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 A ppeals for the Second Circuit

BRIEF OF AMICI CURIAE FOURTH

AMENDMENT SCHOLARS IN SUPPORT

OF THE RESPONDENT

Michael Vatis

Counsel of Record

Jeffrey A. Novack

Johanna Dennehy

Marcus A. Gadson

Steptoe & Johnson LLP

1114 Avenue of the Americas

New York, New York 10036

(212) 506-3900

mvatis@steptoe.com

Counsel for Amici Curiae

278115

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

Property Rights Lie at the Core of the

Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 2

II. A Constitutionally Significant Intrusion

Occurs at the Location of the Property,

Regardless of the Place from Which the

Government Conducts the Search or

Seizure or the Means It Uses . . . . . . . . . . . . . . . . 4

III. T he Ema i ls at Issue Here A re the

Property of the Email User . . . . . . . . . . . . . . . . . 7

IV. Emails A re Physically Encoded into

t he S t or a g e Me d iu m , a nd H ave a

Physical Presence in the Place Where

They Are Stored . . . . . . . . . . . . . . . . . . . . . . . . . . 11

V.

E x e c u t i o n o f t h e Wa r r a n t H e r e

Would Constitute an Imper missible

Ex t rat er r it or ia l Appl icat ion of the

Stored Communications Act Since It

Would Intrude on Property in Ireland . . . . . . . 12

ii

Table of Contents

Page

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Berger v. New York,

388 U.S. 41 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Boyd v. United States,

116 U.S. 616 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fisher v. United States,

425 U.S. 391 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Florida v. Jardines,

569 U.S. 1 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 14

In re Grand Jury Subpoena Served Upon

Horowitz,

482 F.2d 72 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . 13

Ex parte Jackson,

96 U.S. 727 (1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Kyllo v. United States,

533 U.S. 27 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

LeClair v. Hart,

800 F.2d 692 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 8

iv

Cited Authorities

Page

Matter of Marc Rich & Co., A.G.,

707 F.2d 663 (2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . 10

Microsoft Corporation v. United States,

829 F.3d 197 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 11

Olmstead v. United States,

277 U.S. 438 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Riley v. California,

134 S. Ct. 2473 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Silverman v. United States,

365 U.S. 505 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Smith v. Maryland,

442 U.S. 735 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re United States,

665 F. Supp. 2d 1210 (D. Or. 2009) . . . . . . . . . . . . . . 11

United States v. Ackerman,

831 F.3d 1292 (10th Cir. 2016) . . . . . . . . . . . . . . . . . . . 8

United States v. Barr,

605 F. Supp. 114 (S.D.N.Y. 1985) . . . . . . . . . . . . . . . . 13

United States v. Cotterman,

709 F.3d 952 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . 8

v

Cited Authorities

Page

United States v. Jacobsen,

466 U.S. 109 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Jones,

565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6

United States v. Miller,

425 U.S. 435 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Powers,

2010 U.S. Dist. LEXIS 34007

(D. Neb. Mar. 4, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Van Horne’s Lessee v. Dorrance,

2 U.S. (2 Dall.) 304 (1795) . . . . . . . . . . . . . . . . . . . . . . . 2

Woolsey v. Judd,

11 How. Pr. 49 (N.Y. Super. Ct. 1855) . . . . . . . . . . . . . 7

Yates v. United States,

135 S. Ct. 1074 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Constitution

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

Cited Authorities

Page

Statutes

18 U.S.C. § 1519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Electronic Communications Privacy Act . . . . . . . . . . . . 1

Stored Communications Act . . . . . . . . . . . . . . . . . . passim

Rules

Supreme Court Rule 37.3 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Law Review Articles

Lon A. Berk, After Jones, The Deluge: The

Fo u r t h A m e n d m e n t ’ s T r e a t m e n t o f

Infor mation , Big Data , and the Cloud,

14 J.H. Tech. L. 1 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 9

Morgan Cloud, Property is Privacy: Locke

an d Bran d ei s in th e Twenty-First

Century, 55 A m. Crim. L. Rev. 37 (2017) . . . . . . . . . . 7

Steven J. Eagle, The Development of Property

Rights in America and the Property Rights

Movement, 1 Geo. J.L. & Pub. Pol’y 77 (2002) . . . . . 2

vii

Cited Authorities

Page

Andrew Guthrie Ferguson, The Internet of

Things and the Fourth Amendment of Effects,

104 Cal. L. Rev. 805 (2016) . . . . . . . . . . . . . . . . . . . . . 8

R o der ick O ’ Dor i sio, “ Yo u’ve G ot Mai l!”

Decoding the Bits and Bytes of Four th

Am en dm ent Co mp uter Search es Af ter

Ackerman, 94 Denv. L. Rev. 651 (2017) . . . . . . . . . . 11

Christopher Slobogin, Subpoenas and Privacy,

54 DePaul L. Rev. 805 (2005) . . . . . . . . . . . . . . . . . . 13

1

INTEREST OF AMICI CURIAE1

The amici curiae—whose biographies appear in the

appendix—are constitutional scholars who have studied

the Fourth Amendment and its history. They have an

interest in seeing that the Electronic Communications

Privacy Act (of which the Stored Communications Act

is a part) is interpreted consistently with the Founders’

understanding that property rights undergird the Fourth

Amendment.

SUMMARY OF ARGUMENT

Although this case involves technologies developed

relatively recently, the issue it presents can be resolved by

drawing on principles of property law that are embedded in

the text of the Fourth Amendment and that have animated

its interpretation since its ratification in 1791. Because

execution of the warrant at issue in this case would require

a trespass upon an email user’s property (as well as an

invasion of his privacy) in Ireland, such execution would

result in an impermissible extraterritorial application of

the Stored Communications Act (“SCA”).

1.  Pursuant to Supreme Court Rule 37.6, the amici curiae

affirm that no counsel for a party authored this brief in whole or

in part; that no party or counsel for a party made a monetary

contribution toward the preparation or submission of this brief;

and that no person other than the amici curiae or their counsels

made a monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.3, each party has consented

to the filing of this brief, and copies of the consents are on file with

the Clerk of the Court.

2

Accordingly, the judgment below should be affirmed.

ARGUMENT

A constitutionally significant event occurs when

property is seized or searched, whether by direct

physical intrusion or by the use of technology from a

remote location. This intrusion occurs at the location of

the property, regardless of the location from which the

Government conducts the seizure or search, and regardless

of whether the Government conducts the action itself or

through an agent. Execution of the warrant at issue here

would intrude upon property because the emails sought

by the government here are the property of the Microsoft

email user, and that intrusion would occur in Ireland, the

locus of the emails. Compelling Microsoft to access and

copy emails stored on a server in Ireland therefore would

constitute an impermissible extraterritorial application of

the SCA, even if the ultimate disclosure of information to

the Government occurred in the United States.

I.

Property Rights Lie at the Core of the Fourth

Amendment.

Protecting citizens’ property rights was “the ‘great

focus’” of the Founders. Steven J. Eagle, The Development

of Property Rights in America and the Property Rights

Movement, 1 Geo. J.L. & Pub. Pol’y 77, 83 (2002). Just

seven years after the Constitution’s ratification, Justice

Patterson declared “that the right of acquiring and

possessing property, and having it protected, is one of the

natural, inherent, and unalienable rights of man” and that

“[t]he preservation of property then is a primary object

of the social compact.” Van Horne’s Lessee v. Dorrance,

2 U.S. (2 Dall.) 304, 310 (1795).

3

This core r ight was enshrined in the Fourth

Amendment. In 1886, the Court recognized in Boyd

v. United States that the Fourth Amendment was

“framed” to fit the fact that “[t]he great end for which

men entered into society was to secure their property.”

116 U.S. 616, 627 (1886) (quoting Entick v. Carrington,

(1765) 95 Eng. Rep. 807; 19 How. St. Tr. 1029, 1066).

Because Fourth Amendment rights are defined in terms

of our “persons, houses, papers, and effects,” until recent

decades, this Court employed property-based rules to

determine whether there was a search or seizure within

the meaning of the Fourth Amendment. See, e.g., United

States v. Jones, 565 U.S. 400, 405 (2012) (confirming

that “our Fourth Amendment jurisprudence was tied to

common-law trespass, at least until the latter half of the

20th century”). Under this approach, an intrusion into or

upon an individual’s property was the archetypal Fourth

Amendment search or seizure. Id.

In 1967, this Court supplemented its property-based

approach by recognizing that, in addition to protecting

individuals against trespass to their property, the Fourth

Amendment guarantees a reasonable expectation of

privacy. See Katz v. United States, 389 U.S. 347 (1967);

see also Jones, 565 U.S. at 409 (recognizing that the

reasonable expectation of privacy test “has been added

to, not substituted for, the common-law trespassory test”).

Today, a majority of the Justices of this Court have

recognized that these two approaches complement one

another. Indeed, they often lead to the same result, because

traditional property-based rights inform the reasonable

expectation of privacy test. In 2012, Chief Justice Roberts

and Justices Kennedy, Thomas, and Sotomayor joined

4

Justice Scalia’s majority opinion in United States v. Jones,

which affirmed that the reasonable expectation of privacy

test is based in part on “concepts of real or personal

property law.” Id. at 407–08 (quoting Minnesota v. Carter,

525 U.S. 83, 88 (1998)). In 2013, Justices Kagan, Ginsburg,

and Sotomayor similarly identified the linkage and

overlap between the right against trespass on property

and the right to a reasonable expectation of privacy. See

Florida v. Jardines, 569 U.S. 1, 13 (2013) (Kagan, J.,

concurring). They observed that the two rights may align

in scope because “[t]he law of property ‘naturally enough

influence[s]’ our ‘shared social expectations’ of what places

should be free from governmental incursions.” Id. (quoting

Georgia v. Randolph, 547 U.S. 103, 111 (2006)).

II. A Constitutionally Significant Intrusion Occurs

at the Location of the Property, Regardless of the

Place from Which the Government Conducts the

Search or Seizure or the Means It Uses.

This Court has long understood that a constitutionally

significant intrusion occurs where property is located

when it is searched or seized, regardless of the location

from which the government conducts the search or

seizure or the means by which it does so. For example,

the Court concluded in 1961, in Silverman v. United

States, that police violated the Fourth Amendment when

they touched a heating duct serving the defendants’ home

with a “spike mike,” which allowed them to overhear the

defendants’ conversations from their observation post

in an adjacent house. 365 U.S. 505 (1961). 2 The Court

2. The “spike mike” was a microphone attached to a foot-long

spike, “together with an amplifier, a power pack, and earphones.”

5

found that the placement of the spike mike violated the

Fourth Amendment because it effected “an unauthorized

physical penetration into the premises occupied by the

[defendants].” Id. at 509. Even though the police themselves

were not on the defendants’ premises, and the spike mike

only “touched” the defendants’ heating duct, id., the

crucial fact to the Court was that the “officers overheard

the [defendants’] conversations only by usurping part of

the [defendants’] house or office,” id. at 511.

The Court’s recent decisions have reaffirmed that a

Fourth Amendment search or seizure can occur when the

Government gathers information from a place removed

from the target property’s location, and even when the

Government does not commit a physical trespass but

engages in conduct that amounts to the equivalent of a

trespass.

In Kyllo v. United States, for instance, the Court

concluded that the Government’s use of a “thermalimaging device” to “detect relative amounts of heat within

the home” was a search of the home notwithstanding the

fact that the search was conducted “from a public street.”

533 U.S. 27, 29 (2001). This data collection from a remote

location was a Fourth Amendment intrusion because

it revealed information about details of the defendant’s

Silverman, 365 U.S. at 506. The police inserted the spike under a

baseboard in a room of a vacant house adjoining the defendants’

premises and into a crevice in the “party wall” separating the

two properties, where the spike made contact with a heating duct

serving the defendants’ premises, “thus converting [defendants’]

entire heating system into a conductor of sound” and making the

defendants’ conversations “audible to the officers through the

earphones.” Id. at 506–07.

6

home that could not otherwise have been obtained without

physical trespass onto the property. Id. at 40.

Other recent decisions have involved physical

trespasses upon private property. In United States v.

Jones, this Court held that federal agents committed an

unconstitutional trespass by attaching a GPS monitoring

device to a person’s vehicle, and using that device to send

data to a government computer at a remote location. 565

U.S. at 403–04. The Court found that by attaching the GPS

device, the government had “physically occupied private

property for the purpose of obtaining information.” Id. at

404. It had “no doubt that such a physical intrusion would

have been considered a ‘search’ within the meaning of the

Fourth Amendment when it was adopted,” id. at 404–05

(citation omitted), even though the physical intrusion

was arguably trivial and the information the device

gathered was not disclosed to the Government until it

was electronically “relayed” to a remote “Government

computer,” id. at 403.

In Florida v. Jardines, the Court concluded that the

use of a trained police dog to detect odors emanating

from within a home was part of an unlawful search,

notwithstanding the fact that police officers have a general

right to approach the home by entering the curtilage. 569

U.S. 1, 8 (2013). The Court found it significant that the

“officers learned what they learned [about the interior

of the home] only by physically intruding on Jardines’

property to gather evidence” and concluded that this was

“enough to establish that a search occurred.” Id. at 11. The

property-based rationale for finding a Fourth Amendment

violation was so clear that the majority found no need to

“decide whether the officers’ investigation of Jardines’

home violated his expectation of privacy under Katz.” Id.

7

III. The Emails at Issue Here Are the Property of the

Email User.

Cou r t s have long recog n i z ed t hat for ms of

communication such as letters are the property of the

parties to the communication, who enjoy an expectation

of privacy in their contents even after the communications

are sent via the postal service or another third party. This

Court has confirmed that principle in a variety of settings,

beginning with one of its early decisions interpreting the

Fourth Amendment. See Ex parte Jackson, 96 U.S. 727,

732–33 (1877) (holding that letters and packages cannot be

opened and inspected while in transit via the U.S. Postal

Service, because “[l]etters and sealed packages . . . are as

fully guarded from examination and inspection, except as

to their outward form and weight, as if they were retained

by the parties forwarding them in their own domiciles”);

see also United States v. Jacobsen, 466 U.S. 109, 114 (1984)

(“Letters and other sealed packages are in the general

class of effects in which the public at large has a legitimate

expectation of privacy; warrantless searches of such

effects are presumptively unreasonable.”). In addition,

in the years following ratification of the Constitution,

courts recognized that the contents of private letters are

the property of the author under common law rules. See,

e.g., Woolsey v. Judd, 11 How. Pr. 49, 55 (N.Y. Super. Ct.

1855) (“[T]he publication of private letters, without the

consent of the writer, is an invasion of an exclusive right

of property, which remains in the writer, even when the

letters have been sent to, and are still in the possession

of his correspondent.”); see also Morgan Cloud, Property

is Privacy: Locke and Brandeis in the Twenty-First

Century, 55 A m. Crim. L. Rev. 37, 56–58 (2017).

8

This same principle applies to other forms of private

communication. Among the earliest Justices to recognize

this were two dissenters in Olmstead v. United States—

Justice Butler and Justice Brandeis. Justice Butler wrote

that telephone communications “belong to the parties

between whom they pass,” not the party that delivers or

stores the communications. Olmstead v. United States,

277 U.S. 438, 487 (1928) (Butler, J., dissenting). Similarly,

Justice Brandeis observed that there is, “in essence,

no difference between the sealed letter and the private

telephone message.” Id. at 475 (Brandeis, J., dissenting).

Nearly four decades later, a majority of this Court agreed

that oral communications that were recorded using a

“bugging” device placed in a suspect’s office were a form

of “property” that required a particularized warrant.

Berger v. New York, 388 U.S. 41, 58–59 (1967).

Lower courts and commentators have reached similar

conclusions with respect to newer forms of communication,

including emails. See, e.g., United States v. Ackerman, 831

F.3d 1292, 1304 (10th Cir. 2016) (Gorsuch, J.) (“No one in

this appeal disputes that an email is a ‘paper’ or ‘effect’ for

Fourth Amendment purposes, a form of communication

capable of storing all sorts of private and personal

details, from correspondence to images, video or audio

files, and so much more.”); United States v. Cotterman,

709 F.3d 952, 964 (9th Cir. 2013) (recognizing that digital

information is equivalent to “personal ‘papers’”); LeClair

v. Hart, 800 F.2d 692, 696 n.5 (7th Cir. 1986) (recognizing

that information is a form of property); see also Andrew

Guthrie Ferguson, The Internet of Things and the

Fourth Amendment of Effects, 104 Cal . L. Rev. 805

(2016) (arguing for an expansion of the understanding of

Fourth Amendment “effects” to include “smart objects”

9

and the communications that emanate from them); Lon A.

Berk, After Jones, The Deluge: The Fourth Amendment’s

Treatment of Information, Big Data, and the Cloud, 14

J. H. Tech. L. 1, 36 (2014) (“[I]t seems appropriate to

conclude that data is property protected by the Fourth

Amendment.”).

Extending the Fourth Amendment framework to

electronic communications and digital information is

consistent with common sense. This Court has recognized

that a person’s electronic communications transmit and

store sensitive information that the person would have

transmitted and stored on paper in previous eras. See,

e.g., Riley v. California, 134 S. Ct. 2473, 2491 (2014) (“A

phone not only contains in digital form many sensitive

records previously found in the home; it also contains a

broad array of private information never found in a home

in any form—unless the phone is.”).

Treating email communications stored with a service

provider as the property of the email user is fully

consistent with the “third-party doctrine.” That doctrine,

as enunciated by this Court in Smith v. Maryland and

United States v. Miller, holds that a person can lose

privacy interests in some information disclosed to a

third party. The leading cases, however, established

this doctrine for information that was not the property

of the individual defendant, but was the property of the

third party and was created to permit the third party to

perform its duties. See, e.g., Smith v. Maryland, 442 U.S.

735, 741 (1979) (“Since the pen register was installed on

telephone company property at the telephone company’s

central offices, petitioner obviously cannot claim that

his ‘property’ was invaded or that police intruded into a

10

‘constitutionally protected area.’”); id. at 741–42 (noting

that “pen registers do not acquire the contents of

communications” but only dialing information, which is

used by phone companies to complete calls, keep billing

records, detect fraud, and prevent violations of law);

United States v. Miller, 425 U.S. 435, 440 (1976) (“[T]he

documents subpoenaed here are not respondent’s ‘private

papers.’ Unlike the claimant in Boyd, respondent can

assert neither ownership nor possession. Instead, these

are the business records of the banks.”). In contrast, the

content of emails remains the property of the email user,

even when the emails are transmitted or stored by another

entity. The email user does not lose his property-based

privacy interest in the content of those emails, including

rights against the trespass that a government seizure or

search necessarily entails. Indeed, in Riley, this Court

unanimously rejected the Government’s argument that

the Fourth Amendment permitted law enforcement to

use a suspect’s cell phone to access data stored remotely

in the “cloud,” reasoning that this “would be like finding

a key in a suspect’s pocket and arguing that it allowed law

enforcement to unlock and search a house.” 134 S. Ct. at

2491. The “third-party doctrine” is, therefore, simply not

relevant to the property rights at stake here. 3

The emails at issue here are thus the property

of the individual email account holder; they are not

Microsoft’s property. That legal conclusion is bolstered

3. For similar reasons, the Government’s reliance (Gov’t Br.

at 14) on the Bank of Nova Scotia doctrine and cases like Matter

of Marc Rich & Co., A.G., 707 F.2d 663 (2d Cir. 1983), is misplaced.

Those cases and their progeny involve subpoenas for a company’s

own records, not for property belonging to another party. See

Marc Rich, 707 F.2d at 667.

11

by the contractual agreement between the individual

account holder and Microsoft. Microsoft’s Services

Agreement specifically addressed the ownership of email

communications. It states: “Who owns my Content that I

put on the Services?” “You do.” Reply Brief of Microsoft

Corporation at 27, Microsoft Corporation v. United States,

829 F.3d 197 (2d Cir. 2016) (No. 14-2985). Accordingly,

while the Government and Microsoft are the parties to this

dispute, it is an individual email account holder’s property

and privacy interests that are at stake.

IV. Emails Are Physically Encoded into the Storage

Medium, and Have a Physical Presence in the Place

Where They Are Stored.

Despite popular references to “the cloud” and

“cyberspace,” the reality is that emails and other

electronic communications have a physical existence.

These communications are not just theoretical constructs

floating in the ether; though transmitted and stored

in electronic media rather than on paper, they exist in

physical manifestations, and those manifestations have

physical loci. See Roderick O’Dorisio, “You’ve Got Mail!”

Decoding the Bits and Bytes of Fourth Amendment

Computer Searches After Ackerman, 94 Denv. L. Rev. 651,

671 (2017) (recognizing that electronic data is physically

encoded onto hard drives).4

4. See also United States v. Powers, 2010 U.S. Dist. LEXIS

34007, at *5 (D. Neb. Mar. 4, 2010) (“E-mail accounts physically

store e-mail messages and attachments on servers.”); In re United

States, 665 F. Supp. 2d 1210, 1213 (D. Or. 2009) (“All materials

stored online, whether they are e-mails or remotely stored

documents, are physically stored on servers owned by an ISP.”).

12

This Court recognized this reality in Yates v. United

States, 135 S. Ct. 1074 (2015). There, a plurality of the

Court observed that the term “tangible object” in 18

U.S.C. § 1519 includes data stored on an electronic storage

medium. Id. at 1086. And, concurring in the judgment,

Justice Alito specifically recognized that an “e-mail” is a

“tangible object.” Id. at 1089.

V. Execution of the Warrant Here Would Constitute

an Impermissible Extraterritorial Application of

the Stored Communications Act Since It Would

Intrude on Property in Ireland.

Because the emails sought by the Government here

are the property of the email user and those emails are

physically located in Ireland, enforcement of the warrant

in this case would necessarily constitute an impermissible

extraterritorial application of the SCA. The Government’s

position to the contrary suffers from two fatal defects.

First, the Government contends that this case

implicates only “abstract” privacy concerns with “no

obvious territorial locus” because privacy is merely “a

value or state of mind” which “lacks location.” (Gov’t Br. at

26–27 (quoting Judge Lynch, concurring in the judgement

below, and Judge Jacobs, dissenting in the judgement

below)). But, as demonstrated above, an email stored on

a server is private property that has a physical existence

and is stored in a physical location.

Second, by relying so heavily on jurisprudence

involving subpoenas for the business records of the

subpoenaed entity, and in arguing that a warrant issued

under the SCA is not a warrant at all but actually a

13

subpoena, the Government is essentially contending

that the emails at issue are the property of Microsoft,

not the email user. (Govt. Br. at 29–30, 32–39). That is

because subpoenas have traditionally only been used to

obtain the business records of the subpoenaed entity,

not property belonging to another person. 5 But the

Government’s position flies in the face of the long-standing

jurisprudence recognizing that private communications,

including emails, are the property of the parties to the

communications, and that any seizure or search of those

communications by the Government or an agent acting at

5. The Government suggests that subpoenas may be used

to force a caretaker to turn over property belonging to another

person, rather than a search warrant. See Gov’t Br. at 40. But it

cites only one district court case that has ever so held, United

States v. Barr, 605 F. Supp. 114 (S.D.N.Y. 1985). And even there,

the court reasoned that the seizure of property did not violate

the Fourth Amendment because the caretaker had voluntarily

complied with the subpoena. See id. at 119. The other two cases

cited by the Government do not bear the load the Government

places on them. In In re Grand Jury Subpoena Served Upon

Horowitz, the Second Circuit did not address the question, instead

focusing on issues of overbreadth, attorney-client privilege, and

the Fifth Amendment privilege against self-incrimination. See 482

F.2d 72, 75-83 (2d Cir. 1973). And this Court’s decision in Fisher

v. United States is totally inapposite. There, this Court held that

compelled production from an attorney of records created by

taxpayers’ accountants did not implicate the taxpayers’ Fifth

Amendment rights. The case did not require the attorneys to turn

over property of the taxpayer himself. See 425 U.S. 391, 414 (1976)

(“Whether the Fifth Amendment would shield the taxpayer from

producing his own tax records in his possession is a question not

involved here; for the papers demanded here are not his ‘private

papers.’”) (citation omitted); see also Christopher Slobogin,

Subpoenas and Privacy, 54 DePaul L. Rev. 805, 810–21 (2005)

(contrasting subpoenas for business and private papers).

14

the command of the Government necessarily implicates

the Fourth Amendment. For this reason, the email user’s

property-based privacy interest is infringed not only when

and where the property is disclosed to, or examined by,

the Government. That interest is also infringed when

someone, acting under Government compulsion or on

Government authority, seizes or searches the property.

The infringement occurs where the property is located

at the time of the seizure or search. In this case, that

location is Ireland, for that is where Microsoft, acting

on the Government’s command, would search for the

emails on its servers and seize them for transmittal to

the Government.

CONCLUSION

The Government makes this case appear to be more

complicated than it really is. It dissects the SCA and

contends that each of its closely interrelated provisions

actually has a different focus, and that the only relevant

focus for this case is on “disclosure.” It similarly dissects

the execution of a warrant and contends that the only

relevant action is the final step—the disclosure of the

communications to the Government in the United States,

not the actual searching for or seizing of them in Ireland.

But this case in fact is quite simple when viewed

from the perspective of the Court’s property-rights

jurisprudence. See Florida v. Jardines, 569 U.S. at 11

(“One virtue of the Fourth Amendment’s property-rights

baseline is that it keeps easy cases easy.”). Because the

emails sought by the Government are the property of

the email account holder, and those emails are physically

located in Ireland, any action by Microsoft to find

15

and retrieve those emails for the Government would

necessarily result in a trespass on property in Ireland.

Execution of the warrant would therefore constitute an

impermissible extraterritorial application of the SCA.

Accordingly, the Court should affirm the judgment of

the Second Circuit.

Respectfully Submitted,

Michael Vatis

Counsel of Record

Jeffrey A. Novack

Johanna Dennehy

Marcus A. Gadson

Steptoe & Johnson LLP

1114 Avenue of the Americas

New York, New York 10036

(212) 506-3900

mvatis@steptoe.com

Counsel for Amici Curiae

APPENDIX

1a

APPENDIXAppendix

— LIST OF AMICI

N.B. Institutional affiliations are for identification

purposes only.

Valena Beety is a Professor of Law at West Virginia

University College of Law.

Jordan “Jody” M. Blanke is the Ernest L. Baskin, Jr.

Distinguished Professor of Computer Science and

Law at Mercer University.

Robert M. Bloom is a Professor of Law at Boston College

Law School.

Jenny E. Carroll is the Wiggins, Childs, Quinn and

Pantazis Professor of Law at the University of

Alabama School of Law.

Kami Chavis is a Professor of Law, Associate Provost for

Academic Initiatives, and Director of the Criminal

Justice Program at Wake Forrest University School

of Law.

Morgan Cloud is the Charles Howard Candler Professor

of Law at Emory University School of Law.

Daniel T. Coyne is a Clinical Professor of Law at the

Illinois Institute of Technology/Chicago-Kent College

of Law.

Dr. William Cuddihy is an Adjunct Associate Professor

of History at Los Angeles City College.

2a

Appendix

Steven Duke is a Professor of Law at Yale Law School.

Norman M. Garland is a Professor of Law at Southwestern

Law School.

Catherine M. Grosso is an Associate Professor of Law at

Michigan State University College of Law.

M. Eve Hanan is an Associate Professor of Law at the

William S. Boyd School of Law, University of NevadaLas Vegas.

Janet C. Hoeffel is the Catherine D. Pierson Professor

of Law at Tulane University.

Andrew Horwitz is the Assistant Dean for Experiential

Education at the Roger Williams University School

of Law.

Justin Marceau is a Professor of Law at the University

of Denver-Sturm School of Law.

Michael Meltsner is the Matthews Distinguished

University Professor of Law at Northeastern

University.

Colin Miller is a Professor and Associate Dean for

Faculty Development at the University of South

Carolina School of Law.

Luke Milligan is a Professor of Law at the Louis D.

Brandeis School of Law, University of Louisville.

3a

Appendix

William P. Quigley is a Professor of Law at Loyola

University New Orleans.

Larry J. Ritchie is a Professor of Law at Roger Williams

University School of Law.

Amy D. Ronner is a Professor of Law at St. Thomas

University School of Law.

Christopher Slobogin is the Milton R. Underwood Chair

at Vanderbilt University Law School.

Mary Pat Treuthart is a Professor of Law at Gonzaga

University School of Law.