Microsoft Refuses to Turn Over Emails of Customer Suspected of Drug Trafficking

Introduction

Microsoft Corporation appeals from orders of the United States District Court for the Southern District of New York (1) denying Microsoft’s motion to quash a warrant (“Warrant”) issued under the Stored Communications Act, 18 U.S.C. §§ 2701 et seq., to the extent that the orders required Microsoft to produce the contents of a customer’s e‐ mail account stored on a server located outside the United States, and (2) holding Microsoft in civil contempt of court for its failure to comply with the Warrant.  We conclude that § 2703 of the Stored Communications Act does not authorize courts to issue and enforce against U.S.‐based service providers warrants for the seizure of customer e‐mail content that is stored exclusively on foreign servers.

REVERSED, VACATED, AND REMANDED.

Judge Lynch concurs in a separate opinion.

E. JOSHUA ROSENKRANZ, Orrick, Herrington & Sutcliffe LLP

(Robert M. Loeb and Brian P. Goldman, Orrick,

Herrington & Sutcliffe LLP, New York, NY; Guy

Petrillo, Petrillo Klein & Boxer LLP, New York, NY;

James M. Garland and Alexander A. Berengaut,

Covington & Burling LLP, Washington, DC; Bradford

L. Smith, David M. Howard, John Frank, Jonathan

Palmer, and Nathaniel Jones, Microsoft Corp.,

Redmond, WA; on the brief), for Microsoft Corporation.

JUSTIN ANDERSON, Assistant United States Attorney (Serrin

Turner, Assistant United States Attorney, on the brief),

for Preet Bharara, United States Attorney for the

Southern District of New York, New York, NY.

Brett J. Williamson, David K. Lukmire, Nate Asher,

O’Melveny & Myers LLP, New York, NY; Faiza Patel,

Michael Price, Brennan Center for Justice, New York,

NY; Hanni Fakhoury, Electronic Frontier Foundation,

San Francisco, CA; Alex Abdo, American Civil

Liberties Union Foundation, New York, NY; for Amici

Curiae Brennan Center for Justice at NYU School of

Law, American Civil Liberties Union, The

Constitution Project, and Electronic Frontier

Foundation, in support of Appellant.

Kenneth M. Dreifach, Marc J. Zwillinger, Zwillgen PLLC,

New York, NY and Washington, DC, for Amicus Curiae

Apple, Inc., in support of Appellant.

Andrew J. Pincus, Paul W. Hughes, James F. Tierney, Mayer

Brown LLP, Washington, DC, for Amici Curiae BSA |

The Software Alliance, Center for Democracy and

Technology, Chamber of Commerce of the United

States, The National Association of Manufacturers,

and ACT | The App Association, in support of

Appellant.

Steven A. Engel, Dechert LLP, New York, NY, for Amicus

Curiae Anthony J. Colangelo, in support of Appellant.

Alan C. Raul, Kwaku A. Akowuah, Sidley Austin LLP,

Washington, DC, for Amici Curiae AT&T Corp.,

Rackspace US, Inc., Computer & Communications

Industry Association, i2 Coalition, and Application

Developers Alliance, in support of Appellant.

Peter D. Stergios, Charles D. Ray, McCarter & English, LLP,

New York, NY and Hartford, CT, for Amicus Curiae

Ireland.

Peter Karanjia, Eric J. Feder, Davis Wright Tremaine LLP,

New York, NY, for Amici Curiae Amazon.com, Inc.,

and Accenture PLC, in support of Appellant.

Michael Vatis, Jeffrey A. Novack, Steptoe & Johnson LLP,

New York, NY;  Randal S. Milch, Verizon

Communications Inc., New York, NY; Kristofor T.

Henning, Hewlett‐Packard Co., Wayne, PA; Amy

Weaver, Daniel Reed, Salesforce.com, Inc., San

Francisco, CA; Orin Snyder, Thomas G. Hungar,

Alexander H. Southwell, Gibson, Dunn & Crutcher

LLP, New York, NY; Mark Chandler, Cisco Systems,

Inc., San Jose, CA; Aaron Johnson, eBay Inc., San Jose,

CA, for Amici Curiae Verizon Communications, Inc.,

Cisco Systems, Inc., Hewlett‐Packard Co., eBay Inc.,

Salesforce.com, Inc., and Infor, in support of Appellant.

Laura R. Handman, Alison Schary, Davis Wright Tremaine

LLP, Washington, DC, for Amici Curiae Media

Organizations, in support of Appellant.

Philip Warrick, Klarquist Sparkman, LLP, Portland, OR, for

Amici Curiae Computer and Data Science Experts, in

support of Appellant.

Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White

& Case, New York, NY, for Amicus Curiae Jan Philipp

Albrecht, Member of the European Parliament, in

support of Appellant.

Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White

& Case, New York, NY; Edward McGarr, Simon

McGarr, Dervila McGarr, McGarr Solicitors, Dublin,

Ireland, for Amicus Curiae Jan Philipp Albrecht,

Member of the European Parliament, in support of

Appellant.

SUSAN L. CARNEY, Circuit Judge:

Microsoft Corporation appeals from orders of the United States District Court for the Southern District of New York denying its motion to quash a warrant (“Warrant”) issued under § 2703 of the Stored Communications Act (“SCA” or the “Act”), 18 U.S.C. §§ 2701 et seq., and holding Microsoft in contempt of court for refusing to execute the Warrant on the government’s behalf.  The Warrant directed Microsoft to seize and produce the contents of an e‐mail account that it maintains for a customer who uses the company’s electronic communications services.  A United States magistrate judge (Francis, M.J.) issued the Warrant on the government’s application, having found probable cause to believe that the account was being used in furtherance of narcotics trafficking.  The Warrant was then served on Microsoft at its headquarters in Redmond, Washington.

Microsoft produced its customer’s non‐content information to the government, as directed.  That data was stored in the United States.  But Microsoft ascertained that, to comply fully with the Warrant, it would need to access customer content that it stores and maintains in Ireland and to import that data into the United States for delivery to federal authorities.  It declined to do so.  Instead, it moved to quash the Warrant.  The magistrate judge, affirmed by the District Court (Preska, C.J.), denied the motion to quash and, in due course, the District Court held Microsoft in civil contempt for its failure.

Microsoft and the government dispute the nature and reach of the Warrant that the Act authorized and the extent of Microsoft’s obligations under the instrument.  For its part, Microsoft emphasizes Congress’s use in the Act of the term “warrant” to identify the authorized instrument.  Warrants traditionally carry territorial limitations:   United States law enforcement officers may be directed by a court‐issued warrant to seize items at locations in the United States and in United States‐controlled areas, see Fed. R. Crim. P. 41(b), but their authority generally does not extend further.

The government, on the other hand, characterizes the dispute as merely about “compelled disclosure,” regardless of the label appearing on the instrument.  It maintains that “similar to a subpoena, [an SCA warrant] requir[es] the recipient to deliver records, physical objects, and other materials to the government” no matter where those documents are located, so long as they are subject to the recipient’s custody or control.  Gov’t Br. at 6.  It relies on a collection of court rulings construing properly‐ served subpoenas as imposing that broad obligation to produce without regard to a document’s location.  E.g., Marc Rich & Co., A.G. v. United States, 707 F.2d 663 (2d Cir. 1983).

For the reasons that follow, we think that Microsoft has the better of the argument.  When, in 1986, Congress passed the Stored Communications Act as part of the broader Electronic Communications Privacy Act, its aim was to protect user privacy in the context of new technology that required a user’s interaction with a service provider.  Neither explicitly nor implicitly does the statute envision the application of its warrant provisions overseas.  Three decades ago, international boundaries were not so routinely crossed as they are today, when service providers rely on worldwide networks of hardware to satisfy users’ 21st–century demands for access and speed and their related, evolving expectations of privacy.

Rather, in keeping with the pressing needs of the day, Congress focused on providing basic safeguards for the privacy of domestic users.  Accordingly, we think it employed the term “warrant” in the Act to require pre‐disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States.  It did not abandon the instrument’s territorial limitations and other constitutional requirements.  The application of the Act that the government proposes ― interpreting “warrant” to require a service provider to retrieve material from beyond the borders of the United States ―would require us to disregard the presumption against extraterritoriality that the Supreme Court re‐stated and emphasized in Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010) and, just recently, in RJR Nabisco, Inc. v. European Cmty., 579 U.S. __, 2016 WL 3369423 (June 20, 2016).  We are not at liberty to do so.

We therefore decide that the District Court lacked authority to enforce the Warrant against Microsoft.  Because Microsoft has complied with the Warrant’s domestic directives and resisted only its extraterritorial aspects, we REVERSE the District Court’s denial of Microsoft’s motion to quash, VACATE its finding of civil contempt, and REMAND the cause with instructions to the District Court to quash the Warrant insofar as it directs Microsoft to collect, import, and produce to the government customer content stored outside the United States.