We reported last month on Malcolm Harris, a member of the Occupy Wall Street movement, and his attempt to have a tweet subpoena quashed. The judge in the case denied his motion saying that Tweets are not physical property and can therefore be obtained without a warrant. It was a disappointing ruling, but it made sense. We went on with our lives and just hoped that next time would be different.
Well, there’s been a new development in the case. A development that I don’t think anybody ever saw coming. Twitter, the actual company, has filed a motion with the court to quash the order that Harris’ Tweets be subpoenaed. The company says that Harris does indeed have a proprietary interest “in the content that he submits to Twitter” saying that a subpoena effectively violates Twitter’s Terms of Service which states that users “retain rights to any Content [they] sumbit, post, display on or through Twitter.”
But wait, it gets better. Twitter also states that the subpoena “imposes an undue burden” on themselves by making them break the law. What law? The SCA, or the Stored Communications Act, which they state “expressly permits users to challenge demands for their account records.” They also say that the Fourth Amendment’s “warrant requirement applies even when the government seeks information about allegedly public activities.”
But wait, it gets even better. On a final note, Twitter says that the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings has been violated in this case. To break that down, the case is currently being heard in New York but the subpoena is directed at a company in California. For the court to have access to Harris’ Tweets, New York has to present the appropriate certification to a California court, schedule a hearing and obtain a California subpoena for production. In essence, the court can’t even begin to obtain the Tweets until they issue a subpoena in California.
Wow, I mean, wow. I didn’t think I would ever see the day when an Internet company would lay the legal smackdown on the courts. This is a sound argument and one that the court can’t ignore. Twitter has essentially proven, at least in the case of their service and their state, that the Fourth Amendment does apply online. I’m sure that the court is going to try to use some kind of trick to get access to the Tweets, but it’s going to be even harder for them from now on.
Twitter has set an example here. I was worried when they announced their plans to selectively censor Tweets based on country, and I’m still worried about that. I’m immensely relieved, however, that they are taking a person’s privacy and rights into account with this case. If the court wants to get ahold of those Tweets, they will have to supply a search warrant.
Score one for the Internet. It’s a bright day, go out and enjoy it. Now if only we could apply this same reasoning to trash like CISPA.