v. California, 134 S. Ct. 2473, 2491 (2014) (noting privacy concern triggered by possibility
that search of arrestee’s cell phone may inadvertently access data stored on the “cloud,”
thus extending ��well beyond papers and effects in the physical proximity” of the
arrestee).
The magistrate judge suggested that the proposed execution of the Warrant is not
extraterritorial because “an SCA Warrant does not criminalize conduct taking place in a
foreign country; it does not involve the deployment of American law enforcement
personnel abroad; it does not require even the physical presence of service provider
employees at the location where data are stored. . . . [I]t places obligations only on the
service provider to act within the United States.” In re Warrant, 15 F. Supp. 3d at 475–
76. We disagree. First, his narrative affords inadequate weight to the facts that the data
is stored in Dublin, that Microsoft will necessarily interact with the Dublin datacenter in
order to retrieve the information for the government’s benefit, and that the data lies
within the jurisdiction of a foreign sovereign. Second, the magistrate judge’s
observations overlook the SCA’s formal recognition of the special role of the service
provider vis‐à‐vis the content that its customers entrust to it. In that respect, Microsoft
is unlike the defendant in Marc Rich and other subpoena recipients who are asked to
turn over records in which only they have a protectable privacy interest.
The government voices concerns that, as the magistrate judge found, preventing
SCA warrants from reaching data stored abroad would place a “substantial” burden on
the government and would “seriously impede[]” law enforcement efforts. Id. at 474.
we know that the relevant data is stored at a datacenter in Dublin, Ireland. In contrast, it is
possible that the identity, citizenship, and location of the user of an online communication
account could be unknown to the service provider, the government, and the official issuing the
warrant, even when the government can show probable cause that a particular account contains
evidence of a crime.
40
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