the focus of such a provision is not on the place where the service provider stores the
communications, but on the place where the service provider discloses the information to the
government, as requested.6
The nature of the records demanded is also relevantly different from that of the physical
documents sought by traditional search warrants. Tangible documents, having a material
existence in the physical world, are stored in a particular physical location. Executing a
traditional search warrant requires a visit to that location, to visually inspect the documents to
select the responsive materials and to take those materials away. Even when tangible documents
are sought by subpoena, rather than by search warrant, it is arguable that the focus of the
“Email correspondance,” Microsoft explains, is unlike bank records because it “is personal, even
intimate,” and “can contain the sum of an individual’s private life.” Id. at 44 (internal quotation
marks omitted). Even assuming, however, that Microsoft accurately characterizes the cases it
seeks to distinguish, but cf. In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (partially upholding a
subpoena requiring an accountant to produce the contents of three locked file cabinets belonging
to a client), this privacy-based argument is, as explained above, a red herring. Microsoft does
not dispute that the government could have required the disclosure of the emails at issue here if
they were stored in the United States, and Microsoft’s decision to store them abroad does not
obviously entitle their owner to any higher degree of privacy protection.
6
As the government notes, the selection of the term “warrant” to describe an instrument
that does not operate like a traditional arrest or search warrant is easily explained by the fact that
the provision in question, which permits government access to a person’s stored communications
without notice to that person, provides the highest level of privacy protection in the statute: the
requirement that an independent judicial officer determine that probable cause exists to believe
that a crime has been committed and that evidence of that crime may be found in the
communications demanded. The showing necessary to obtain judicial authorization to require
the service provider to disclose the communications is that associated with traditional warrants;
the manner in which the disclosure is obtained by the government, however, is more closely
analogous to the workings of subpoenas and court-ordered discovery: the government serves the
service provider with an order from a court that requires the service provider to look within its
records and disclose the specified information to the government; it does not present to the
service provider a court order that permits government agents to search through the service
provider’s premises and documents and seize the specified information.
12
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