unless Congress clearly indicates to the contrary, we presume that statutes have only domestic
effect.
I have little trouble agreeing with my colleagues that the SCA does not have
extraterritorial effect. As the Supreme Court recently made clear in RJR Nabisco, the
presumption applies not only to statutes that straightforwardly regulate or criminalize conduct,
but also to jurisdictional, procedural and remedial statutes. Id. at *15–16; see also Loginovskaya
v. Batratchenko, 764 F.3d 266, 272 (2d Cir. 2014) (rejecting the argument that the presumption
“governs substantive (conduct-regulating) provisions rather than procedural provisions”).
Moreover, RJR Nabisco also reemphasized that the relevant question is not whether we think
Congress “would have wanted” the statute to apply extraterritorially had it foreseen the precise
situation before us, but whether it made clear its intention to give the statute extraterritorial
effect. RJR Nabisco, 2016 WL 3369423, at *7. There is no indication whatsoever in the text or
legislative history that Congress intended the Act to have application beyond our borders. It
would be quite surprising if it had. The statute was adopted in the early days of what is now the
internet, when Congress could hardly have foreseen that multinational companies providing
digital services of all sorts would one day store vast volumes of communications and other
materials for ordinary people and easily be able to move those materials across borders at
lightning speed. See Majority Op. at 14.
The tricky part, in a world of transnational transactions taking place in multiple
jurisdictions at once, is deciding whether a proposed application of a statute is domestic or
extraterritorial. That determination can be complicated even for criminal acts when they touch
on multiple jurisdictions, but the problem is particularly acute when we deal not with a simple
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