II.
Whether the SCA Authorizes Enforcement of the Warrant as to Customer
Content Stored in Ireland
A.
Analytic Framework
The parties stand far apart in the analytic frameworks that they present as
governing this case.
Adopting the government’s view, the magistrate judge denied Microsoft’s
motion to quash, resting on the legal conclusion that an SCA warrant is more akin to a
subpoena than a warrant, and that a properly served subpoena would compel
production of any material, including customer content, so long as it is stored at
premises “owned, maintained, controlled, or operated by Microsoft Corporation.” In re
Warrant, 15 F. Supp. 3d at 468 (quoting Warrant). The fact that those premises were
located abroad was, in the magistrate judge’s view, of no moment. Id. at 472.
Microsoft offers a different conception of the reach of an SCA warrant. It
understands such a warrant as more closely resembling a traditional warrant than a
subpoena. In its view, a warrant issued under the Act cannot be given effect as to
materials stored beyond United States borders, regardless of what may be retrieved
electronically from the United States and where the data would be reviewed. To
enforce the Warrant as the government proposes would effect an unlawful
extraterritorial application of the SCA, it asserts, and would work an unlawful intrusion
on the privacy of Microsoft’s customer.
Although electronic data may be more mobile, and may seem less concrete, than
many materials ordinarily subject to warrants, no party disputes that the electronic data
subject to this Warrant were in fact located in Ireland when the Warrant was served.
None disputes that Microsoft would have to collect the data from Ireland to provide it
to the government in the United States. As to the citizenship of the customer whose
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