compliance would conflict with their obligations under foreign law.26 But the Supreme
Court has held that bank depositors have no protectable privacy interests in a bank’s
records regarding their accounts. See United States v. Miller, 425 U.S. 435, 440–41 (1976)
(explaining that the records a bank creates from the transactions of its depositors are the
bank’s “business records” and not its depositors’ “private papers”). Thus, our 1968
decision in United States v. First National City Bank poses no bar to Microsoft’s argument.
There, we held that a bank subject to the jurisdiction of a federal court was not
absolutely entitled to withhold from a grand jury subpoena its banking records held in
Frankfurt, Germany “relating to any transaction in the name of (or for the benefit of)”
certain foreign customers solely because the bank faced the prospect of civil liability.
396 F.2d 897, 898, 901, 905 (2d Cir. 1968); cf. Linde v. Arab Bank, PLC, 706 F.3d 92, 101–02,
109 (2d Cir. 2013) (declining to issue writ of mandamus overturning district court’s
imposition of sanctions on foreign bank, when bank was civil defendant and refused to
comply with discovery orders seeking certain foreign banking records).
We therefore conclude that Congress did not intend the SCA’s warrant
provisions to apply extraterritorially.
D.
Discerning the “Focus” of the SCA
This conclusion does not resolve the merits of this appeal, however, because “it is
a rare case of prohibited extraterritorial application that lacks all contact with the
territory of the United States.” Morrison, 561 U.S. at 266. When we find that a law does
Thus, in addition to Marc Rich, the government refers us to other cases that it characterizes as
ordering production despite potential or certain conflict with the laws of other nations: In re
Grand Jury Proceedings (Bank of Nova Scotia), 740 F.2d 817, 826–29 (11th Cir. 1984); United States v.
Vetco Inc., 691 F.2d 1281, 1287–91 (9th Cir. 1981); In re Grand Jury Subpoena Dated August 9, 2000,
218 F. Supp. 2d 544, 547, 564 (S.D.N.Y. 2002) (Chin, J.); United States v. Chase Manhattan Bank,
N.A., 584 F. Supp. 1080, 1086–87 (S.D.N.Y. 1984). Gov’t Br. at 16–17.
26
32
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