Amicus Curiae Brief — United States, Petitioner v. Microsoft Corporation

NO. 17-2

In the Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

MICROSOFT CORPORATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF THE COUNCIL OF BARS AND LAW

SOCIETIES OF EUROPE AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

NOWELL D. BAMBERGER

Counsel of Record

BRANDON N. ADKINS

MELISSA GOHLKE

CLEARY GOTTLIEB STEEN &

HAMILTON LLP

2000 Pennsylvania Ave NW

Washington, D.C. 20006

(202) 974-1500

nbamberger@cgsh.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

CORPORATE DISCLOSURE STATEMENT

The Council of Bars and Law Societies of Europe is

an international non-profit association. It has no

corporate parent, and no publicly held company has

any ownership interest in it.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Government’s Interpretation Of Section

2703 Would Authorize Extraterritorial

Searches In Conflict With The Domestic

Laws Of Nations Around The World . . . . . . . 6

A. The Government’s Argument Ignores

Increasing Regulation Regarding The

Use, Transfer, And Disclosure Of

Personal And Other Information In Other

Countries . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Government’s Position Affords No

Meaningful Consideration To Foreign

Law Concerning Legal Privilege And

Professional Secrecy . . . . . . . . . . . . . . . . 15

C. The Presumption Against Extraterritoriality

And The “Charming Betsy Doctrine” Favor An

Interpretation of Section 2703 That Does Not

Conflict With Sovereign Rights and Foreign

Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

II.

Construing The Warrant In This Case As

“Domestic” Would Dramatically Expand The

Scope Of Information Held Abroad That

Is Subject To Domestic Process And

Undermine Internationally Agreed Means of

Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Government’s Interpretation Would

Make The United States The Information

Clearinghouse Of The World . . . . . . . . . 21

B. Characterizing Cross-Border Searches

and Seizures As “Domestic” Would

Dramatically Undermine The

International Mutual Legal Assistance

Framework . . . . . . . . . . . . . . . . . . . . . . . 26

III.

A Modern Interpretation Of Search and

Seizure Law Requires That The Focus Be On

The Location Of The Electronic Records

Seized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iv

TABLE OF AUTHORITIES

CASES

In re Air Cargo Shipping Services Antitrust Litig.,

278 F.R.D. 51 (E.D.N.Y. 2010) . . . . . . . . . . . . . 24

Burdeau v. McDowell,

256 U.S. 465 (1921) . . . . . . . . . . . . . . . . . . . . . . 19

Coolidge v. New Hampshire,

403 U.S. 443 (1971) . . . . . . . . . . . . . . . . . . . . . . 19

E.E.O.C. v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) . . . . . . . . . . . . . . . . . . . . . . . 6

F. Hoffman-LaRoche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) . . . . . . . . . . . . . . . . 18, 19, 31

Gucci Am., Inc. v. Weixing Li,

768 F.3d 122 (2d Cir. 2014) . . . . . . . . . . . . . . . . 23

Interamerican Ref. Corp. v. Texaco Maracaibo, Inc.,

307 F. Supp. 1291 (D. Del. 1970) . . . . . . . . . . . . . 7

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . 29, 30

Kiobel v. Royal Dutch Petroleum Co.,

133 S. Ct. 1659 (2013) . . . . . . . . . . . . . . . . . . . . 18

Laker Airways Ltd. v. Sabena, Belgian World

Airlines, 731 F.2d 909 (D.C. Cir. 1984) . . . . . . . . 7

Leibovitch v. Islamic Republic of Iran,

852 F.3d 687 (7th Cir. 2017) . . . . . . . . . . . . . . . 23

Mannington Mills, Inc. v. Congoleum Corp.,

595 F.2d 1287 (3d Cir. 1979) . . . . . . . . . . . . . . . . 7

v

Microsoft Corp. v. United States,

829 F.3d 197 (2d Cir. 2016) . . . . . . . . . . . . . . . . . 5

Morrison v. Nat’l Australia Bank Ltd.,

561 U.S. 247 (2010) . . . . . . . . . . . . . . . . . . . . . . 18

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) . . . . . . . . . . . . . . . . 18

Olmstead v. United States,

277 U.S. 438 (1928) . . . . . . . . . . . . . . . . 28, 29, 30

Riley v. California,

134 S. Ct. 2473 (2014) . . . . . . . . . . . . . . . . . . . . 25

RJR Nabisco, Inc. v. European Community,

136 S. Ct. 2090 (2016) . . . . . . . . . . . . . . . . . . . . 18

Skinner v. Ry. Labor Executives’ Ass’n,

489 U.S. 602 (1989) . . . . . . . . . . . . . . . . . . . . . . 19

Société Nationale Industrielle Aérospatiale v.

U.S. Dist. Court for S. Dist. of Iowa,

482 U.S. 522 (1987) . . . . . . . . . . . . . . . . 12, 13, 23

Strauss v. Credit Lyonnais, S.A.,

249 F.R.D. 429 (E.D.N.Y. 2008) . . . . . . . . . . . . 23

The Antelope,

23 U.S. 66 (1825) . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Apollon,

22 U.S. (9 Wheat.) 362 (1824) . . . . . . . . . . . . . . . 6

The Schooner Exch. v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) . . . . . . . . . . . . . . . 6

United States v. Alvarez-Machain,

504 U.S. 655 (1992) . . . . . . . . . . . . . . . . . . . . . . 28

vi

United States v. Arnold,

533 F.3d 1003 (9th Cir. 2008) . . . . . . . . . . . . . . 25

United States v. Bansal,

663 F.3d 634 (3d Cir. 2011) . . . . . . . . . . . . . . . . 24

United States v. Feffer,

831 F.2d 734 (7th Cir. 1987) . . . . . . . . . . . . . . . 19

United States v. Galpin,

720 F.3d 436 (2d Cir. 2013) . . . . . . . . . . . . . . . . 24

United States v. Ickes,

393 F.3d 501 (4th Cir. 2005) . . . . . . . . . . . . . . . 25

United States v. Ramsey,

431 U.S. 606 (1977) . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Rauscher,

119 U.S. 407 (1886) . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Upham,

168 F.3d 532 (1st Cir. 1999) . . . . . . . . . . . . . . . 24

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . . . . 21

W.S. Kirkpatrick & Co., Inc. v. Environmental

Tectonics Corp., Intern.,

493 U.S. 400 (1990) . . . . . . . . . . . . . . . . . . . . . . . 7

STATUTES AND RULE

12 U.S.C. § 3401 et seq. . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 2703 . . . . . . . . . . . . . . . . . . . . . . . passim

50 U.S.C. § 1801 et seq. . . . . . . . . . . . . . . . . . . . . . . 8

Cal. Penal Code § 1546 . . . . . . . . . . . . . . . . . . . . . . . 8

vii

Fed. R. Cr. P. 41(d)(1) . . . . . . . . . . . . . . . . . . . . . . . 21

OTHER AUTHORITIES

Agreement between the United States of America

and the European Union on the protection of

personal information relating to the prevention,

investigation, detection, and prosecution of

criminal offences, 2016 O.J. (L 336) 3 . . . . . 26, 27

AM&S Europe Ltd. v. Comm’n of the European

Communities, 1982 E.C.R. 1577 (E.C.J. 1982) . 15

Article 29 Working Party’s comments on the issue

of direct access by third countries’ law

enforcement to data stored in other jurisdiction,

December 5, 2013, http://ec.europa.eu/justice/dat

a-protection/article-29/documentation/otherdocument/files/2013/20131205_wp29_letter_to

_cybercrime_committee.pdf . . . . . . . . . . . . . . . . 19

Art. 66-5 de Loi 71-1130 du 31 décembre 1971

portant réforme de certaines professions

judiciaires et juridiques [Art. 66-5 of Law 711130 of December 31, 1971] . . . . . . . . . . . . . . . . 15

Balabel v Air India [1988] Ch. 317 (EWCA) . . . . . 15

Bundesverwaltungsgericht [BVerwG] [Federal

Constitutional Court] Feb. 27, 2008, BverfG

(Ger.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

viii

Sergio Carrera et. al, Centre for European Policy

Studies, Access to Electronic Data by ThirdCountry Law Enforcement Authorities:

Challenges to EU Rule of Law and Fundamental

Rights 69 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 27

Chinese Const. art. 40 . . . . . . . . . . . . . . . . . . . . . . . 12

Code Monétaire et Financier du France art. L51133 (Fr.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Code Pénal [Penal Code] art. 226-13 (Fr.) . . . . . . . 16

Codice di condotta professionale 13 & 28 [Code of

Professional Conduct Art. 13 & 28] (It.) . . . . . . 16

Council of Bars & Law Societies of Europe, CCBE

Recommendations: On the protection of client

confidentiality within the context of surveillance

activities

13–16,

http://www.

ccbe.eu/documents/publications/ . . . . . . . . . . . . 16

Nigel Cory, Info. Tech. & Innovation Found., CrossBorder Data Flows: Where Are the Barriers, and

What Do They Cost? 1 (2017),

http://www2.itif.org/2017-cross-border-dataflows.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CRH Plc. v. Competition & Consumer Prot.

Comm’n, [2017] I.E.S.C. 34 (Ir.) (MacMenamin,

J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Data Protection (Amendment) Act 2003 (Act No.

6/2003) (Ir.) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Data Protection Act 1988 (Act No. 25/1988) . . . . . 10

Data Protection Comm’r v Facebook Ireland

Limited, [2017] IEHC 545 . . . . . . . . . . . . . . . . . . 9

ix

ECHR, Nov. 4, 1950, E.T.S. No. 5 . . . . . . . . . . . 9, 16

European Convention on Human Rights Act

(Act No. 20/2003) (Ir.) . . . . . . . . . . . . . . . . . . . . 17

European Union, Directive 95/46/EC of the

European Parliament and of the Council, 1995

O.J. (L 281) 31 . . . . . . . . . . . . . . . . . . . 3, 8, 10, 11

Federal Law No. 374 On Amending the Federal

Law on Counterterrorism and Select Legislative

Acts Concerning the Creation of Additional

Measures Aimed at Countering Terrorism and

Protecting Public Safety, art. 19 . . . . . . . . . 11, 12

General Data Protection Regulation, Regulation

(EU) 2016/679 of the European Parliament and

of the Council, 2016 O.J. (L 119) 1 . . . . . 3, 13, 20

In re Ward of Court (withholding medical

treatment) (No. 2), [1995] 2 I.R. 79 (Ir.) . . . . . . . 8

Joint Statement of the European Data Protection

Authorities Assembled in the Article 29 Working

Party, November 26, 2014, http://ec.europa.eu/

justice/data-protection/article-29/documentation

/opinion-recommendation/files/2014/wp227_en.

pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Loi

68-678 du 26 Juillet 1968 relative à

communication de documents et renseignements

d’ordre économique, commercial, industriel,

financier ou technique à des personne physiques

ou morales étrangères [Law No. 68-678 of July

26, 1968] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

x

Marco Civil da Internet, Lei No. 12.965 de 23 Abril

de 2014, https://www.publicknowledge.org/

documents/marco-civil-english-version . . . . . . . 13

McMullen v Kennedy [2007] IEHC 263 . . . . . . . . . 15

Michaud v. France, 2012-VI Eur. Ct. H.R. 89 . . . . 16

People’s Republic of China Network Security Law

(Nov. 7, 2016), http://www.npc.gov.cn/npc/xinwe

n/2016-11/07/content_2001605.htm . . . . . . . . . 14

Protection of Trading Interests Act (1980),

c. 2, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Restatement (Third) of Foreign Relations Law

(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24

Schrems v Data Protection Comm’r, Case C-362/14,

EU:C:2015:650 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Schwizerisches Strafgesetzbugh [StGB] [Criminal

Code] Dec. 21, 1937, SR 757 (1938), Dec. 21,

1937, SR 757, art. 273 . . . . . . . . . . . . . . . . . 13, 16

S. Rep. No. 99-541 (1986), reprinted in 1986

U.S.C.C.A.N. 3555 . . . . . . . . . . . . . . . . . . . . . 8, 30

Telecommunications Regulations of the People’s

Republic of China (promulgated by the State

Council), Sept. 25, 2000, art. 66 . . . . . . . . . . . . 12

U.K. Investigatory Powers Act 2016, c. 25 . . . . . . . . 9

U.S. Dep’t of State, Treaties & Agreements,

https://www.state.gov/j/inl/rls/nrcrpt/2012/vol2/

184110.htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

xi

Vinci Construction and GTM Génie Civil et Services

v. France, App. Nos. 63629/10 and 60567/10, 2

April 2015 (Eur. Ct. of H. R.) . . . . . . . . . . . . . . . 17

Working Document 1/2009 on Pretrial Discovery for

Cross Border Civil Litigation, Feb. 11, 2009 (WP

958) 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1

INTERESTS OF AMICUS CURIAE1

Amicus Curiae, the Council of Bars and Law

Societies of Europe (“CCBE”), is an international

non-profit association which has been, since its

creation, at the forefront of advancing the views of

European lawyers and defending legal principles upon

which democracy and the rule of law are based.

Founded in 1960, the CCBE is recognized as the voice

of the European legal profession representing, through

its member bars and law societies in forty-five member

states of the Council of Europe (including twenty-eight

member states of the European Union), more than one

million European lawyers. The regulation of the

profession, the defense of the rule of law, human rights,

and democratic values are the most important missions

of the CCBE. To that end, the CCBE routinely works

with other lawyers’ organizations around the world on

issues of common interest to the legal profession, such

as the independence of the profession and the judiciary,

lawyer-client confidentiality, access to justice, rule of

law, and the ability of all lawyers to practice their

profession freely and without harassment or hindrance.

1

Pursuant to this Court’s Rule 37.3(a), counsel for all parties

consented to the filing of this brief. Pursuant to this Court’s Rule

37.6, amicus states that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus, its members, or its counsel made a monetary

contribution intended to fund the preparation or submission of this

brief.

2

The CCBE’s interest in this case arises from the

threat posed by the Government’s arguments to the

international order under which cross-border law

enforcement is routinely conducted. The members of

the various national Bars and Law Societies, which are

member organizations of the CCBE, practice and

represent clients in jurisdictions outside the United

States that have their own laws, legal traditions, and

law enforcement regimes. Many of those jurisdictions

have entered into agreements with the United States

that provide clear, efficient, and mutually-agreed

mechanisms for obtaining information from their

territories in furtherance of U.S. criminal

investigations. The Government’s approach would

upset that order and settled rules of international

comity and sovereignty, permitting the United States

to execute searches in the territory of other sovereigns,

inviting other countries (who may not share a common

legal tradition) to do the same and subjecting recipients

of such requests to impossibly conflicting legal

obligations.

SUMMARY OF THE ARGUMENT

For the CCBE and its members, the central

question in this case is where, physically, an electronic

search and seizure takes place. The Government’s

argument that it conducts a purely “domestic” search

by executing in the United States a warrant pursuant

to the Stored Communications Act (“SCA”), 18 U.S.C.

§ 2703, to obtain electronic communications located in

Ireland would place the SCA in conflict with the laws

of countries around the world, would undermine

established bilateral and multilateral frameworks for

cross-border cooperation in criminal cases, and would

3

subject foreign parties to competing irreconcilable legal

obligations. The Second Circuit rightly held that the

search in this case, which the parties agree was

intended to yield electronic communications from

Ireland, was extraterritorial and therefore outside of

the scope of what Section 2703 permits. The Court

should affirm.

Around the world, nations are increasingly

regulating the way that information, particularly

personally identifiable information like electronic

communications, is processed, transferred, and

disclosed. In Europe, organizations and companies

that hold such data are subject to a variety of legal

restrictions on how such data may be handled. These

include, within the European Union, Directive

95/46/EC of the European Parliament and of the

Council, 1995 O.J. (L 281) 31 [hereinafter, “EU

Directive 95/46”], shortly to be superseded by the

General Data Protection Regulation, Regulation (EU)

2016/679 of the European Parliament and of the

Council, 2016 O.J. (L 119) 1 [hereinafter, “GDPR”],

which takes effect in May, as well as existing national

laws and regulations. Many European countries – and

other countries around the world – regulate the

circumstances under which private correspondence

may be disclosed to law enforcement, impose

professional secrecy obligations on various professions

(including lawyers), or recognize the existence of

professional privilege, including legal professional

privilege, and restrict the ability of private parties to

transfer various categories of information abroad.

4

Just as the United States enacted the SCA to

protect the privacy interests of Americans, other

countries enact legislation to protect similar interests

of their citizens. Persons, including individuals,

companies, and organizations, that hold electronic

correspondence and various other types of information

are subject to the laws of the countries in which they

hold that information. In many circumstances, they

may be restricted from disclosing information or

transferring it to the United States (or other foreign

countries) by domestic law. For over 200 years, this

Court has recognized the sovereign right of other

nations to regulate commerce and the rights of their

citizens within their respective territories.

Section 2703 permits the Government to obtain a

warrant authorizing the search and seizure of

electronic communications. It expressly refers to and

incorporates the traditional mechanisms for issuance

of warrants – not subpoenas – under U.S. law and the

Federal Rules of Criminal Procedure. Those rules have

historically been applied to preclude magistrates from

issuing warrants with extraterritorial effect. Nothing

in the SCA suggests that Congress intended a different

outcome when it comes to the search and seizure of

electronic communications.

Were this Court to adopt the Government’s

argument that a search pursuant to a Section 2703

warrant is “domestic” regardless of where the

communications seized are physically located, it would

invite incessant conflicts between U.S. jurisdiction and

foreign law.

Companies and organizations and

individuals faced with Section 2703 warrants served in

this country would be constantly required to choose

5

between contumacy and violating foreign law. Foreign

governments’ sovereign authority to protect the privacy

interests of their citizens and others to whom they

accord protection would be undermined and foreign

individuals, companies, and organizations, and their

respective lawyers, would be imperiled in their

observance of their home countries’ laws and standards

regarding professional secrecy and privilege. This

cannot have been what Congress intended to

accomplish; if it were, Congress certainly did not say so

clearly in the SCA.

ARGUMENT

According to the Government’s argument,

“[b]ecause Section 2703 focuses on the domestic

disclosure of information to the government, this case

involves a permissible domestic application of the

statute.” Pet’r’s Br. 26. In the decision below, the

Second Circuit correctly held that Section 2703 instead

focuses on the protection of covered electronic data, and

therefore that the relevant search and seizure occurs

where the data is located and stored. Microsoft Corp. v.

United States, 829 F.3d 197, 220 (2d Cir. 2016). The

Second Circuit’s interpretation best accords with the

language and history of the SCA and most effectively

interprets the statute in a way that accomplishes

Congressional intent while avoiding conflicts with the

laws of other nations and the obligations they impose

on the processing, transfer, and disclosure of electronic

communications within their respective territories.

6

I.

The Government’s Interpretation Of

Section 2703 Would Authorize

Extraterritorial Searches In Conflict With

The Domestic Laws Of Nations Around The

World.

While the advancement of technology has rendered

the world increasingly interdependent, it nonetheless

remains – as Justice Marshall wrote more than two

centuries ago – “composed of distinct sovereignties,

possessing equal rights and equal independence, whose

mutual benefit is promoted by intercourse with each

other, and by an interchange of those good offices

which humanity dictates and its wants require.” The

Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116,

136 (1812). In the context of that international order,

“[i]t is universally recognized, as a corollary of state

sovereignty, that officials of one state may not exercise

their functions in the territory of another state without

the latter’s consent.” Restatement (Third) of Foreign

Relations Law § 432 cmt. b (1987); see also The

Apollon, 22 U.S. (9 Wheat.) 362, 371 (1824) (“It would

be monstrous to suppose that our revenue officers were

authorized to enter into foreign ports and territories,

for the purpose of seizing vessels which had offended

against our laws.”). This principle rests both on

considerations of sovereignty and reciprocity. “It

serves to protect against unintended clashes between

our laws and those of other nations which could result

in international discord.” E.E.O.C. v. Arabian Am. Oil

Co., 499 U.S. 244, 248 (1991); see also The Apollon, 22

U.S. at 371–72 (“[A]n universal right of search . . . has

never yet been acknowledged by other nations, and

would be resisted by none with more pertinacity than

by the American.”).

7

A. The Government’s Argument Ignores

Increasing Regulation Regarding The

Use, Transfer, And Disclosure Of

Personal And Other Information In

Other Countries.

Within its respective sphere, each sovereign has the

authority to prescribe laws governing the protection of

the privacy of its citizens, including the circumstances

under which those citizens’ private papers and effects

may be seized and transferred to law enforcement.

See, e.g., Laker Airways Ltd. v. Sabena, Belgian World

Airlines, 731 F.2d 909, 921 (D.C. Cir. 1984) (“The

prerogative of a nation to control and regulate

activities within its boundaries is an essential,

definitional element of sovereignty. Every country has

a right to dictate laws governing the conduct of its

inhabitants.”); see also The Antelope, 23 U.S. 66, 122

(1825) (“No principle of general law is more universally

acknowledged, than the perfect equality of

nations. . . . It results from this equality, that no one

can rightfully impose a rule on another.”);

Interamerican Ref. Corp. v. Texaco Maracaibo, Inc.,

307 F. Supp. 1291, 1298 (D. Del. 1970) (“It requires no

precedent, however, to acknowledge that sovereignty

includes the right to regulate commerce within the

nation.”).2

2

In analogous contexts, federal courts have long recognized and

given effect to foreign sovereigns’ authority to regulate activities

within their respective territories. See, e.g., W.S. Kirkpatrick &

Co., Inc. v. Environmental Tectonics Corp., Intern., 493 U.S. 400,

405 (1990) (Act of State Doctrine); Mannington Mills, Inc. v.

Congoleum Corp., 595 F.2d 1287, 1293 (3d Cir. 1979) (foreign

sovereign compulsion doctrine).

8

Different governments regulate the disclosure of

information and personal privacy differently. In the

United States, for example, Congress and state

legislatures have enacted various provisions protecting

certain information and prescribing the circumstances

under which disclosure may be compelled. See, e.g.,

50 U.S.C. § 1801 et seq. (Foreign Intelligence

Surveillance Act, describing conditions for approval of

electronic surveillance in the United States); 12 U.S.C.

§ 3401 et seq. (Right to Financial Privacy Act, defining

the circumstances under which individuals’ financial

records may be searched); Cal. Penal Code § 1546

(California Electronic Communications Privacy Act).

Indeed, the SCA itself is an example of how Congress

chose to strike the balance between privacy and law

enforcement interests within the United States. See

S. Rep. No. 99-541, at 3 (1986), reprinted in 1986

U.S.C.C.A.N. 3555, 3557.

In Ireland, no fewer than three separate sources of

law regulate the protection of privacy interests of

persons and the circumstances under which those

interests may be infringed. These include (i) Irish

national law, see, e.g., In re Ward of Court

(withholding medical treatment) (No. 2), [1995] 2 I.R.

79, 125 (Ir.) (“[T]he right to privacy is one of the

fundamental personal rights of the citizen which flow

from the Christian and democratic nature of the State.”

(internal quotation marks omitted)); CRH Plc. v.

Competition & Consumer Prot. Comm’n, [2017] I.E.S.C.

34, at ¶ 54 (Ir.) (MacMenamin, J.) (“The right to

privacy is an increasingly important constitutional

value in an age where privacy is challenged.”),

(ii) European Union law, see, e.g., EU Directive 95/46,

as implemented in Ireland by the Irish Data Protection

9

Act 1988, as amended, and (iii) the European

Convention on Human Rights (“ECHR”), see, e.g.,

ECHR art. 8, Nov. 4, 1950, E.T.S. No. 5 (“Everyone has

the right to respect for his private and family life, his

home and his correspondence. . . . There shall be no

interference by a public authority with the exercise of

this right except such as is in accordance with the law

and is necessary in a democratic society . . . .”).3 Both

the Irish courts and the European Court of Justice

have recognized the transfer of personal information by

a private company to the United States outside an

appropriate framework ensuring adequate protection

thereof, is a violation of these requirements. See

Schrems v Data Protection Comm’r, Case C-362/14,

EU:C:2015:650; Data Protection Comm’r v Facebook

Ireland Limited, [2017] IEHC 545.

Other countries have adopted laws providing

additional or different protections against the

disclosure of different types of information, and in some

cases even domestic courts of those countries would

lack the authority to compel disclosure. See, e.g., Code

Monétaire et Financier du France art. L511-33 (Fr.)

(authorizing disclosure of professional secrets by a

financial institution in criminal, but not civil, cases);

U.K. Investigatory Powers Act 2016, c. 25 (prescribing

mechanisms for obtaining warrants for electronic

3

The ECHR accords Human Rights to both natural and legal

persons. Signatories to the ECHR have undertaken not only a

negative obligation against conducting unlawful searches, but an

affirmative obligation to “secure to everyone within their

jurisdiction the rights and freedoms defined” in the Convention,

ECHR art. 1, an obligation that is enforceable in direct claims by

their citizens and others within the jurisdiction, see id. art. 34.

10

surveillance in the U.K.); Bundesverwaltungsgericht

[BVerwG] [Federal Constitutional Court] Feb. 27, 2008,

BVerfG ¶ 247 (Ger.) (Statutory authorizations of secret

access to information technology systems must be

“contingent on the existence of factual indications of a

concrete danger to a predominantly important legal

interest . . . [such as] . . . life, limb and freedom of the

individual.”).

European laws concerning the protection of personal

data are of particular relevance. The approach

European nations (and many other nations around the

world) have taken to the protection of personally

identifiable information is different from the approach

taken by the United States. Under EU Directive 95/46,

which is currently in force and was at the relevant

time, and relevant Irish national law enacted pursuant

thereto, an entity that processes data – for example, by

storing data or retrieving it – using equipment within

the territory of a European Union Member State must

do so in accordance with European data protection and

privacy laws. See Data Protection (Amendment) Act

2003 § 2(b) (Act No. 6/2003) (Ir.) (amending Data

Protection Act 1988 § 1 (Act No. 25/1988)),

http://www.irishstatutebook.ie/eli/2003/act (data

protection law applies to a data controller that “makes

use of equipment in the State for processing the data”).

Among the requirements of that legislation is a

prohibition on cross-border transfers to countries that

do not afford similar legal protection to personal data

(including the United States), and that prohibition is

subject to very limited exceptions. See id. § 12

(amending Data Protection Act 1988 § 11). While those

exceptions may apply in certain cases, they will not

apply in all (or even most) cases. And while the

11

purpose of the transfer is very much relevant under

this approach, the recipient of a Section 2703 warrant

will seldom know the purpose for which the

Government seeks information or be in a position to

evaluate whether that purpose comports with relevant

law. Indeed, historically, compliance with a foreign

judicial request has not been viewed as such a proper

purpose by itself.4

Around the world, different countries’ approaches to

balancing their citizens privacy interests and law

enforcement’s access to records differ even more

dramatically. Some countries afford citizens relatively

little, if any, protection against government intrusion

into their private correspondence. For example,

recently-enacted legislation in Russia, which takes

effect in July 2018, includes a provision requiring the

content of transmitted messages and other

communications and records of telephone

communications to be preserved for six months and

forwarded to the security services upon request. See

Federal Law No. 374 On Amending the Federal Law on

Counterterrorism and Select Legislative Acts

Concerning the Creation of Additional Measures Aimed

at Countering Terrorism and Protecting Public Safety,

4

This position has been confirmed by the Article 29 Working

Party, a body comprised of representatives from national data

protection authorities and the European Commission, which

emphasized in 2009 guidance on EU Directive 95/46 that “[a]n

obligation imposed by a foreign legal statute or regulation may not

qualify as a legal obligation by virtue of which data processing in

the EU would be made legitimate.” Working Document 1/2009 on

Pretrial Discovery for Cross Border Civil Litigation, Feb. 11, 2009

(WP 958) 9.

12

art. 19.5 Likewise, while the constitution of the

People’s Republic of China protects the “[f]reedom and

privacy of correspondence,” that protection is qualified

by the rights of the State in cases involving security or

criminal investigation.

Chinese Const. art. 40,

http://www.npc.gov.cn/englishnpc/Constitution/node_

2825.htm; see also Telecommunications Regulations of

the People’s Republic of China (promulgated by the

State Council), Sept. 25, 2000, art. 66, (providing for

the privacy of telecommunications, subject to

exemptions for examination by State security organs

and prosecutorates).

Other countries have expressly legislated that the

collection of certain types of information from within

their territories – whether by public officials or private

parties acting at their direction – is prohibited, often at

the risk of criminal sanctions. In a number of cases,

such legislation was overtly or implicitly adopted out of

concern regarding the extraterritorial reach of U.S.

legal process. French law, for example, prohibits the

transfer of certain categories of information abroad for

use as evidence in legal proceedings. Loi 68-678 du 26

Juillet 1968 relative à communication de documents et

renseignements d’ordre économique, commercial,

industriel, financier ou technique à des personne

physiques ou morales étrangères [Law No. 68-678 of

July 26, 1968 relative to communication documents

and information of an Economic, commercial or

technical nature to foreign natural or legal persons];

see Société Nationale Industrielle Aérospatiale v. U.S.

5

The Library of Congress Global Legal Monitor published a

summary of the new law at http://www.loc.gov/law/foreignnews/article/russia-new-electronic-surveillance-rules/.

13

Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 526 &

n.29 (1987). Legislation in the United Kingdom

likewise prohibits the cross-border transfer of certain

types of information in certain circumstances, subject

to criminal penalties. See Protection of Trading

Interests Act (1980), c. 2, § 2. Under Swiss law, any

person who obtains a manufacturing or trade secret in

Switzerland with a view to its transmission to a foreign

agent is guilty of industrial espionage. Schwizerisches

Strafgesetzbugh [StGB] [Criminal Code] Dec. 21, 1937,

SR 757 (1938), Dec. 21, 1937, SR 757, art. 273. The

European Union’s GDPR, which takes effect in May

2018, both prohibits the transfer of personal

information to countries (including the United States)

that have not been found to afford a similar type of

protection to personal information and also expressly

provides that a judgment of a foreign court requiring

transfer of data “may only be recognized or enforceable

in any manner if based on an international agreement,”

thus making mutual legal assistance treaties the

preferred option for transfers. GDPR art. 48 (emphasis

added). Though article 49 of the GDPR might appear

to admit in limited circumstances of the possibility of

a data transfer otherwise than by international

agreement, Br. of European Commission 14–16, the

derogations are narrow and to be construed strictly.

Similarly, Brazilian law requires a Brazilian court

order before an internet provider may produce data

stored in Brazil or communications to or from a party

in Brazil. See Marco Civil da Internet, Lei No. 12.965

de 23 Abril de 2014, https://www.publicknowledge.org/

documents/marco-civil-english-version. China’s

recently-enacted cybersecurity law also requires that

certain types of data be held within China, presumably

achieving the dual objectives of preventing access by

14

foreign governments and ensuring a right of access by

the Chinese government. See People’s Republic of

China Network Security Law (Nov. 7, 2016),

http://www.npc.gov.cn/npc/xinwen/2016-11/07/content

_2001605.htm.

What these different approaches collectively

demonstrate is that when the power to issue warrants

under Section 2703 is interpreted to permit orders

compelling service providers to seize data stored abroad

and turn it over to U.S. law enforcement, that power

will inevitably come in direct conflict with the

legislation of foreign governments, and that conflict

will relate to how data is stored, processed and

transferred in foreign countries. Whether such a

conflict exists in any particular case is less relevant

than the observation that Congress cannot be assumed

to have intended to embark on a policy of such

expansive extraterritorial seizures without saying so

expressly. But the Government’s position not only

assumes this, it goes a step forward and assumes that

in issuing Section 2703 warrants, courts are not

obligated to consider the interests of foreign

governments, their citizens, others who are protected

by the privacy laws of foreign sovereigns, or the

legitimate regulation by foreign governments of the

conduct of data-processing operations within their

jurisdictions.

15

B. The Government’s Position Affords No

Meaningful Consideration To Foreign

Law Concerning Legal Privilege And

Professional Secrecy.

As an association of bars and law societies, CCBE

also has a particular concern regarding the

implications of the Government’s position on the rights

of lawyers and their clients to engage in confidential

communications. The Government’s argument raises

particular concerns regarding the ability of lawyers and

their clients to preserve privileges and rights to

confidentiality when material is seized from their home

country and transferred to the United States. Across

Europe, different countries take different approaches

to the law of privilege. See, e.g., AM&S Europe Ltd. v.

Comm’n of the European Communities, 1982 E.C.R.

1577, 1610 (E.C.J. 1982) (“[I]t is apparent from the

legal systems of the Member States that, although the

principle of such protection is generally recognized, its

scope and the criteria for applying it vary . . . .”). In the

United Kingdom and Ireland, principles of legal

professional privilege – comprised of the privilege

attaching to legal advice and to a lawyer’s preparations

for litigation – are broadly analogous to legal privileges

recognized in the United States. See, e.g., Balabel v

Air India [1988] Ch. 317 (EWCA); McMullen v Kennedy

[2007] IEHC 263. In many civil law countries, the

obligation of professional secrecy is imposed on the

lawyer by the state, may be subject to criminal

sanctions, and in many cases may not be waived even

by the client. See, e.g., Art. 66-5 de Loi 71-1130 du 31

décembre 1971 portant réforme de certaines

professions judiciaires et juridiques [Art. 66-5 of Law

71-1130 of December 31, 1971 regarding the reform of

16

certain judicial and legal professions] (“[G]enerally all

documents held in a file are covered by professional

secrecy.”); Code Pénal [Penal Code] art. 226-13 (Fr.)

(imposing criminal sanctions for violation of

professional secrecy); Codice di condotta professionale

13 & 28 [Code of Professional Conduct Art. 13 & 28]

(It.) (requiring lawyers to maintain professional

secrecy); Strafgesetzbugh [StGB] [Criminal Code],

§ 203(1) para. 3 (Ger.) (failure to observe professional

secrecy constitutes a criminal misdemeanor).

Across Europe, the ECHR requires signatories

(which include EU members, but also all forty-seven

countries of the Council of Europe) to ensure the

sanctity of the legal professional privilege or

professional secrecy within their territories.

Specifically, these obligations have been found to

adhere in Article 6 (which protects the right “to a fair

and public hearing”) and Article 8 (concerning the right

to privacy). The protection afforded by Article 6 is

absolute (which is to say it cannot be derogated from

for any reason whatever). In relation to Article 8, the

European Court of Human Rights has asserted that

“while Article 8 protects the confidentiality of all

‘correspondence’ between individuals, it affords

strengthened protection to exchanges between lawyers

and their clients.” Michaud v. France, 2012-VI Eur. Ct.

H.R. 89, 132 ¶118; see also Council of Bars & Law

Societies of Europe, CCBE Recommendations: On the

protection of client confidentiality within the context of

surveillance activities 13–16, http://www.

ccbe.eu/documents/publications/ (summarizing

judgments of the European Court of Human Rights

recognizing a right to confidentiality of lawyer-client

communications in the context of law enforcement

17

surveillance). By enacting legislation enforcing the

ECHR, countries that are parties to it – like Ireland –

have incorporated these protections into their national

laws. See, e.g., European Convention on Human

Rights Act (Act No. 20/2003) (Ir.).

The Government’s position fails to acknowledge the

particular concerns that foreign lawyers have

regarding the seizure by the United States of

potentially privileged material held on email and data

servers throughout Europe. European courts are

obligated, in the discharge of their own legal process, to

afford due respect to considerations of privilege. See,

e.g., Vinci Construction and GTM Génie Civil et

Services v. France, App. Nos. 63629/10 and 60567/10,

2 April 2015 (Eur. Ct. of H. R.) (holding that a broad

undifferentiated seizure of email correspondence,

including correspondence between a lawyer and client,

pursuant to a French court order violated the

fundamental rights guaranteed under article 8). But a

client (or, in relevant cases, a lawyer) whose privileged

correspondence stored on a European server is seized

by the Government pursuant to a Section 2703 warrant

would have no redress – she would likely not have an

opportunity to intervene because the Government

would not be required to provide notice of the seizure,

see 18 U.S.C. § 2703(b)(A), and the procedure would

not be supervised by a judicial authority that is

obligated to respect the privileges or professional

secrecy obligations that may attach to the materials

seized.

18

C. T h e

Presumption

Against

Extraterritoriality And The “Charming

Betsy Doctrine” Favor An Interpretation of

Section 2703 That Does Not Conflict With

Sovereign Rights and Foreign Law.

The variety of approaches taken by different

governments to regulating similar concerns leads to

two related foundational principles of law, which

together suggest that Section 2703 should be read not

to reach data stored outside the United States. The

first is that “[a]bsent clearly expressed congressional

intent to the contrary, federal laws will be construed to

have only domestic application.” RJR Nabisco, Inc. v.

European Community, 136 S. Ct. 2090, 2100 (2016);

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659,

1664 (2013); Morrison v. Nat’l Australia Bank Ltd., 561

U.S. 247, 255 (2010). The second is that “[a]n act of

congress ought never to be construed to violate the law

of nations if any other possible construction remains.”

F. Hoffman-LaRoche Ltd. v. Empagran S.A., 542 U.S.

155, 164 (2004) (quoting Murray v. Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)) (internal

quotation marks omitted).

The Government’s position that the focus of

Section 2703 is on the disclosure of information, which

here would occur within the United States, Pet’r’s Br.

13–14, 25–26, ignores that the only communications

the Government now seeks are records that are stored

in Ireland and that are not in this country. Where the

information sought is abroad, and would remain abroad

but for the Government’s compulsory intervention, the

search and seizure is quintessentially extraterritorial.

19

The Government places far too much emphasis on

the fact that it would be Microsoft employees and not

government agents physically retrieving the relevant

communications from Ireland and transferring them to

the United States. From the standpoint of the person

whose communications are seized, and from the

standpoint of the foreign government whose laws are

infringed, this is a distinction without a difference. See

Article 29 Working Party’s comments on the issue of

direct access by third countries’ law enforcement to

data stored in other jurisdiction, December 5, 2013,

http://ec.europa.eu/justice/data-protection/article29/documentation/other-document/files/2013/20131205

_wp29_letter_to_cybercrime_committee.pdf (“[L]aw

enforcement access to a specific computer system to

access data stored in another computer system even if

the latter is not within the jurisdiction of the requested

Party…would breach the principle of territoriality and

sovereign jurisdiction of the requested Party[.]”); Joint

Statement of the European Data Protection Authorities

Assembled in the Article 29 Working Party, November

26, 201 4 , h t t p : / / e c . e u r o p a . e u / j ustice/dataprotection /a rtic l e- 29/d oc umentati on/op i ni onrecommendation/files/2014/wp227_en.pdf (“As a rule,

a public authority in a non-EU country should not have

unrestricted direct access to the data of individuals

processed under EU jurisdiction.”); EU Directive 95/46,

pmbl. ¶ 10 (“[T]he objective of the national laws on the

processing of personal data is to protect fundamental

rights and freedoms.”); see also United States v.

Feffer, 831 F.2d 734, 737 (7th Cir. 1987) (“The

government may not do, through a private individual,

that which it is otherwise forbidden to do.”). The

Government proposes no substantive distinction

attached to whether the machinery by which records

20

are transferred from abroad is operated by its agents or

by private parties acting at its direction and pursuant

to its compulsion. This is not a case in which Microsoft

might have extracted data from its server in Ireland for

its own purposes, and the Government merely took

advantage of that. Cf. Burdeau v. McDowell, 256 U.S.

465, 475 (1921). Rather, the only reason for the

transfer in this case was Government compulsion, and

the search in Ireland was therefore conducted by the

Government.

See, e.g., Skinner v. Ry. Labor

Executives’ Ass’n, 489 U.S. 602, 614 (1989); Coolidge v.

New Hampshire, 403 U.S. 443, 487 (1971).

Any ambiguity about the “focus” of the relevant

legislation in this case should be resolved by reference

to the canon of interpretation, commonly known as the

“Charming Betsy Doctrine,” that “this Court ordinarily

construes ambiguous statutes to avoid unreasonable

interference with the sovereign authority of other

nations.” F. Hoffman-La Roche, 542 U.S. at 164. This

venerable canon is also highly practical as an expedient

to avoid this nation’s courts from entering into conflicts

with other nations in the absence of direction from the

political branches.

Whether or not the requirements of a Section 2703

warrant would conflict with foreign or international

law will necessarily depend on the facts and

circumstances of a particular case – by way of example,

whether there may exist the strict conditions

permitting a derogation under article 49 of the GDPR.

However, the SCA that Congress enacted leaves no

room for such considerations. Section 2703’s warrant

provision refers to the Federal Rules of Criminal

Procedure, which require the issuance of a warrant

21

when probable cause is shown. Fed. R. Cr. P. 41(d)(1)

(“[A] magistrate judge . . . must issue the warrant if

there is probable cause . . . .”).6 By construing that

provision to extend the warrant power to records and

communications held abroad, the Government

advocates a construct in which no consideration

whatsoever need be given to the interests of foreign

governments, their laws, or their citizens prior to the

issuance of a Section 2703 warrant, provided that the

warrant in question can be served on a domestic office

or officer.

II.

Construing The Warrant In This Case As

“Domestic” Would Dramatically Expand

The Scope Of Information Held Abroad

That Is Subject To Domestic Process And

Undermine Internationally Agreed Means

of Cooperation.

A. The Government’s Interpretation Would

Make The United States The

Information Clearinghouse Of The

World.

Adopting the Government’s position that the search

and seizure in this case were purely “domestic” would

have far-reaching effects beyond the specific facts of

6

This Court has long recognized that American magistrates have

no power to authorize searches abroad. See, e.g., United States v.

Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (a “warrant . . . from

a magistrate in this country” “would be a dead letter outside the

United States”); id. at 279 (Stevens, J., concurring) (“I do not

believe the Warrant Clause has any application to searches of

noncitizens’ homes in foreign jurisdictions because American

magistrates have no power to authorize such searches.”).

22

this case. Under the Government’s proposed rule, so

long as the last step in the chain of the search or

seizure occurred within the United States, it would be

considered “domestic,” notwithstanding that the object

of the search and the materials to be seized were

located abroad.

At its most focused point, the Government’s position

would permit, without regard to the interests or laws

of foreign countries, the use of Section 2703 warrants

to obtain information anywhere in the world that can

be accessed from within the United States. Such a rule

would essentially deputize American

telecommunications firms and other service providers

to conduct global searches for data on behalf of the U.S.

Government. To comply with U.S. warrants, this

approach would require – if not in every case, then in

many – that U.S. companies violate the laws of the

foreign countries in which they operate, and would

encourage those abroad to avoid using U.S. companies

to conduct business. What is more, the Government’s

proposed rule would introduce a strong disincentive for

investment in the United States by foreign firms not

wishing to violate the information security

requirements in their home countries.

The Government’s interpretation of Section 2703

would also cast doubt on the territorial limitations and

comity analyses attaching to other types of compulsory

process. If service of a warrant in the United States for

records held abroad is a “domestic” search, then it may

be argued that other types of searches of materials

outside the United States that can be initiated from

within the United States are similarly “domestic.” For

example, service of a subpoena on the U.S. branch

23

office of a foreign bank does not confer jurisdiction to

compel that bank to conduct a world-wide search of

accounts held at foreign branches. See Leibovitch v.

Islamic Republic of Iran, 852 F.3d 687, 689–90 (7th Cir.

2017); Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135

(2d Cir. 2014). The rule arises from the settled law

that a foreign bank is not subject to general jurisdiction

in the United States and therefore cannot be compelled

to answer a subpoena unrelated to its forum-related

activities. But under the rule the Government

advocates, such questions of jurisdiction would seem

irrelevant; so long as the domestic branch has the

technical ability to obtain and transfer records from

abroad, any search would be purely “domestic” and

within the jurisdiction of the issuing court.

The Government’s proposed rule could also

undermine the Court’s jurisprudence with respect to

the comity analysis that is to be undertaken in pre-trial

discovery proceedings, in consideration of the “special

problem confronted by the foreign litigant on account

of its nationality or the location of its operations, and

for any sovereign interest expressed by a foreign state.”

Aérospatiale, 482 U.S. at 546. Aérospatiale recognized

that parties subject to personal jurisdiction in the

United States may nonetheless confront particular

challenges when required pursuant to the Federal

Rules of Civil Procedure to transfer data and

information from abroad for production in a U.S. court.

It recognized the need for “particularly close[]” judicial

supervision in cases where “it is necessary to seek

evidence abroad.” Id. Courts applying Aérospatiale

have considered and weighed a variety of factors,

including whether “compliance with the request would

undermine important interests of the state where the

24

information is located.” See, e.g., In re Air Cargo

Shipping Services Antitrust Litig., 278 F.R.D. 51, 52

(E.D.N.Y. 2010) (quoting Restatement (Third) of

Foreign Relations Law § 442(1)(c) (1987)); Strauss v.

Credit Lyonnais, S.A., 249 F.R.D. 429, 439 (E.D.N.Y.

2008). Were this Court to adopt the Government’s

position, however, any party who seeks evidence

located abroad would be free to argue that, so long as

the discovery is ordered by a court in the United States

and production is to be made here, it is irrelevant

where the material to be produced was stored or

originated.

The scope of the Government’s proposed rule is also

not easily confined to Section 2703 warrants. A rule

that disregards the physical location of data – such as

the Government now advocates – could readily be

applied to any run-of-the-mill warrant issued pursuant

to Federal Rule of Criminal Procedure against a

company or individual that is not a “provider of

electronic communication service” and that therefore

falls outside the scope of Section 2703. Federal Courts

routinely uphold broad warrants for the search and

seizure of electronic communications. See, e.g., United

States v. Galpin, 720 F.3d 436, 451 (2d Cir. 2013);

United States v. Bansal, 663 F.3d 634, 662 (3d Cir.

2011); United States v. Upham, 168 F.3d 532, 535 (1st

Cir. 1999). Accepting the Government’s argument

regarding Section 2703 warrants is also to accept that

the Government could obtain ordinary warrants to

search computers in a home or business in the United

States and, through that access, could conduct a global

search of records located anywhere in the world – to

include data that were never transferred to the United

States and that were never contemplated to be

25

transferred to the United States, without regard to any

foreign legal restrictions that might govern such data.

This would be an exceptionally broad interpretation of

a “domestic” search warrant. The Government’s

interpretation of Section 2703 does not admit of

limiting principles.

Finally, the Government’s proposed interpretation

of Section 2703 would invite extension to other types of

searches that, although initiated within the United

States, are in purpose and effect searches of

information and correspondence held abroad. For

example, this Court has long recognized the relative

freedom of border officers to conduct searches of

travelers presenting themselves at the border without

any requirement for reasonable suspicion. See, e.g.,

United States v. Ramsey, 431 U.S. 606, 615 (1977).

Recently, Circuit Courts have upheld searches in

circumstances where customs agents required travelers

to boot up their electronic devices in order to allow

agents to review their contents. See, e.g., United

States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008);

United States v. Ickes, 393 F.3d 501, 506–07 (4th Cir.

2005). In an age where virtually every device enjoys

wireless internet connectivity, the Government’s

proposed rule would invite customs officers to review

not only the contents of the device but any information

(including information held abroad) that might be

accessed on it. Cf. Riley v. California, 134 S. Ct. 2473,

2491 (2014). After all, such a search – like the search

of Microsoft’s records – is conducted by law

enforcement solely “domestically” at a port of entry.

26

B. Characterizing Cross-Border Searches

and Seizures As “Domestic” Would

Dramatically Undermine The

International Mutual Legal Assistance

Framework.

The Government’s position in this case also affords

little respect to the extensive network of international

agreements that the United States has negotiated with

nations around the world governing the disclosure of

evidence from their territories to U.S. law enforcement.

The Republic of Ireland is on record that, were the

Government to make an appropriate request pursuant

to the Treaty Between the Government of Ireland and

the Government of the United States of America on

Mutual Legal Assistance done on January 18, 2001 (the

“Irish MLAT”), its government would act expeditiously

on that request. Br. of Ireland 3. According to the

State Department, mutual legal assistance treaties

(MLATs), which establish, inter alia, a process for

collecting evidence across borders, are currently in

force between the United States and 57 different

countries, including virtually all European countries.

U.S. Dep’t of State, Treaties & Agreements,

https://www.state.gov/j/inl/rls/nrcrpt/2012/vol2/184110.

htm.

In addition, in June 2016, the United States and the

European Union signed a framework agreement for

mutual legal assistance that defines procedures and

safeguards with respect to the cross-border transfer of

data and information from E.U. Members States to the

United States. See Agreement between the United

States of America and the European Union on the

protection of personal information relating to the

27

prevention, investigation, detection, and prosecution of

criminal offences, 2016 O.J. (L 336) 3. Such bilateral

and multilateral agreements reflect political

agreements by the Executive and Legislative branches

with foreign powers regarding the manner in which

information is to be collected from their territories for

law enforcement purposes. While proceeding through

the MLAT process may be less convenient for U.S. law

enforcement than simply compelling the disclosure of

foreign records through domestic process, the process

serves an important function in affording procedural

protections both to foreign nationals and governments

and to the United States and its citizens when the shoe

is on the other foot. Available evidence strongly

supports the view that MLATs work. See Sergio

Carrera et. al, Centre for European Policy Studies,

Access to Electronic Data by Third-Country Law

Enforcement Authorities: Challenges to EU Rule of

Law and Fundamental Rights 69 (2015) (“[T]here is no

evidence substantiating the argument that [MLATs]

[are] ineffective, which would properly justify

bypassing its application.”). They also ensure that

information sought is produced in accordance with the

substantive and procedural laws of both the requesting

and the requested States.

Despite having negotiated them with dozens of

nations, the Government argues here that MLATs are

not an “effective alternative to requiring disclosure of

emails under the SCA.”

Pet’r’s Br. 44.

The

Government’s objection to the MLAT procedure,

however, is largely that it takes time and the outcome

is uncertain. Id. at 44–45. Granted that requesting

the assistance of another sovereign government to

collect evidence within its territory provides less

28

“certainty” than simply seizing the requested

correspondence oneself, any delay and uncertainty

reflects the nature of the agreements that both the

United States and foreign governments have

subscribed to as a precondition to agreeing to provide

mutual legal assistance. The very agreement of those

mechanisms of cooperation between friendly nations

strongly suggests that they did not intend to reserve

unto themselves a right for their domestic courts to

sanction searches in each other’s territory without

complying with the agreed treaty terms. See United

States v. Rauscher, 119 U.S. 407, 422 (1886) (“No such

view of solemn public treaties between the great

nations of the earth can be sustained by a tribunal

called upon to give judicial construction to them.”); see

also United States v. Alvarez-Machain, 504 U.S. 655,

678–79 (1992) (Stevens, J., dissenting) (“It is shocking

that a party to an extradition treaty might believe that

it has secretly reserved the right to make seizures of

citizens in the other party’s territory.”).

III.

A Modern Interpretation Of Search and

Seizure Law Requires That The Focus Be

On The Location Of The Electronic Records

Seized.

A century ago, this Court construed a “search or

seizure” within the meaning of the Fourth Amendment

to relate solely to a physical trespass. See Olmstead v.

United States, 277 U.S. 438, 464–65 (1928) (“The

amendment itself shows that the search is to be of

material things . . . .”). At the time, the Court

struggled to comprehend how the concept of a “search”

could possibly be “extended and expanded to include

telephone wires, reaching to the whole world from the

29

defendant’s house or office,” and on that basis held that

“wire tapping . . . did not amount to a search or seizure

within the meaning of the Fourth Amendment.” Id. at

466. With the passage of time and the ubiquity of

telecommunications, it became clear that citizens did

indeed have a reasonable expectation in the privacy of

their telephone conversations, and that the Fourth

Amendment’s protections did not recede with the

advent of technology making possible a search without

the need for a physical invasion. Thus, fifty years ago

in Katz v. United States, 389 U.S. 347, 352 (1967), the

Court rejected Olmstead, holding instead that “the

Fourth Amendment protects people – and not simply

‘areas’ – against unreasonable searches and seizures.”

Id. at 353. Concurring in the judgment, Justice Harlan

stressed that “reasonable expectations of privacy may

be defeated by electronic as well as physical invasion.”

Id. at 362 (Harlan, J., concurring).

The passage of another fifty years and the

corresponding advancements in technology require the

Court to once again consider what it means to conduct

a “search” in an electronic age when virtually all

communications exist in electronic form and

government agents sitting in one country have the

ability to execute searches on the far side of the world.

See Olmstead, 277 U.S. at 474 (Brandeis, J.,

dissenting) (“Ways may some day be developed by

which the government, without removing papers from

secret drawers, can reproduce them in court, and by

which it will be enabled to expose to a jury the most

intimate occurrences of the home.”). That it is the SCA

and not the Fourth Amendment that the Court is asked

to interpret is reflective of the Congressional view at

the time of enactment that a digital age required

30

greater protection for the individual’s electronic

communications than the Constitution itself might

otherwise have provided. Indeed, Congress was

mindful of this Court’s jurisprudence under Olmstead

and Katz when it enacted the SCA. See S. Rep. No.

99-541, at 2–3 (1986), reprinted in 1986 U.S.C.C.A.N.

3555, 3555–57.

The question then is, in this modern era, where does

a search and seizure of electronic communications

actually take place? The Government urges that the

answer is one of practical expediency:

if the

communications can be accessed from within the

United States, even if they are not physically within

this country, then the Government can seize them here.

In an interconnected world, the Government’s

argument proves too much. Although it was not true at

the time the SCA was enacted, data and

correspondence held on remote computers is now often

accessible from multiple countries. Nigel Cory, Info.

Tech. & Innovation Found., Cross-Border Data Flows:

Where Are the Barriers, and What Do They Cost? 1, 6

(2017), http://www2.itif.org/2017-cross-border-dataflows.pdf (“[I]n the United States, digitally enabled

services grew from $282.1 billion in 2007 to $356.1

billion in 2011. Globally, . . . over the past decade, data

flows have increased world GDP by 10.1 percent.”).

Americans, Europeans, and others conduct businesses

around the world from offices in many different

countries and often have a technical ability to obtain

from those offices records held on remote computer

systems around the world. Relying on the same

reasoning the Government uses here, it would not be

difficult for the Chinese, Russian, or some other

government to assert a right to access, through a

31

branch office in its territory, the worldwide records of

such companies, including sensitive or personal data

held on servers located in the United States. It is not

a far reach to imagine such a government using a

“domestic” search of offices within its territory to access

trade secrets, personal information, or intellectual

property from data sources in the United States.

This Court has observed that courts should “assume

that legislators take account of the legitimate sovereign

interests of other nations when they write American

laws.” F-Hoffmann-LaRoche, 542 U.S. at 164. This

assumption respects the rights of foreign governments

to legislate within their respective realms, as well as

the Realpolitik nature of international relations – that

actions by this country directed abroad may invite

reciprocal actions by foreign governments.

If the

United States is to adopt a broad view of its jurisdiction

to search and seize electronic records located in the

territory of foreign sovereign governments contrary to

their laws and customs, then Congress and the

Executive should say so expressly. In the absence of

such a manifest expression, Section 2703 should be

interpreted consistent with a traditional understanding

of the warrant power. The Second Circuit’s conclusion

that Congress would not sub silentio enact the

alternative is sound judgment that “helps the

potentially conflicting laws of different nations work

together in harmony – a harmony particularly needed

in today’s highly interdependent commercial world.”

Id. at 164–65.

32

CONCLUSION

For the reasons set out above, CCBE respectfully

submits that the judgement of the United States Court

of Appeals for the Second Circuit should be affirmed.

Respectfully submitted,

Nowell D. Bamberger

Counsel of Record

Brandon N. Adkins

Melissa Gohlke

CLEARY GOTTLIEB STEEN &

HAMILTON LLP

2000 Pennsylvania Ave NW

Washington D.C., 20006

T: (202) 974-1500

F: (202) 974-1999

nbamberger@cgsh.com

Attorneys for Amicus Curiae the

Council of Bars and Law Societies

of Europe

January 18, 2018