Who in the US Has the Authority to Issue Warrants for Data Stored Overseas?

1. Plain Meaning of the SCA

As observed above, the SCA permits the government to require service providers to produce the contents of certain priority stored communications “only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.”  18 U.S.C. § 2703(a), (b)(1)(a).  The provisions in § 2703 that permit a service provider’s disclosure in response to a duly obtained warrant do not mention any extraterritorial application, and the government points to no provision that even implicitly alludes to any such application.  No relevant definition provided by either Title I or Title II of ECPA, see 18 U.S.C. §§ 2510, 2711, suggests that Congress envisioned any extraterritorial use for the statute.

When Congress intends a law to apply extraterritorially, it gives an “affirmative indication” of that intent.  Morrison, 561 U.S. at 265.  It did so, for example, in the statutes at issue in Weiss v. National Westminster Bank PLC, 768 F.3d 202, 207 & n.5 (2d Cir. 2014) (concluding that definition of “international terrorism” within 18 U.S.C. § 2331(1) covers extraterritorial conduct because Congress referred to acts that “occur primarily outside the territorial jurisdiction of the United States”) and United States v. Weingarten, 632 F.3d 60, 65 (2d Cir. 2011) (concluding that 18 U.S.C. § 2423(b) applies to extraterritorial conduct because it criminalizes “travel in foreign commerce undertaken with the intent to commit sexual acts with minors” that would violate United States law had the acts occurred in the jurisdiction of the United States).  We see no such indication in the SCA.

We emphasize further that under § 2703, any “court of competent jurisdiction”―defined in § 2711(3)(B) to include “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants”―may issue an SCA warrant.  Section 2703(a) refers directly to the use of State warrant procedures as an adequate basis for issuance of an SCA warrant.  18 U.S.C. § 2703(a).  We think it particularly unlikely that, if Congress intended SCA warrants to apply extraterritorially, it would provide for such far‐reaching state court authority without at least “address[ing] the subject of conflicts with foreign laws and procedures.”  Aramco, 499 U.S. at 256; see also American Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (describing as beyond dispute the notion that “state power that touches on foreign relations must yield to the National Government’s policy”).

The government asserts that “[n]othing in the SCA’s text, structure, purpose, or legislative history indicates that compelled production of records is limited to those stored domestically.”  Gov’t Br. at 26 (formatting altered and emphasis added).  It emphasizes the requirement placed on a service provider to disclose customers’ data, and the absence of any territorial reference restricting that obligation.  We find this argument unpersuasive:  It stands the presumption against extraterritoriality on its head.  It further reads into the Act an extraterritorial awareness and intention that strike us as anachronistic, and for which we see, and the government points to, no textual or documentary support. [20]

[20] Seeking additional grounds for its position that to apply Morrison in this case is to proceed on a false premise, the government argues that the presumption against extraterritoriality applies only to “substantive provisions” of United States law, and that the SCA’s warrant provisions are procedural.  Gov’t Br. at 31.  The proposition that the SCA’s protections are merely procedural might reasonably be questioned.  But even assuming that they are procedural, the government gains no traction with this argument, which we rejected in Loginovskaya v. Batratchenko, 764 F.3d 266, 272‐73 (2d Cir. 2014).