Who Was the User Suspected of Using a Microsoft Email for Drug Trafficking?

II. Whether the SCA Authorizes Enforcement of the Warrant as to Customer Content Stored in Ireland - A. Analytic Framework

The parties stand far apart in the analytic frameworks that they present as governing this case.

Adopting the government’s view, the magistrate judge denied Microsoft’s motion to quash, resting on the legal conclusion that an SCA warrant is more akin to a subpoena than a warrant, and that a properly served subpoena would compel production of any material, including customer content, so long as it is stored at premises “owned, maintained, controlled, or operated by Microsoft Corporation.”  In re Warrant, 15 F. Supp. 3d at 468 (quoting Warrant).  The fact that those premises were located abroad was, in the magistrate judge’s view, of no moment.  Id. at 472.

Microsoft offers a different conception of the reach of an SCA warrant.  It understands such a warrant as more closely resembling a traditional warrant than a subpoena.  In its view, a warrant issued under the Act cannot be given effect as to materials stored beyond United States borders, regardless of what may be retrieved electronically from the United States and where the data would be reviewed.  To enforce the Warrant as the government proposes would effect an unlawful extraterritorial application of the SCA, it asserts, and would work an unlawful intrusion on the privacy of Microsoft’s customer.

Although electronic data may be more mobile, and may seem less concrete, than many materials ordinarily subject to warrants, no party disputes that the electronic data subject to this Warrant were in fact located in Ireland when the Warrant was served. None disputes that Microsoft would have to collect the data from Ireland to provide it to the government in the United States. As to the citizenship of the customer whose e‐mail content was sought, the record is silent. For its part, the SCA is silent as to the reach of the statute as a whole and as to the reach of its warrant provisions in particular. Finally, the presumption against extraterritorial application of United States statutes is strong and binding. See Morrison, 561 U.S. at 255. In these circumstances, we believe we must begin our analysis with an inquiry into whether Congress, in enacting the warrant provisions of the SCA, envisioned and intended those provisions to reach outside of the United States. If we discern that it did not, we must assess whether the enforcement of this Warrant constitutes an unlawful extraterritorial application of the statute. We thus begin with a brief review of Morrison, which outlines the operative principles.