The Factors Prompting a Judge to Issue Warrants for Microsoft Data Stored in Ireland

2. The SCA’s Use of the Term of Art “Warrant”

Congress’s use of the term of art “warrant” also emphasizes the domestic boundaries of the Act in these circumstances.

In construing statutes, we interpret a legal term of art in accordance with the term’s traditional legal meaning, unless the statute contains a persuasive indication that Congress intended otherwise.  See F.A.A. v. Cooper, 132 S. Ct. 1441, 1449 (2012) (“[W]hen Congress employs a term of art, ‘it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.’”) (quoting Molzof v. United States, 502 U.S. 301, 307 (1992)).  “Warrant” is such a term of art.

The term is endowed with a legal lineage that is centuries old.  The importance of the warrant as an instrument by which the power of government is exercised and constrained is reflected by its prominent appearance in the Fourth Amendment to the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.  It is often observed that “[t]he chief evil that prompted the framing and adoption of the Fourth Amendment was the indiscriminate searches and seizures conducted by the British under the authority of general warrants.”  United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (internal quotation marks omitted).   Warrants issued in accordance with the Fourth Amendment thus identify discrete objects and places, and restrict the government’s ability to act beyond the warrant’s purview ― of particular note here, outside of the place identified, which must be described in the document.  Id. at 445–46.

As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States:  “What we know of the history of the drafting of the Fourth Amendment . . . suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 169 (2d Cir. 2008) (alteration omitted and ellipses in original) (quoting United States v. Verdugo‐Urquidez, 494 U.S. 259, 266 (1990)).  Indeed, “if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation.”  Id. at 171. Accordingly, a warrant protects privacy in a distinctly territorial way.[21]

The SCA’s legislative history related to its post enactment amendments supports our conclusion that Congress intended to invoke the term “warrant” with all of its traditional, domestic connotations.[22] Since the SCA’s initial passage in 1986, Congress has amended § 2703 to relax some of the Rule 41 requirements as they relate to SCA warrants.  Although some address the reach of SCA warrants, none of the amendments contradicts the term’s traditional domestic limits.  See USA PATRIOT ACT, Pub. L. 107‐56, § 220; 115 Stat. 272, 291–92 (2001) (codified at 18 U.S.C. § 2703(a), (b)); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107‐273, § 11010, 116 Stat. 1758, 1822 (2002) (codified at 18 U.S.C. § 2703(g)); Foreign Evidence Request Efficiency Act of 2009, Pub. L. 111‐79, § 2, 123 Stat. 2086, 2086 (2009) (codified at 18 U.S.C. § 2711(3)(A)). These amendments to the SCA are fully consistent with the historical role of warrants as legal instruments that pertain to discrete objects located within the United States, and that are designed to protect U.S. citizens’ privacy interests.

The magistrate judge took a different view of the legislative history of certain amendments to the SCA. He took special notice of certain legislative history related to the 2001 amendment to the warrant provisions enacted in the USA PATRIOT ACT. A House committee report explained that “[c]urrently, Federal Rules [sic] of Criminal Procedure 41 requires that the ‘warrant’ be obtained ‘within the district’ where the property is located.  An investigator, for example, located in Boston . . . might have to seek a suspect’s electronic e‐mail from an Internet service provider (ISP) account located in California.” In re Warrant, 15 F. Supp. 3d at 473 (quoting H.R. Rep. 107‐236(I), at 57 (2001)).  The magistrate judge reasoned that this statement equated the location of property with the location of the service provider, and not with the location of any server. Id. at 474.

But this excerpt says nothing about the need to cross international boundaries; rather, while noting the “cross‐jurisdictional nature of the Internet,” it discusses only amendments to Rule 41 that allow magistrate judges “within the district” to issue warrants to be executed in other “districts”—not overseas.  Id. at 473 (quoting H.R. Rep. 107‐236(I), at 58).  Furthermore, the Committee discussion reflects no expectation that the material to be searched and seized would be located any place other than where the service provider is located.  Thus, the Committee’s hypothetical focuses on a situation in which an investigator in Boston might seek e‐mail from “an Internet service provider (ISP) account located in California.”  To our reading, the Report presumes that the service provider is located where the account is—within the United States.[23]

[21] The government argues that the SCA’s warrant provisions were “modeled after the Right to Financial Privacy Act,” 12 U.S.C. §§ 3402(3), 3406, and that the latter act also “envisions that warrants—along with subpoenas and summonses—will trigger a disclosure requirement.” Gov’t Br. at 19 (citing S. Rep. No. 99‐541, at 3).  It points to no authority definitively construing the latter act’s warrant provisions, however, nor any acknowledgment in the history of the SCA that enforcement of the warrant’s disclosure commands would cross international boundaries. For these reasons, we accord little weight to the observation.

[22] We note that a 2009 amendment to Rule 41 expressly authorizes the use of such warrants to seize electronically‐stored data, without abandoning the requirement that the warrant specify the place from which the data is to be seized.  See Fed. R. Crim. P. 41(e)(2)(B) (allowing magistrate judge to “authorize the seizure of electronic storage media or the seizure or copying of electronically stored information” (emphasis added)).

[23] Our brief discussion here of the law of warrants is offered in aid only of our interpretation of the statutory language.  Consequently, we do not consider whether the Fourth Amendment might be understood to impose disclosure‐related procedural requirements more stringent than those established by the SCA.  See United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (finding Fourth Amendment protects certain electronic communications based on users’ reasonable expectations of privacy); see also Email Privacy Act, H. R. 699, 114th Cong. § 3 (passed by House Apr. 27, 2016) (requiring government to obtain warrant before obtaining documents stored online).