For the reasons that follow, we think that Microsoft has the better of the
argument. When, in 1986, Congress passed the Stored Communications Act as part of
the broader Electronic Communications Privacy Act, its aim was to protect user privacy
in the context of new technology that required a user’s interaction with a service
provider. Neither explicitly nor implicitly does the statute envision the application of
its warrant provisions overseas. Three decades ago, international boundaries were not
so routinely crossed as they are today, when service providers rely on worldwide
networks of hardware to satisfy users’ 21st–century demands for access and speed and
their related, evolving expectations of privacy.
Rather, in keeping with the pressing needs of the day, Congress focused on
providing basic safeguards for the privacy of domestic users. Accordingly, we think it
employed the term “warrant” in the Act to require pre‐disclosure scrutiny of the
requested search and seizure by a neutral third party, and thereby to afford heightened
privacy protection in the United States. It did not abandon the instrument’s territorial
limitations and other constitutional requirements. The application of the Act that the
government proposes ― interpreting “warrant” to require a service provider to retrieve
material from beyond the borders of the United States ―would require us to disregard
the presumption against extraterritoriality that the Supreme Court re‐stated and
emphasized in Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010) and, just
recently, in RJR Nabisco, Inc. v. European Cmty., 579 U.S. __, 2016 WL 3369423 (June 20,
2016). We are not at liberty to do so.
We therefore decide that the District Court lacked authority to enforce the
Warrant against Microsoft. Because Microsoft has complied with the Warrant’s
domestic directives and resisted only its extraterritorial aspects, we REVERSE the
District Court’s denial of Microsoft’s motion to quash, VACATE its finding of civil
contempt, and REMAND the cause with instructions to the District Court to quash the
6
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