effort to regulate behavior that – given the physical limitations of human bodies – can often be
fixed to a specific location, but with statutes that operate in more complex fashions. If SCA
warrants were traditional search warrants, permitting law enforcement agents to search a
premises and seize physical objects, the extraterritoriality question would be relatively easy: a
warrant authorizing a search of a building physically located in Ireland would plainly be an
extraterritorial application of the statute (and it would be virtually inconceivable under ordinary
notions of international law that Congress would ever attempt to authorize any such thing). But
as the government points out, this case differs from that classic scenario with respect to both the
nature of the legal instrument involved and the nature of the evidentiary material the government
seeks.
First, the “warrant” required for the government to obtain the emails sought in this case
does not appear to be a traditional search warrant. Significantly, the SCA does not describe the
warrant as a search warrant. Nor does it contain language implying (let alone saying outright)
that the warrant to which it refers authorizes government agents to go to the premises of a
service provider without prior notice to the provider, search those premises until they find the
computer, server or other device on which the sought communications reside, and seize that
device (or duplicate and “seize” the relevant data it contains).3 Rather, the statute expressly
3
I do note, however, that the particular warrant in this case states that the government
“requests the search of” a “PREMISES” and “COMMAND[S]” an officer to “execute” the
warrant on or before a certain date and time. J.A. 44. Neither party argues that this case turns on
the language in the warrant itself, and the government explains that this language was included
only because the warrant “was prepared using the generic template for search warrants.” Gov’t
Br. 20. Nevertheless, it is worth emphasizing that the government itself chose the “template” it
used to create the warrant it then asked the magistrate judge to sign. It is, to say the least,
unimaginative for the government to utilize a warrant form that purports to authorize conduct
that the statute under which it is obtained plainly does not permit, and then to turn around and
9
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