1.
Plain Meaning of the SCA
As observed above, the SCA permits the government to require service providers
to produce the contents of certain priority stored communications “only pursuant to a
warrant issued using the procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using State warrant procedures) by a
court of competent jurisdiction.” 18 U.S.C. § 2703(a), (b)(1)(a). The provisions in § 2703
that permit a service provider’s disclosure in response to a duly obtained warrant do
not mention any extraterritorial application, and the government points to no provision
that even implicitly alludes to any such application. No relevant definition provided by
either Title I or Title II of ECPA, see 18 U.S.C. §§ 2510, 2711, suggests that Congress
envisioned any extraterritorial use for the statute.
When Congress intends a law to apply extraterritorially, it gives an “affirmative
indication” of that intent. Morrison, 561 U.S. at 265. It did so, for example, in the
statutes at issue in Weiss v. National Westminster Bank PLC, 768 F.3d 202, 207 & n.5 (2d
Cir. 2014) (concluding that definition of “international terrorism” within 18 U.S.C.
§ 2331(1) covers extraterritorial conduct because Congress referred to acts that “occur
primarily outside the territorial jurisdiction of the United States”) and United States v.
Weingarten, 632 F.3d 60, 65 (2d Cir. 2011) (concluding that 18 U.S.C. § 2423(b) applies to
extraterritorial conduct because it criminalizes “travel in foreign commerce undertaken
with the intent to commit sexual acts with minors” that would violate United States law
had the acts occurred in the jurisdiction of the United States). We see no such indication
in the SCA.
application of the statute,” the government answered, “That’s right, Judge.” Id. at 1:25:38–
1:26:05.
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