production has chosen to store the communications on a server located outside the United States.
Despite that hesitation, however, I conclude that my colleagues have ultimately reached the
correct result. If we frame the question as whether Congress has demonstrated a clear intention
to reach situations of this kind in enacting the Act, I think the better answer is that it has not,
especially in the case (which could well be this one) of records stored at the behest of a foreign
national on servers in his own country. The use of the word “warrant” may not compel the
conclusion that Congress intended to reach only domestically-stored communications that could
be reached by a conventional search warrant, because, for the reasons given above, that label
should not be controlling. Cf. Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n,
715 F.3d 631, 645–46 (7th Cir. 2013) (explaining that “we look to the substance of [the
government’s] inspection power rather than how the Act nominally refers to those powers,” and
holding that document requests under the Mine Safety and Health Act of 1977 should be treated
as administrative subpoenas rather than as a search or seizure). But it is hard to believe that
Congress would have used such a loaded term, and incorporated by reference the procedures
applicable to purely domestic warrants, if it had given any thought at all to potential
transnational applications of the statute. Nor is it likely that Congress contemplated such
applications for a single moment. The now-familiar idea of “cloud” storage of personal
electronic data by multinational companies was hardly foreseeable to Congress in 1986, and the
related prospects for diplomatic strife and implications for American businesses operating on an
international scale were surely not on the congressional radar screen when the Act was adopted.
We should not lightly assume that Congress chose to permit SCA warrants for communications
stored abroad when there is no sign that it considered the consequences of doing so. See Kiobel
16
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