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

No. 17-2

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

v.

Petitioner,

MICROSOFT CORPORATION,

Respondent.

On Writ of Certiorari to the

U.S. Court of Appeals

for the Second Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

202-588-0302

rsamp@wlf.org

Date: January 18, 2018

QUESTION PRESENTED

The Stored Communications Act (SCA), 18

U.S.C. § 2701 et seq., imposes restrictions on the

dissemination of electronic communications entrusted

to email providers but includes a limited exception that

permits federal, state, and local governments to

demand access to those communications for lawenforcement purposes, pursuant to a warrant.

The question presented is:

Whether invoking the SCA’s law-enforcement

exception to demand the importation of private

electronic communications stored in a foreign country

is an impermissible extraterritorial application of the

Act.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I.

CONGRESS ADOPTED THE SCA TO

ENHANCE PRIVACY OF STORED

COMMUNICATIONS, NOT TO INCREASE

GOVERNMENT ACCESS TO THEM . . . . . . . . . . 11

II.

THE PRESUMPTION AGAINST EXTRATERRITORIALITY IS UNREBUTTED AND REQUIRES

A FINDING THAT THE SCA DOES NOT

AUTHORIZE THE GOVERNMENT TO ACCESS

COMMUNICATIONS STORED IN IRELAND . . . . . 14

A.

A Statute’s Application Is

“Extraterritorial” When, as Here,

the Statute Focuses on Subject

Matter Associated with Overseas

Locations . . . . . . . . . . . . . . . . . . . . . . 14

B.

The SCA Has a Single Focus; the

Section-by-Section Focus Analysis

Urged by Petitioner Is

Inappropriate . . . . . . . . . . . . . . . . . . . 18

iv

Page(s)

C.

III.

Petitioner’s Section-By-Section

Approach to Determining “Focus”

Is Unworkable and Leads to

Inconsistent Results . . . . . . . . . . . . . 21

INTERPRETING THE SCA AS AUTHORIZING

GOVERNMENTS TO DEMAND PRODUCTION

OF COMMUNICATIONS STORED OVERSEAS

R AISES S ERIOUS F OREIGN P OLICY

CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

v

TABLE OF AUTHORITIES

Cases:

Page(s)

EEOC v. Arabian Am. Oil Co. [“Aramco”],

499 U.S. 244 (1991) . . . . . . . . . . . . . . . . . . . 1, 7, 18

Foley Bros., Inc. v. Filardo,

336 U.S. 281 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 7

King v. Burwell,

135 S. Ct. 2480 (2015) . . . . . . . . . . . . . . . . . . . . . 20

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) . . . . . . . . . . . . . . . 1, 10, 21, 22

Nestle U.S.A., Inc. v. Doe I,

766 F.3d 1033 (9th Cir. 2015),

cert denied, 136 S. Ct. 798 (2016) . . . . . . . . . . . . 22

RJR Nabisco, Inc. v. European Community,

136 S. Ct. 2090 (2016) . . . . . . . . . . . 1, 9, 14, 19, 21

Microsoft Corp. v. AT&T Corp.,

550 U.S. 437 (2007) . . . . . . . . . . . . . . . . . . . . . . . 14

Morrison v. Nat’l Australian Bank Ltd.,

561 U.S. 247 (2010) . . . . . . 1, 3, 4, 7, 15, 16, 18,23

Utility Air Regulatory Group v. EPA,

134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . . . 20

Statutes:

Alien Tort Statute (ATS),

28 U.S.C. § 1350 . . . . . . . . . . . . . . . . . . . . 10, 21, 22

Civil Rights Act of 1964, Title VII . . . . . . . . . . . . . 16

Electronic Communications Privacy Act (ECPA),

99-508, 100 Stat. 1848 . . . . . . . . . . . . . . . . . . . . . 12

Titles I and III,18 U.S.C. §§ 2510-22 . . . . . . 12

Title II, 18 U.S.C. §§ 2701 et seq. . . . . . . . . . 12

vi

Page(s)

Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. §§ 1961-1968 . . . . . . . . . . . 9

18 U.S.C. § 1962 . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 1964(c) . . . . . . . . . . . . . . . . . . . . 19

Securities Exchange Act of 1934,

15 U.S.C. §§ 78a et seq. . . . . . . . . . . . . . . . . . . 9, 16

Stored Communications Act (SCA)

18 U.S.C. §§ 2701 et seq. . . . . . . . . . . . . . . . passim

18 U.S.C. § 2701 . . . . . . . . . . . . . . . . . 8, 12, 20

18 U.S.C. § 2702 . . . . . . . . . . . . . . . . . 8, 12, 20

18 U.S.C. § 2702(b)(8) . . . . . . . . . . . . . . . . . . 24

18 U.S.C. § 2703 . . . . . . . . . . . . . . . 7, 8, 9, 13,

14, 18, 19, 20

18 U.S.C. § 2703(a) & (b) . . . . . . . . . . . . . . . 13

Miscellaneous:

Brief of Ireland as Amicus Curiae for Neither

Party, United States v. Microsoft Corp.,

No. 17-2 (Dec. 13, 2017) . . . . . . . . . . . . . . . . . . . . 24

S. Rep. No. 99-541 (1986) . . . . . . . . . . . . . . . . . . . . 12

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a

non-profit public interest law firm and policy center

with supporters in all 50 states.1 WLF devotes a

substantial portion of its resources to defending free

enterprise, individual rights, a limited and accountable

government, and the rule of law.

To that end, WLF has regularly appeared before

this Court to defend the presumption that, absent clear

congressional intent to the contrary, federal legislation

does not apply extraterritorially and does not apply to

domestic conduct unless that conduct is the “focus” of

the legislation. See, e.g., RJR Nabisco, Inc. v.

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

Royal Dutch Petroleum Co., 569 U.S. 108 (2013);

Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247

(2010); EEOC v. Arabian Am. Oil Co. [“Aramco”], 499

U.S. 244 (1991).

All parties agree that the Stored

Communications Act (SCA), 18 U.S.C. § 2701 et seq.,

includes no language indicating that it applies

extraterritorially—and thus it has no such

applications. The United States nonetheless argues

that its effort to obtain emails stored in Ireland should

be deemed a domestic application of the SCA and,

accordingly, is sanctioned by the statute.

1

Pursuant to Supreme Court Rule 37.6, WLF states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than WLF and its counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing;

blanket letters of consent have been lodged with the Court.

2

WLF is concerned that the Government’s

demand for production of emails stored on servers

located overseas is generating diplomatic strife, an

issue Congress self-evidently did not address when it

adopted the SCA in 1986. More importantly, WLF is

concerned that the Government’s arguments, if

accepted by the Court, would significantly undercut the

presumption against extraterritoriality as applied not

only to the SCA but also to a wide variety of federal

statutes.

WLF recognizes that Congress is empowered to

specify that laws it adopts apply outside of our borders.

But the decision to apply a statute extraterritorially

must be made by Congress, not the courts—no matter

how strongly federal officials believe that such

application is necessary for law enforcement purposes.

The proper response by the Executive Branch to such

perceived needs is to propose legislation to Congress

that would amend the SCA, not to urge courts to adopt

an extraterritoriality analysis that would by-pass

Congress’s role.

STATEMENT OF THE CASE

As the Second Circuit recognized, the facts of

this case are “largely undisputed.” Pet. App. 5a.

Respondent Microsoft Corp. is an email service

provider. It stores its customers’ emails on a network

of servers located throughout the world. This case

involves the efforts of federal prosecutors to obtain

access to an unnamed Microsoft customer’s emails

being stored in Microsoft’s datacenter in Ireland (and

nowhere else).

3

In order to maximize its quality of service,

Microsoft’s policy is to store a customer’s emails in the

datacenter closest to its customer’s residence. Thus,

although prosecutors have not publicly revealed the

citizenship or residence of their target, there is good

reason to believe that he or she does not live in this

country but rather lives in or near Ireland.

In 2013, prosecutor invoked the SCA to obtain a

warrant from the U.S. District Court for the Southern

District of New York, requiring Microsoft to produce all

information in its possession associated with the

target’s email account, including the contents of all

emails sent by the target. The court determined that

there was probable cause to believe that a crime had

been committed and that evidence of the crime could be

found in the email account. Microsoft declined to

produce emails that it was storing for its customer in

Ireland, and it appealed to the Second Circuit from an

order holding it in contempt of court for failing to

comply with the warrant.

The Second Circuit reversed and remanded to

the district court with instructions to quash the

warrant. Pet. App. 1a-48a. The appeals court ruled

that enforcing the warrant with respect to emails

stored in Ireland would constitute an impermissible

extraterritorial application of the SCA.

The appeals court explained, “[W]e presume that

legislation of Congress ‘is meant to apply only within

the territorial jurisdiction of the United States,’ unless

a contrary intent clearly appears.” Pet. App. 22a

(quoting Morrison, 561 U.S. at 255). After determining

that the SCA includes no language expressing a

4

contrary intent of that nature, the court concluded,

“Congress did not intend the SCA’s warrant

requirement to apply extraterritorially.” Id. at 36a.

The Second Circuit then addressed the second

step of Morrison’s two-step framework for analyzing

extraterritoriality issues: whether Petitioner’s

requested warrant was merely a domestic application

of the SCA. It began its analysis by identifying the

“focus” of the relevant SCA provisions: “protecting the

privacy of the content of a user’s stored electronic

communications.” Pet. App. 37a. Based on that

finding, the court “ha[d] little trouble concluding that

execution of the Warrant would constitute an unlawful

extraterritorial application of the Act.” Id. at 43a. It

held that “the invasion of the customer’s privacy takes

place under the SCA where the customer’s protected

content is accessed”—in this case, Dublin, Ireland. Id.

at 43a-44a. The court deemed it irrelevant that

Microsoft is a U.S. company and that the warrant

required disclosure of the stored communications here

in the United States (following Microsoft’s retrieval of

the communications from Ireland). Id. at 45a. The

court observed that if federal officials seek access to

emails stored in a foreign country, they can seek the

assistance of the foreign government pursuant to the

Mutual Legal Assistance Treaties (MLATs) entered

into between the United States and numerous foreign

governments (including Ireland). Id. at 46a.

Judge Lynch concurred in the judgment. Pet.

App. 49a-72a. He recognized that placing emails

stored in foreign countries beyond the reach of U.S.

court orders might create significant law-enforcement

problems. He further recognized that the “balance”

5

(between privacy concerns and the needs of

prosecutors) achieved by barring SCA warrants for

emails stored overseas by email service providers “is

not likely to constitute the ideal balance of conflicting

policy goals.” Id. at 69a. He nonetheless concluded

that because “the decision about whether and when to

apply U.S. law to actions occurring abroad is a question

that is left entirely to Congress,” id. at 56a, and

because Congress (when it adopted the SCA in 1986)

gave no thought whatsoever to extraterritoriality

issues, “my colleagues have ultimately reached the

right result.” Id. at 67a.

Judge Lynch concluded that the relief sought by

prosecutors should most appropriately be provided by

Congress, which “need not make an all-or-nothing

choice” of the sort to which the courts are confined. Id.

at 69a. He explained:

[Congress] is free to decide, for example,

to set different rules for access to

communications stored abroad depending

on the nationality of the subscriber or of

the corporate service provider. It could

provide for access to such information

only on a more demanding showing than

probable cause. ... Or it could adopt other,

more creative solutions that go beyond

the possibilities evident to federal judges

limited by their own experience.

Id. at 69a-70a.

The Second Circuit denied the Government’s

petition for rehearing en banc. Judge Carney wrote an

6

opinion concurring in the denial, and four judges wrote

dissenting opinions. Pet. App. 105a-154a.

SUMMARY OF ARGUMENT

The SCA governs the handling, by email service

providers, of emails they are storing on behalf of

others. As all parties agree, the Act says absolutely

nothing about applying its strictures to

communications stored overseas.

Under those

circumstances, the Second Circuit’s conclusion that the

Act does not reach communications stored overseas

was a straightforward and wholly unobjectionable

application of the presumption agains t

extraterritoriality. The appeals court’s judgment

should be affirmed.

Congress adopted the SCA in 1986, at the

infancy of email. It did so because it recognized an

emerging threat to privacy. Prior to the 1980s, most

written communications were delivered by the U.S.

mail or other courier services that maintained control

over the paper communications for only a very brief

period of time. By contrast, email service providers

stored their customers’ emails for a far longer period,

thereby significantly increasing the chances that the

privacy of the author and recipient might be

compromised.

The SCA addressed those privacy concerns by

making it a criminal offense for anyone to access stored

communications without authorization, and by

prohibiting email service providers (subject to very

limited exceptions) from disclosing stored

communications to third parties.

One of those

7

exceptions, set forth in 18 U.S.C. § 2703, authorizes

disclosure in response to a warrant obtained by a

“government entity” from “a court of competent

jurisdiction.” Congress included no language in the

SCA discussing whether the Act—either its nondisclosure provisions or its limited exceptions—should

apply to electronic communications stored overseas.

This Court has repeatedly explained that

“legislation of Congress, unless a contrary intent

appears, is meant to apply only within the territorial

jurisdiction of the United States.” Aramco, 499 U.S. at

248 (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281,

285 (1932). The presumption against extraterritoriality

applies “regardless of whether there is a risk of conflict

between the American statute and a foreign law.”

Morrison, 561 U.S. at 255. “When a statute gives no

clear indication of an extraterritorial application, it has

none.” Ibid.

The somewhat limited number of emails held by

U.S. service providers in 1986 were all being stored on

computers maintained in the United States. When

adopting the SCA, Congress did not contemplate (and

could not have contemplated) the possibility that stored

communications might travel instantaneously across

international borders. Accordingly, the SCA did not

address: (1) protecting privacy with respect to emails

stored abroad; and (2) creating a warrant exception to

allow for limited disclosure of emails stored abroad.

Given that omission, Morrison dictates that the SCA

has no application to electronic communications stored

abroad.

There is no merit to Petitioner’s argument that

8

its effort to enforce a warrant for communications

stored in Ireland is nothing more than a domestic

application of the SCA. Petitioner points out that

Microsoft has a principal place of business in this

country. It asserts that invocation of § 2703’s warrant

procedures is consistent with common-law subpoena

procedures that (according to Petitioner) would have

allowed federal and state governments to demand that

a U.S. company produce all documents within its

control—even documents stored overseas. But even if

that assertion were correct (and WLF disputes that

assertion with respect to overseas documents belonging

to a third party), it does not support Petitioner’s claim

that its warrant constitutes a domestic application of

the SCA. The Second Circuit correctly determined that

protecting the privacy of “stored communications” is

the “focus” of the SCA.

Because the stored

communications constituting the “focus” of this dispute

are located overseas, Petitioner’s efforts to obtain those

communications cannot plausibly be characterized as

a domestic application of the SCA.

Petitioner contends that the “focus” of § 2703 is

different from the focus of §§ 2701 and 2702 (which bar

unauthorized third-party access to stored

communications and impose strict limits on the

authority of email service providers to disclose those

communications). Petitioner contends that the “focus”

of § 2703 (which contains the SCA’s warrant

provisions) is disclosure of stored communications.

Because its warrant requires Microsoft to disclose the

contested emails to prosecutors here in the United

States, Petitioner argues that its warrant simply seeks

to apply the SCA in a domestic context.

9

WLF agrees with Microsoft that even if § 2703

were examined in isolation, its “focus” would be

protecting the privacy of the owners of stored

communications—in particular, the limited

circumstances under which those privacy interests may

be overcome. But more importantly, Petitioner’s

section-by-section approach to determining statutory

“focus” is unsound and has never been endorsed by this

Court. Petitioner cites RJR Nabisco in support of its

section-by-section approach, but that case never even

reached the “focus” issue (step two of the traditional

approach to adjudicating extraterritoriality questions).

Rather, the Court confined its analysis to determining

whether Congress intended extraterritorial application

of the liability and cause-of-action provisions of the

Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961-1968. RJR Nabisco, 136 S.

Ct. at 2101-2111. In its opinion setting forth its most

detailed explanation of the “focus” inquiry (Morrison),

the Court discerned but a single “focus” of the relevant

provisions of the Securities Exchange Act of 1934, 15

U.S.C. §§ 78a et seq., and never suggested that a

separate “focus” inquiry should be undertaken for

every section of interconnected statutory provisions.

A fundamental objection to Petitioner’s sectionby-section approach is that it deprives the “focus”

inquiry of clarity, thereby making it exceedingly

difficult for lower courts to apply it in a uniform

manner. While all can agree, for example, that the

overriding purpose of the SCA is to protect the privacy

of stored information, there are no clear guideposts for

determining whether the “focus” of § 2703 (when

viewed in isolation) should be viewed as a strictly

limited exception to the SCA’s privacy provisions or (as

10

Petitioner suggests) a free-standing grant of

government entitlement to disclosure of stored

communications.

A perceived lack of clarity in the step-two “focus”

analysis has led to conflicting appeals court decisions

addressing extraterritoriality issues arising under the

Alien Tort Statute (ATS), 28 U.S.C. § 1350. The Court

determined in Kiobel that Congress did not intend the

ATS (which creates federal court jurisdiction for a

small number of claims by aliens alleging violations of

the law of nations) to apply extraterritorially. Kiobel,

569 U.S. at 124. Because most ATS claims pending in

federal courts assert that a U.S.-based company aided

and abetted human rights violations committed

overseas by others (often, a foreign government), one

might have supposed that those claims would be

dismissed in light of Kiobel—after all, the

circumstances that are the plain focus of the ATS

(violations of the law of nations) all occurred overseas.

However, federal appeals courts have adopted

conflicting interpretations of the “focus” test, with the

result that several courts have declined to dismiss ATS

claims that allege overseas human rights violations by

U.S.-based companies. WLF urges the Court to

eliminate this confusion by clarifying that a set of

interlocking statutory provisions should be deemed to

have but a single “focus” for purposes of determining

whether they are being applied domestically or

extraterritorially.

Petitioner’s approach should also be rejected

because it would create a host of practical problems.

Most prominently, it is likely to create friction with

11

foreign governments, and indeed (as evidenced by

various amicus curiae briefs filed in this case) it

already has.

Under Petitioner’s approach, any

government—federal, state, or local—would be

permitted to demand that a foreign corporation

conducting business in this country produce

communications stored anywhere in the world, even if

the emails in questions have no connection with the

United States.

WLF respectfully submits that

Congress, not a court, is the body that most

appropriately determines whether law-enforcement

considerations outweigh the foreign-relations costs

likely to be incurred as a result of such demands.

ARGUMENT

I.

CONGRESS ADOPTED THE SCA TO ENHANCE

PRIVACY OF STORED COMMUNICATIONS, NOT

TO INCREASE GOVERNMENT ACCESS TO THEM

Petitioner’s citation to the SCA as the basis for

its claimed right to require disclosure of electronic

communications stored in Ireland is ironic. Both the

text of the statute and its legislative history

demonstrate that Congress adopted the SCA to protect

the privacy of communications being stored by email

service providers, not to increase the authority of

governments to pry into private communications.

What we now refer to as email began to develop

in the early 1980s. Advances in technology permitted

individuals to transmit written communications

electronically—and they could do so much more quickly

via electronic means than by using the U.S. Mail or

12

other courier services. Congress adopted the SCA in

response to concerns that growth of electronic

communications would be impeded unless the privacy

of communications sent via email could be assured.

Lack of privacy protections was of particular concern

because, as Congress recognized, email service required

that electronic communications be stored on the

computers of email service providers for lengthy time

periods. S. Rep. No. 99-541, at 3-5 (1986).

The privacy focus of the SCA is demonstrated by

the title of the legislation of which it formed a part: the

Electronic Communications Privacy Act, Pub. L. 99508, 100 Stat. 1848 (1986).2 As the Second Circuit

explained, the SCA was designed to “protect[ ] the

privacy of the contents of files stored by service

providers and of records held about the subscriber by

service providers, according to the Justice

Department.” Pet. App. 13a.

The initial section of the SCA, 18 U.S.C. § 2701,

prohibits unauthorized third parties from, inter alia,

obtaining access to electronic communications stored

by a service provider. Section 2702 impose strict limits

on the authority of service providers to disclose those

communications, subject to several

exceptions—including disclosures made in response to

an authorized government demand. Section 2703 sets

2

The SCA is Title II of the ECPA. Title I prohibits the

interception of wire, oral, or electronic transmissions. Title III

requires government entities to obtain court orders before

installing pen registers or trap and trace devices. See 18 U.S.C.

§§ 2510-22.

13

forth the conditions under which a government is

authorized to obtain access to stored electronic

communications. In order to obtain access to recently

stored communications, or to obtain access to older

communications without first notifying the customer,

the government must obtain “a warrant, issued using

the procedures described in the Federal Rules of

Criminal Procedure (or, in the case of a State court,

using State warrant procedures) by a court of

competent jurisdiction.” 18 U.S.C. §§ 2703(a) & (b).

There is no hint in either the text or legislative

history of the SCA that Congress adopted § 2703 for

the purpose of expanding government access to stored

electronic communications. Rather, all available

evidence indicates that the SCA was designed to

strengthen the privacy rights of the authors and

recipients of emails and that Congress included § 2703

for the purpose of creating limited exceptions to the

Act’s privacy provisions—by describing limited

circumstances under which governments would be

permitted to gain access to stored communications.

More importantly for purposes of this case, the

SCA includes no language suggesting that the Act

(including the provisions of § 2703) applies to electronic

communications stored outside of the United States.

Indeed, the parties are in complete agreement that

Congress in 1986 did not contemplate that U.S. email

service providers might store electronic

communications overseas—and that, accordingly, it

had had no occasion to address the issue.

14

II.

THE PRESUMPTION AGAINST EXTRATERRITORIALITY IS UNREBUTTED AND REQUIRES A

FINDING THAT THE SCA DOES NOT AUTHORIZE

GOVERNMENT TO ACCESS

THE

COMMUNICATIONS STORED IN IRELAND

The well-accepted presumption against

extraterritoriality has been explained by the Court as

follows: “Absent clearly expressed congressional intent

to the contrary, federal laws will be construed to have

only domestic application.” RJR Nabisco. 136 S. Ct. at

2100. The presumption is an outgrowth of “a basic

premise of our legal system that, in general, ‘United

States law governs domestically but does not govern

the world.’” Ibid (quoting Microsoft Corp. v. AT&T

Corp., 550 U.S. 437, 454 (2007)).

As noted above, Petitioner does not contest the

absence of any “clearly expressed congressional intent”

that the SCA should govern the world and concedes

that the SCA is inapplicable outside the United States.

It nonetheless argues that it is entitled to invoke

§ 2703 to demand access to electronic communications

stored in Ireland, insisting that its demand constitutes

a mere domestic application of the SCA. That counterintuitive assertion finds no support in this Court’s case

law.

A.

A Statute’s Application is “Extraterritorial” When, as Here, the Statute

Focuses on Subject Matter

Associated with Overseas Locations

A finding that Congress did not intend

15

extraterritorial application of a statute does not

necessarily resolve an extraterritoriality dispute.

When a party contends that its attempted invocation of

a statute is merely domestic in character, courts turn

to “step two” of the traditional approach to adjudicating

extraterritoriality questions—a process that requires

identifying the “focus” of the statute in question.

Once a statute’s “focus” (or “the object[ ] of the

statute’s solicitude”) is identified, courts should apply

that focus to determine whether a party’s proposed

application of the statute should be deemed

extraterritorial; the application is extraterritorial when

the subject matter upon which the statute principally

focuses is associated with overseas locations.

Morrison, 561 U.S. at 266-67. Morrison stated that the

proposed application cannot escape being classified as

“extraterritorial” simply because it has some

connection with the United State:

[I]t is a rare case of prohibited

extraterritorial application that lacks all

contact with the territory of the United

States. But the presumption against

extraterritorial application would be a

craven watchdog indeed if it retreated to

its kennel whenever some domestic

activity is involved in the case.

Id. at 266 (emphasis in original). Morrison pointed to

Aramco as an example of that principle. Aramco held

that a suit alleging that an American company engaged

in invidious employment discrimination against

employees working in Saudi Arabia sought an

16

improper extraterritorial application of Title VII of the

Civil Rights Act of 1964—notwithstanding the fact that

the employee had been hired in Houston and was an

American citizen. Morrison, 561 U.S. at 266. Although

some portions of the employment relationship were

associated with the United States, the focus of Title VII

is the prevention of employment discrimination, and

the allegedly discriminatory acts occurred overseas.

Morrison employed its “focus” analysis to

conclude that litigants alleging securities fraud in

violation of the Securities Exchange Act were seeking

an improper extraterritorial application of the Act.

Based on its examination of a number of provisions in

the Exchange Act (including its prologue), the Court

concluded that the Act’s “focus” is purchases and sales

of securities in the United States. Ibid. The plaintiffs

alleged that the defendants engaged in extensive fraud

within the United States, but their damage claims

rested on an allegation that the U.S.-based fraud

affected the purchase and sales of securities that

occurred in Australia. Because the purchases and

sales lacked any significant U.S. connection, the Court

concluded that the Exchange Act had no application to

those transactions. Id. at 266-67.

An analysis of the SCA’s focus—the protection of

stored communications from unauthorized disclosures,

in order to protect the privacy interests of the

customers of email service providers—leads to a

similar result. The location most closely associate with

that statutory focus is the place where the targeted

emails were stored by Microsoft—in this case, Dublin,

Ireland. Because that location is overseas, the SCA (a

17

statute that does not apply extraterritorially) is

inapplicable to this case. The customer (as well as

Microsoft) must look to Irish law to protect the privacy

of the stored electronic communications; and federal,

state, and local governments must look to Irish law as

well if they wish to demand access.

The only other location plausibly associated with

the “focus” of the SCA is the country of

residence/citizenship of the owner of the emails. Given

Microsoft’s policy of storing emails at the datacenter

closest to what it believes to be the customer’s place of

residence, the targeted customer most likely lives in or

near Ireland and almost certainly does not live in the

United States.3 In any event, Petitioner has not

submitted evidence that the target is, in fact, a citizen

or resident of the United States. So Petitioner’s

proposed application of the SCA should be deemed

extraterritorial even if the Court were to conclude that

the SCA’s “focus” is most closely associated with the

residence/citizenship of the email owner whose privacy

is being protected.

3

Indeed, because Petitioner plainly knows the place of

residence of the individual it is targeting, one can reasonably

expect that it would have disclosed that residence to the Court

were the target a U.S. resident. Thus, its failure to disclose

residence is a strong indication that the target neither resides in

this country nor is a U.S. citizen.

18

B.

The SCA Has a Single Focus; the

Section-by-Section Focus Analysis

Urged by Petitioner Is Inappropriate

This matter’s single domestic connection is

Microsoft’s residence: it is incorporated in the United

States and maintains its principal place of business

here. But as Aramco and Morrison make clear, the

presumption against extraterritoriality cannot be

overcome simply by demonstrating that “some domestic

activity is involved in the case.” Morrison, 561 U.S. at

266.

Petitioner does not contest that the “the object of

the [SCA’s] solicitude,” id. at 267, is protecting the

privacy of electronic communications being stored by

email service providers.

Petitioner nonetheless

contends that the Court’s “focus” analysis requires that

every section of the SCA be addressed separately—and

that it should be deemed to be applying the Act

domestically if the precise statutory provision it seeks

to invoke has a “focus” associated with a location in the

United States. It further contends that the “focus” of

§ 2703 is the disclosure of electronic communications

under Microsoft’s control and that Microsoft (as a

corporation with a U.S. presence) can be compelled to

transfer stored communications from Ireland to the

U.S. and then produce them domestically.

WLF agrees with Microsoft that even if the

“focus” of § 2703 were considered in isolation,

Petitioner’s efforts to invoke that provision in this case

would constitute an extraterritorial application of the

19

SCA. As fully explained by Microsoft and the Second

Circuit, Section 2703’s imposition of a “warrant”

requirement is a strong textual indication that

Congress did not intend to permit federal, state, and

local government officials to demand access to

communications stored overseas.

More importantly, Petitioner’s section-by-section

approach to determining statutory “focus” is unsound

and has never been endorsed by this Court. Petitioner

cites RJR Nabisco in support of its section-by-section

approach, but that case never even reached the “focus”

issue (step two of the traditional approach to

adjudicating extraterritoriality questions). Rather, the

Court confined its analysis to determining whether

Congress intended extraterritorial application of the

liability and cause-of-action provisions of RICO. RJR

Nabisco, 136 S. Ct. at 2101-2111.

The Court’s separate consideration of Congress’s

intent with respect to RICO’s liability provisions, 18

U.S.C. § 1962, and its civil-cause-of-action provision, 18

U.S.C. § 1964(c), was fully consistent with its

longstanding approach to applying the presumption

against extraterritoriality. The Court recognized that

Congress might plausibly have intended some of

RICO’s prohibitions to apply to conduct occurring

outside the United States while simultaneously

denying a right of action to individuals injured by such

conduct—because “providing a private civil remedy for

foreign conduct creates a potential for international

friction beyond that presented by merely applying U.S.

substantive law to that foreign conduct.” Id. at 2106.

Separate consideration of the two provision was

20

mandated by the presumption against

extraterritoriality, the Court explained, because “when

a statute provides for some extraterritorial application,

the presumption against extraterritoriality operates to

limit that provision to its terms.” Id. at 2102. But

contrary to Petitioner’s contention, RJR Nabisco never

suggested that RICO should be deemed to have more

than one “focus” for purposes of determining whether

the plaintiffs were proposing domestic application of

the statute.

Petitioner’s efforts to consider § 2703 in isolation

cuts against well-established canons of statutory

construction. This Court has explained that a court’s

“duty” is “to construe entire statutes, not isolated

provisions.” King v. Burwell, 135 S. Ct. 2480, 2489

(2015). It is a “fundamental canon of statutory

construction that the words of a statute must be read

in their context and with a view to their place in the

overall statutory scheme.” Utility Air Regulatory

Group v. EPA, 134 S. Ct. 2427 (2014). When read in

the context of the entire SCA, § 2703 quite plainly is a

closely interlocking part of an overall statutory scheme

designed to protect the privacy of stored

communications while recognizing limited exceptions

to that privacy—not a free-standing grant of authority

to federal, state, and local officials to demand access to

private communications. To cite just one of the many

textual clues: § 2703 is expressly cited in both § 2701

and § 2702 as an “exception” to the broad privacy

protections afforded by those two sections to stored

communications. And, of course, nothing within the

statutory “exception” provides any indication that

Congress intended it to have extraterritorial effect.

21

C.

Petitioner’s

Section-By-Section

Approach to Determining “Focus” Is

Unworkable and Leads to

Inconsistent Results

Petitioner’s section-by-section approach to

determining “focus” should also be rejected because it

is unworkable. As RJR Nabisco noted, “It is a rare

case of prohibited extraterritorial application that

lacks all contact with the territory of the United

States.” RJR Nabisco, 561 U.S. at 266. If courts must

examine every section of a statute already determined

to have no extraterritorial application—in order to

determine whether at least one of the sections “focuses”

on a subject matter that is associated with a domestic

location—the extraterritoriality analysis will become

extremely cumbersome. And because the party seeking

to invoke the statute will almost always be able to

point to some contact with the United States and to

plausibly argue that that contact bears some

relationship to the focus of at least one section of the

statute, inconsistent judicial decisions are inevitable.

The post-Kiobel history of ATS litigation starkly

illustrates the need for a clear and easily applied

“focus” test. The Court determined in Kiobel that

Congress did not intend the ATS (which creates federal

court jurisdiction for a small number of claims by

aliens alleging violations of “the law of nations”) to

apply extraterritorially. Kiobel, 569 U.S. at 124.

Because most ATS claims pending in federal courts

assert that a U.S.-based company aided and abetted

human rights violations committed overseas by others

(often, a foreign government), one might have supposed

22

that those claims would be dismissed in light of

Kiobel—after all, the circumstances that are the plain

focus of the ATS (violations of the law of nations) all

occurred overseas.

But numerous ATS claims based on alleged

overseas human rights violations continue to thrive in

the lower courts, in large measure due to confusion

regarding how to apply the step-two “focus” test to

these claims. The Ninth Circuit, for example, has

concluded that ATS claims are being applied

domestically if a U.S.-based corporate defendant takes

at least some actions within the United States that

bear some relationship to human rights violations that

occur overseas. Nestle U.S.A., Inc. v. Doe I, 766 F.3d

1033 (9th Cir. 2015), cert. denied, 136 S. Ct. 798 (2016).

Indeed, the Ninth Circuit even questioned whether the

step-two “focus” test has any application in the context

of claims arising under the ATS. Id. at 1018.

The Court can eliminate much of the current

confusion regarding the “focus” test by mandating that

once a court determines that a statute consisting of

interlocking provisions has no extraterritorial

applications, it should identify the single, dominant

focus of those provisions for purposes of ascertaining

whether the court is being asked to apply the statute

domestically or extraterritorially.

23

III.

INTERPRETING THE SCA AS AUTHORIZING

GOVERNMENTS TO DEMAND PRODUCTION OF

COMMUNICATIONS STORED OVERSEAS RAISES

SERIOUS FOREIGN POLICY CONCERNS

Petitioner’s proposed construction of the SCA

should also be rejected because it would create a host

of practical problems. Most prominently, it is likely to

create friction with foreign governments, and indeed

(as evidenced by various amicus curiae briefs filed in

this case) it already has.4 Under Petitioner’s approach,

any government—federal, state, or local—would be

permitted to demand that a foreign corporation

conducting business in this country produce

communications stored anywhere in the world, even if

the emails in questions have no connection with the

United States. It is unlikely that Congress ever

intended to grant local officials unilateral authority to

act in a manner that could place the United States into

conflict with its allies.

Moreover, the United States has available to it

alternative means to obtain the stored communications

it seeks. Ireland’s amicus brief indicates that it would

expeditiously consider any request from U.S.

government officials for access to electronic

4

The Court has determined, moreover, that the

presumption against extraterritoriality exists in large measure

because of the ever-present potential for friction with foreign

governments. It applies without regard to whether any friction is

likely to develop. Morrison, 561 U.S. 2877-78 (“The canon or

presumption applies regardless of whether there is a risk of

conflict between the American statute and a foreign law.”).

24

communications stored in Ireland:

Ireland continues to facilitate cooperation

with other states, including the United

States, in the fight against crime. Indeed,

Ireland and the United States are already

parties to a treaty [the MLAT] addressing

the subject of this appeal. ... Ireland

therefor considers that the procedures

provided for in the MLAT represent the

most appropriate means to address

requests such as those which are the

object of the warrant in question.

Brief for Ireland as Amicus Curiae in Support of

Neither Party (Dec. 13, 2017) at 2 (emphasis added).5

WLF does not contest that the decision below

may be causing some difficulties for law-enforcement

officials—at least in non-emergency situations. See 18

U.S.C. § 2702(b)(8) (authorizing email service providers

to unilaterally decide to release emails to a

“government entity” in “an emergency involving danger

of death or serious physical injury”).

Properly

balancing privacy concerns, foreign policy concerns,

and law-enforcement needs can be a very difficult

proposition. But as Judge Lynch stated in his

concurring opinion, because “the decision about

whether and when to apply U.S. law to actions

5

Petitioner asserts that in other cases it may be difficult

to determine precisely where electronic communications are

stored. In this case, however, the precise location where the

communications are stored (Ireland) is uncontested.

25

occurring abroad is a question that is left entirely to

Congress,” Pet. App. 56a, and because Congress (when

it adopted the SCA in 1986) gave no thought

whatsoever to extraterritoriality issues, the proper

course for the courts is to stay their hands while

Congress determines how best to update the SCA. Id.

at 67a-70a.

WLF respectfully submits that Congress, not a

court, is the body that most appropriately determines

whether law-enforcement considerations outweigh the

foreign-relations costs likely to be incurred as a result

of demands for electronic communications stored

overseas.

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

January 18, 2018

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Found.

2009 Massachusetts Ave., NW

Washington, DC 20036

202-588-0302

rsamp@wlf.org