorney’s subpoena is not yet 180 days old.
Lastly, Twitter argues pursuant to the California Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (the “Uniform Act”), that “a criminal litigant cannot compel the 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.” Consequently, because both the subpoena and the order failed to comply with the Uniform Act, Twitter claims that the request for production of Harris’s Tweets is precluded.
The Court’s decision regarding Twitter’s motion could have a significant impact on obtaining third-party discovery from service providers. We anticipate that this case will be the subject of Appellate review based on the cutting edge issues of privacy rights in social media posts and application of the SCA to social media-related subpoenas. Stay tuned.
Paul A. Saso is a Director on the Gibbons E-Discovery Task Force.