From this statutory framework we find further reason to conclude that the SCA’s
focus lies primarily on the need to protect users’ privacy interests. The primary
obligations created by the SCA protect the electronic communications. Disclosure is
permitted only as an exception to those primary obligations and is subject to conditions
imposed in § 2703. Had the Act instead created, for example, a rebuttable presumption
of law enforcement access to content premised on a minimal showing of legitimate
interest, the government’s argument that the Act’s focus is on aiding law enforcement
and disclosure would be stronger. Cf. Morrison, 561 U.S. at 267. But this is not what the
Act does.
The SCA’s procedural provisions further support our conclusion that the Act
focuses on user privacy. As noted above, the SCA expressly adopts the procedures set
forth in the Federal Rules of Criminal Procedure. 18 U.S.C. § 2703(a), (b)(1)(A). Rule 41,
which governs the issuance of warrants, reflects the historical understanding of a
warrant as an instrument protective of the citizenry’s privacy. See Fed. R. Crim. P. 41.
Further, the Act provides criminal penalties for breaches of those privacy interests and
creates civil remedies for individuals aggrieved by a breach of their privacy that
violates the Act. See 18 U.S.C. §§ 2701, 2707. These all buttress our sense of the Act’s
focus.
We find unpersuasive the government’s argument, alluded to above, that the
SCA’s warrant provisions must be read to focus on “disclosure” rather than privacy
because the SCA permits the government to obtain by mere subpoena the content of
e‐mails that have been held in ECS storage for more than 180 days. Gov’t Br. at 28–29; see
18 U.S.C. § 2703(a). In this vein, the government submits that reading the SCA’s
warrant provisions to focus on the privacy of stored communications instead of
disclosure would anomalously place newer e‐mail content stored on foreign servers
“beyond the reach of the statute entirely,” while older e‐mail content stored on foreign
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