Jennifer Granick comments on the recent ruling that Twitter users had no standing to challenge the DOJ’s 2703(d) order to compel Twitter to produce non-content records of some individuals who have been associated with WikiLeaks:
The Court’s reliance on Section 2704 to find no standing is interesting. Although Section 2704(b)(1) is titled “Customer Challenges,” that sub-section is contained within the broader Section 2704, which is entitled “Backup Preservation” and addresses a particular type of government request under the SCA. Specifically, 2704(a)(1) allows the government to compel a service provider to create a backup copy of the contents of the electronic communications sought pursuant to Section 2703(b)(2) in order to preserve those communications, and requires notice to the subscriber subject to that request under (a)(2). Subdivision (b), which the Court relied on, then allows a subscriber who has received notice under subdivision 2704(a)(2) to challenge the order by filing an affidavit. Thus, on its face, the procedure for customer challenges under 2704(b) appears to address specifically government requests that providers create back-ups of content sought under 2704(a)(1). As such, the fact that the standing provision refers to content requests is not surprising.
In the absence of any other provision in the SCA addressing subscriber standing to challenge law enforcement process, however, the Court here applied 2704(b)(1)(A) more broadly as a general limitation on a subscriber’s standing to challenge any order or subpoena under the SCA that does not seek to compel disclosure of the contents of communications as opposed to mere non-content records. Section 2704(b)(1) does not on its face apply this broadly.
Read more on Law Across the Wire and Into the Cloud.