We emphasize further that under § 2703, any “court of competent
jurisdiction”―defined in § 2711(3)(B) to include “a court of general criminal jurisdiction
of a State authorized by the law of that State to issue search warrants”―may issue an
SCA warrant. Section 2703(a) refers directly to the use of State warrant procedures as
an adequate basis for issuance of an SCA warrant. 18 U.S.C. § 2703(a). We think it
particularly unlikely that, if Congress intended SCA warrants to apply extraterritorially,
it would provide for such far‐reaching state court authority without at least
“address[ing] the subject of conflicts with foreign laws and procedures.” Aramco, 499
U.S. at 256; see also American Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (describing
as beyond dispute the notion that “state power that touches on foreign relations must
yield to the National Government’s policy”).
The government asserts that “[n]othing in the SCA’s text, structure, purpose, or
legislative history indicates that compelled production of records is limited to those
stored domestically.” Gov’t Br. at 26 (formatting altered and emphasis added). It
emphasizes the requirement placed on a service provider to disclose customers’ data,
and the absence of any territorial reference restricting that obligation. We find this
argument unpersuasive: It stands the presumption against extraterritoriality on its
head. It further reads into the Act an extraterritorial awareness and intention that strike
us as anachronistic, and for which we see, and the government points to, no textual or
documentary support. 20
Seeking additional grounds for its position that to apply Morrison in this case is to proceed on
a false premise, the government argues that the presumption against extraterritoriality applies
only to “substantive provisions” of United States law, and that the SCA’s warrant provisions are
procedural. Gov’t Br. at 31. The proposition that the SCA’s protections are merely procedural
might reasonably be questioned. But even assuming that they are procedural, the government
gains no traction with this argument, which we rejected in Loginovskaya v. Batratchenko, 764 F.3d
266, 272‐73 (2d Cir. 2014).
20
24
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