Taken as a whole, the legislative history tends to confirm our view that the focus
of the SCA’s warrant provisions is on protecting users’ privacy interests in stored
communications.
E.
Extraterritoriality of the Warrant
Having thus determined that the Act focuses on user privacy, we have little
trouble concluding that execution of the Warrant would constitute an unlawful
extraterritorial application of the Act. See Morrison, 561 U.S. at 266–67; RJR Nabisco, 579
U.S. at __, 2016 WL 3369423, at *9.
The information sought in this case is the content of the electronic
communications of a Microsoft customer. The content to be seized is stored in Dublin.
J.A. at 38. The record is silent regarding the citizenship and location of the customer.
Although the Act’s focus on the customer’s privacy might suggest that the customer’s
actual location or citizenship would be important to the extraterritoriality analysis, it is
our view that the invasion of the customer’s privacy takes place under the SCA where
the customer’s protected content is accessed—here, where it is seized by Microsoft,
acting as an agent of the government.27 Because the content subject to the Warrant is
located in, and would be seized from, the Dublin datacenter, the conduct that falls
within the focus of the SCA would occur outside the United States, regardless of the
customer’s location and regardless of Microsoft’s home in the United States.28 Cf. Riley
We thus disagree with the magistrate judge that all of the relevant conduct occurred in the
United States. See In re Warrant, 15 F. Supp. 3d at 475–76.
28
The concurring opinion suggests that the privacy interest that is the focus of the statute may
not be intrinsically related to the place where the private content is stored, and that an emphasis
on place is “suspect when the content consists of emails stored in the ‘cloud.’” Concurring Op.
at 14 n.7. But even messages stored in the “cloud” have a discernible physical location. Here,
27
39
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