The subpoena requested the production of “[a]ny and all user information, including email address, as well as any and all tweets posted for the period of 9/15/2011-12/31/2011.” In the Court’s decision (hereafter the “Order”), the Court ruled that Twitter had to produce @destructuremal’s “basic user information” all of his “tweets” for that period, pursuant to 18 U.S.C. § 2703(d). In response to that Order, on May 7, 2012, Twitter filed a “Memorandum in Support of Non-Party Twitter, Inc.’s Motion to Quash § 2703(d) Order.”

The subpoena requested the production of “[a]ny and all user information, including email address, as well as any and all tweets posted for the period of 9/15/2011-12/31/2011.” In the Court’s decision (hereafter the “Order”), the Court ruled that Twitter had to produce @destructuremal’s “basic user information” all of his “tweets” for that period, pursuant to 18 U.S.C. § 2703(d).In response to that Order, on May 7, 2012, Twitter filed a “Memorandum in Support of Non-Party Twitter, Inc.’s Motion to Quash § 2703(d) Order.” In their memorandum Twitter argued essentially two points:Twitter’s users have standing to move to quash subpoenas directed to Twitter; andThe order compels Twitter to violate federal law.In regard to their first point, Twitter argued that their terms of service expressly states: “You retain your rights to any Content you submit, post or display on or through the Services.”

After a recent District of Columbia federal court decision finding that Royal Caribbean Cruises is a covered provider under the SCA, that needs to change. See In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d),Misc. No. 17-2682, 2018 WL 1521772 (D.D.C. Mar. 8, 2018) (Royal Caribbean). The SCA and its state counterparts impose a complex set of rules on covered entities regarding the disclosure of customer and subscriber information.

Stored Communications Act Enacted in 1986, the SCA imposes non-disclosure obligations on providers of electronic communications services (ECS) and remote computing services (RCS), with certain exceptions. One of those exceptions was 18 U.S.C. §2703, which establishes the condition under which the government may access stored communications. The government may obtain access to basic subscriber and transaction information through an administrative subpoena.

Background Stored Communications Act The Stored Communications Act (“SCA”), which was enacted in 1986, imposes non-disclosure obligations on electronic communications services (ECS) and remote computing services (RCS), with certain exceptions. One of those exceptions was 18 U.S.C. § 2703, which establishes the condition under which the government may access stored communications. The government may obtain access to basic subscriber and transaction information through an administrative subpoena.

11The Shrinking Distinction between 'Record' and 'Content' Data under the SCA The SCA was enacted in 1986, and was intended to extend privacy protections to new forms of telecommunications and computer technology then just emerging, e.g., cell phones and email.12 The core of the SCA is 18 U.S.C. § 2703, which articulates procedures by which the government may obtain electronic communications and related information. Section 2703 distinguishes between "content" and (non-content) "records," giving greater protection to the content of a communication.

Providers, upon request by a government entity, must preserve data in their possession for at least 90 days (180 days if the government entity requests) pending the issuance of a court order or other process. See 18 USC. § 2703(f). Id.

Invoking Comity Analysis in Law Enforcement Requests While the U.S. government gained greater access to stored content than Microsoft had argued existed under prior law, the CLOUD Act has two comity provisions that provide potentially significant limits on U.S. government access. The first provision, which will be codified at 18 U.S.C. §2703(h)(2), applies to requests that create possible conflicts with “qualifying” foreign governments – the governments that have in place the sort of executive agreements with the U.S. that are described below. In such instances, to account for potential conflicts with their foreign legal obligations, the Act allows service providers subject to legal process to motion to modify or quash where the service provider reasonably believes that (a) the customer/subscriber is not a U.S. person and does not reside in the U.S., and (b) disclosing the relevant data would cause the provider to violate foreign law.

Grady v. North Carolina, 135 S. Ct. 1368 (2015)Placing a GPS device on a probationer as part of his sex offender registry conditions is a Fourth Amendment search that requires application of the “reasonableness” requirement of the Fourth Amendment.United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc)Reversing the panel opinion, the en banc Eleventh Circuit holds that 18 U.S.C. § 2703 is not unconstitutional and there is no constitutional requirement that law enforcement establish probable cause, or obtain a search warrant, prior to obtaining historical cell tower information.In re Application of the United States For Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)The Fifth Circuit holds that for historical cell site data (this opinion does not involve real time cell site data), the government may rely on a § 2703(d) application to the court and it is not necessary to establish probable cause in order to obtain such information from a cell phone provider.

According to the Fourth Circuit, cell phone subscribers possess a reasonable expectation of privacy in such information, and a warrant is required. In contrast, the Eleventh and Fifth Circuits have held that a lower-threshold court order is all that is needed.BackgroundUnder the Stored Communications Act, 18 U.S.C. § 2703(c) and (d), the government can obtain electronic communication service records of subscriber services through a warrant or a court order. The latter does not require probable cause and can be obtained if there are “reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.”