The Methods Under Which the Government May Gain Access to a User's Data

D. Discerning the “Focus” of the SCA

This conclusion does not resolve the merits of this appeal, however, because “it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States.” Morrison, 561 U.S. at 266.  When we find that a law does not contemplate or permit extraterritorial application, we generally must then determine whether the case at issue involves such a prohibited application. Id at 266– 67. As we recently observed in Mastafa v. Chevron Corp., “An evaluation of the presumption’s application to a particular case is essentially an inquiry into whether the domestic contacts are sufficient to avoid triggering the presumption at all.” 770 F.3d 170, 182 (2d Cir. 2014).

In making this second‐stage determination, we first look to the “territorial events or relationships” that are the “focus” of the relevant statutory provision.  Id. at 183 (alterations and internal quotation marks omitted).  If the domestic contacts presented by the case fall within the “focus” of the statutory provision or are “the objects of the statute’s solicitude,” then the application of the provision is not unlawfully extraterritorial.  Morrison, 561 U.S. at 267.  If the domestic contacts are merely secondary, however, to the statutory “focus,” then the provision’s application to the case is extraterritorial and precluded.

In identifying the “focus” of the SCA’s warrant provisions, it is helpful to resort to the familiar tools of statutory interpretation, considering the text and plain meaning of the statute, see, e.g., Gottlieb v. Carnival Corp., 436 F.3d 335, 337 (2d Cir. 2006), as well as its framework, procedural aspects, and legislative history.  Cf. Morrison, 561 U.S. at 266–70 (looking to text and statutory context to discern focus of statutory provision); Loginovskaya, 764 F.3d at 272–73 (analyzing text, context, and precedent to discern focus for Morrison purposes). Having done so, we conclude that the relevant provisions of the SCA focus on protecting the privacy of the content of a user’s stored electronic communications.  Although the SCA also prescribes methods under which the government may obtain access to that content for law enforcement purposes, it does so in the context of a primary emphasis on protecting user content ― the “object[] of the statute’s solicitude.”  Morrison, 561 U.S. at 267.