“warrant” requirement to signal (and to provide) a greater level of protection to priority
stored communications, and “subpoenas” to signal (and provide) a lesser level. 18
U.S.C. § 2703(a), (b)(1)(A). Section 2703 does not use the terms interchangeably. Id.
Nor does it use the word “hybrid” to describe an SCA warrant. Indeed, § 2703 places
priority stored communications entirely outside the reach of an SCA subpoena, absent
compliance with the notice provisions. Id. The term “subpoena,” therefore, stands
separately in the statute, as in ordinary usage, from the term “warrant.” We see no
reasonable basis in the statute from which to infer that Congress used “warrant” to
mean “subpoena.”
Furthermore, contrary to the Government’s assertion, the law of warrants has
long contemplated that a private party may be required to participate in the lawful
search or seizure of items belonging to the target of an investigation. When the
government compels a private party to assist it in conducting a search or seizure, the
private party becomes an agent of the government, and the Fourth Amendment’s
warrant clause applies in full force to the private party’s actions. See Coolidge v. New
Hampshire, 403 U.S. 443, 487 (1971); Gambino v. United States, 275 U.S. 310, 316–17 (1927);
see also Cassidy v. Chertoff, 471 F.3d 67, 74 (2d Cir. 2006). The SCA’s warrant provisions
fit comfortably within this scheme by requiring a warrant for the content of stored
communications even when the warrant commands a service provider, rather than a
law enforcement officer, to access the communications. 18 U.S.C. § 2703(a), (b)(1)(A),
(g). Use of this mechanism does not signal that, notwithstanding its use of the term
tecum, Black’s Law Dictionary. In contrast, a “warrant” is a “writ directing or authorizing
someone to do an act [such as] one directing a law enforcer to make . . . a search, or a seizure.”
Warrant, Black’s Law Dictionary. As to search warrants, the place is key: A search warrant is a
“written order authorizing a law‐enforcement officer to conduct a search of a specified place.”
Search Warrant, Black’s Law Dictionary.
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