Over at the Volokh Conspiracy, Orin Kerr responds, point by point, to my disagreement with his take on the Microsoft warrant case. I thank Kerr for continuing the conversation, and make four points in response:
First, Kerr helpfully observes that I overstated my point when I said there would be “no authority to issue the kind of warrant at issue in the Microsoft case” without the Stored Communications Act (SCA). As Kerr notes, there were a number of pre-SCA cases in which courts issued Rule 41 warrants directing third parties to install pen registers, and the third parties did so without law enforcement officers being physically present. From this, Kerr draws the conclusion that the authority to engage in the kind of search Microsoft is being ordered to do derives solely from the Rule 41 warrant authority—and not from the SCA.
But if Kerr’s conclusion is right, the case is an easy one. Microsoft wins. After all, the government has already conceded, albeit in a different context, two key points: (i) Rule 41 warrants are territorially limited; and (ii) for purposes of Rule 41 warrants territoriality depends on the location of the data, not the location of the official that is searching the data. The issue came up in light of a proposed change to Rule 41 so as to permit courts to authorize remote searches of electronically stored data. In defending the now-pending rule change, the Department of Justice asserted the following:
In light of the presumption against international extraterritorial applications, and consistent with the existing language of Rule 41(b)(3), this amendment does not purport to authorize courts to issue warrant that authorize the search of electronic storage media located in a foreign country or countries. . . . [S]hould the media searched prove to be outside the United States, the warrant would have no extraterritorial effect.
The government’s position is clear. What matters for Rule 41 territoriality is the location of the stored media, not the location of the law enforcement officials carrying out the search. And presumably that position does not change simply because it is a third party, rather than a law enforcement agent, that is conducting the search. There is a good reason the government focuses on the “required disclosure” language of the SCA to support its claimed authority in the Microsoft case. Without the SCA, the government loses.
Second, Kerr takes me to task for leaving out the word “only” in my citation of 18 U.S.C. 2703(a). Whereas I had noted that the statute specifies that the government “may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication . . . pursuant to a warrant,” the statute, more fully quoted, specifies that the government “may require the disclosure . . . only pursuant to a warrant.” As Kerr points out, the use of the word “only” supports his claim—which I wholeheartedly agree with—that the statute operates as a limit on government authority. If the government wants content of certain kinds of stored communications, it needs a warrant; nothing else will do.
But while I agree that the statue operates as a limit, I think it also should be read as an implicit grant of authorization and an implicit requirement to comply. There is good reason that the government no longer turned to the All Writs Act as a basis for compelling third parties to search stored communications once the SCA was on the books; it had implicit authority elsewhere. Thus, the long-standing assumptions about how the SCA works—as reflected in both the Microsoft and government briefs—are the correct ones.
Third, Kerr suggests that, by focusing on Congress’s privacy goals, I have misconstrued the “focus of congressional concern” test that drives the territoriality determination. As he puts it, the test focuses on the specific things that Congress is regulating, not Congress’s general policy aims. I agree with Kerr on this point. But that does not make the broader policy goals irrelevant.
To the contrary, Congress’s privacy goals provide a context for both identifying and understanding the specific thing Congress was seeking to regulate: access to electronic communications. When one looks to the statute as a whole, the congressional focus on access to electronic communications becomes increasingly clear. Consider, for example, section 2701, which imposes criminal liability on those who unlawfully access electronically stored communications. As the 1986 Senate Report explains, the legislation responds to the “possible wrongful use [of stored electronic communications and public disclosure by law enforcement authorities as well as unauthorized private parties.” The Senate Report further warns that “[t]he providers of these services can do little under current law to resist unauthorized access.” The regulation of electronic communication providers—what Kerr says is the focus of congressional concern—is a means to the end. Just like the limitations put on government access, and just like the criminal penalties imposed on private parties.
To parrot the language Kerr quotes from the Supreme Court’s decision in Morrison v. National Australia Bank: It is the stored electronic communications that are the subject of the statute’s solicitude. And it is access to those communications that the statute seeks regulate.
Fourth, I continue to think that Kerr’s policy analysis is unduly one-sided (an issue I explore in much more depth in a post later today). I, too, have concerns about the policy implications of a Microsoft win. But I also have concerns about the policy implications of a government win—which are a lot more complex than simply the potential loss of business for U.S. companies. Moreover, it seems a bit strange for Kerr to warn of the substantial costs of data being beyond the reach of U.S. government’s lawful authority to compel (the result if Microsoft wins), yet then suggest in the next paragraph that companies could (in response to a government win) simply structure themselves differently to evade the U.S. government’s reach.
A big thank you to Kerr for provoking—and then continuing—the conversation. It will be interesting to see what the Second Circuit has to say.