the absence of guidance from Congress, but it is not likely to constitute the ideal balance of
conflicting policy goals. Nor is it likely that the ideal balance would allow the government free
rein to demand communications, wherever located, from any service provider, of whatever
nationality, relating to any customer, whatever his or her citizenship or residence, whenever it
can establish probable cause to believe that those communications contain evidence of a
violation of American criminal law, of whatever degree of seriousness. Courts interpreting
statutes that manifestly do not address these issues cannot easily create nuanced rules: the statute
either applies extraterritorially or it does not; the particular demand made by the government
either should or should not be characterized as extraterritorial. Our decision today is thus
ultimately the application of a default rule of statutory interpretation to a statute that does not
provide an explicit answer to the question before us. It does not purport to decide what the
answer should be, let alone to impose constitutional limitations on the range of solutions
Congress could consider.
Congress need not make an all-or-nothing choice. It is free to decide, for example, to set
different rules for access to communications stored abroad depending on the nationality of the
subscriber or of the corporate service provider. It could provide for access to such information
only on a more demanding showing than probable cause, or only (as with wiretapping) where
other means of investigation are inadequate, or only in connection with investigations into
extremely serious crimes rather than in every law enforcement context. Or it could adopt other,
more creative solutions that go beyond the possibilities evident to federal judges limited by their
own experience and by the information provided by litigants in a particular case.
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