service provider is located. Thus, the Committee’s hypothetical focuses on a situation
in which an investigator in Boston might seek e‐mail from “an Internet service provider
(ISP) account located in California.” To our reading, the Report presumes that the
service provider is located where the account is—within the United States.23
3.
Relevance of Law on “Subpoenas”
We reject the approach, urged by the government and endorsed by the District
Court, that would treat the SCA warrant as equivalent to a subpoena. The District
Court characterized an SCA warrant as a “hybrid” between a traditional warrant and a
subpoena because—generally unlike a warrant—it is executed by a service provider
rather than a government law enforcement agent, and because it does not require the
presence of an agent during its execution. Id. at 471; 18 U.S.C. § 2703(a)‐(c), (g). As
flagged earlier, the subpoena‐warrant distinction is significant here because, unlike
warrants, subpoenas may require the production of communications stored overseas.
15 F. Supp. 3d at 472 (citing Marc Rich, 707 F.2d at 667).
Warrants and subpoenas are, and have long been, distinct legal instruments.24
Section 2703 of the SCA recognizes this distinction and, unsurprisingly, uses the
Our brief discussion here of the law of warrants is offered in aid only of our interpretation of
the statutory language. Consequently, we do not consider whether the Fourth Amendment
might be understood to impose disclosure‐related procedural requirements more stringent than
those established by the SCA. See United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)
(finding Fourth Amendment protects certain electronic communications based on users’
reasonable expectations of privacy); see also Email Privacy Act, H. R. 699, 114th Cong. § 3
(passed by House Apr. 27, 2016) (requiring government to obtain warrant before obtaining
documents stored online).
24 A “subpoena” (from the Latin phrase meaning “under penalty,”) is “[a] writ or order
commanding a person to appear before a court or other tribunal, subject to a penalty for failing
to comply.” Subpoena, Black’s Law Dictionary. Relatedly, a “subpoena duces tecum” directs the
person served to bring with him “specified documents, records, or things.” Subpoena duces
23
28
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents