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In the Supreme Court of the United States No. 17-2 In the Supreme Court of the United States IN THE MATTER OF A WARRANT TO SEARCH A CERTAIN E-MAIL ACCOUNT CONTROLLED AND MAINTAINED BY MICROSOFT CORPORATION UNITED STATES OF AMERICA, PETITIONER v. MICROSOFT CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR A WRIT OF CERTIORARI JEFFREY B. WALL Acting Solicitor General Counsel of Record KENNETH A. BLANCO Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General ELAINE J. GOLDENBERG Assistant to the Solicitor General ROSS B. GOLDMAN Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTION PRESENTED Whether a United States provider of email services must comply with a probable-cause-based warrant is- sued under 18 U.S.C. 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad. (I) PARTIES TO THE PROCEEDING Petitioner is the United States of America, which was appellee in the court of appeals. Respondent is Microsoft Corporation, which was appellant in the court of appeals. (II) TABLE OF CONTENTS Page Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 2 Statutory provisions involved ....................................................... 2 Statement ......................................................................................... 2 Reasons for granting the petition ............................................... 12 A. The panel’s decision is wrong .......................................... 13 B. The panel’s decision conf licts with the framework of analysis in this Court’s extraterritoriality decisions and with lower-court decisions addressing a subpoena recipient’s duties ...................... 21 C. The panel’s decision gravely threatens public safety and national security ............................................. 26 Conclusion ...................................................................................... 33 Appendix A — Court of appeals opinion (July 14, 2016) ....... 1a Appendix B — Magistrate judge memorandum and order (Apr. 25, 2014) ............................................ 73a Appendix C — Excerpt from corrected hearing transcript (July 31, 2014) ......................... 99a Appendix D — District court order (Aug. 12, 2014) .......... 102a Appendix E — District court order (Sept. 8, 2014) ........... 103a Appendix F — Court of appeals order denying rehearing en banc (Jan. 24, 2017) ............................ 105a Appendix G — Statutory provisions .................................... 155a TABLE OF AUTHORITIES Cases: Braswell v. United States, 487 U.S. 99 (1988) ..................... 24 Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004) .................................................. 24 Henson v. Santander Consumer USA Inc., No. 16-349 (June 12, 2017) ................................................... 21 (III) IV Cases—Continued: Page Information Associated with One Yahoo Email Address That Is Stored at Premises Controlled by Yahoo, In re, No. 17-M-1234, 2017 WL 706307 (E.D. Wis. Feb. 21, 2017) ..................................................... 25 Marc Rich & Co. v. United States, 707 F.2d 663 (2d Cir.), cert. denied, 463 U.S. 1215 (1983) .................. 6, 23 Morrison v. National Austl. Bank Ltd., 561 U.S. 247 (2010) ....................................... 13, 14, 16, 21, 22 New Jersey v. City of New York, 283 U.S. 473 (1931) ........ 24 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016) .................................................. passim SEC v. Minas de Artemisa, S. A., 150 F.2d 215 (9th Cir. 1945) ........................................................................ 24 Sealed Case, In re, 832 F.2d 1268 (D.C. Cir. 1987) ............. 23 Search Warrant No. 16-960-M-01 to Google, In re, No. 16-960-M-01, 2017 WL 471564 (E.D. Pa. Feb. 3, 2017) ............................................. 25, 27, 30 Société Nationale Industrielle Aérospatiale v. United States Dist. Court, 482 U.S. 522 (1987) ................ 24 Soldal v. Cook Cnty., 506 U.S. 56 (1992) .............................. 20 Superintendent of Ins. of N.Y. v. Bankers Life & Cas. Co., 404 U.S. 6 (1971) ............................................. 14, 16 The Search of Content That Is Stored at Premises Controlled by Google, In re, No. 16-mc-80263, 2017 WL 1398279 (N.D. Cal. Apr. 19, 2017) ......................... 25, 28 The Search of Info. Associated with [Redacted]@Gmail.com That Is Stored at Premis- es Controlled by Google, Inc., In re, No. 16-mj-757 (D.D.C. June 2, 2017) ........................................................... 25 V Cases—Continued: Page The Search of Premises Located at [Redacted]@yahoo.com Stored at Premises Owned, Maintained, Controlled, or Operated by Yahoo, Inc., In re, No. 17-mj-1238 (M.D. Fla. Apr. 7, 2017) ....................................................... 25 United States v. Bank of Nova Scotia, 740 F.2d 817 (11th Cir. 1984), cert. denied, 469 U.S. 1106 (1985) ......... 23 Constitution, statutes, and regulations: U.S. Const. Amend. IV ....................................................... 8, 31 Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 .................................. 4, 19 § 201, 100 Stat. 1861 .......................................................... 15 Stored Communications Act, Pub. L. No. 99-508, Tit. II, § 201, 100 Stat. 1860 (18 U.S.C. 2701 et seq.) ... 4, 12 18 U.S.C. 2701-2712 ............................................................ 4 18 U.S.C. 2701 ...................................................... 7, 16, 155a 18 U.S.C. 2701(c)(1) ................................................. 17, 156a 18 U.S.C. 2702 ............................................................ 7, 156a 18 U.S.C. 2702(a) ..................................................... 16, 156a 18 U.S.C. 2702(b)(2) ................................................ 16, 157a 18 U.S.C. 2703 ................................................. passim, 160a 18 U.S.C. 2703(a) ....................................................... 4, 160a 18 U.S.C. 2703(a)-(c) ........................................... 4, 15, 160a 18 U.S.C. 2703(b) ....................................................... 4, 160a 18 U.S.C. 2703(b)(1) ................................................ 15, 160a 18 U.S.C. 2703(d) ................................................. 4, 15, 163a 18 U.S.C. 2703(e) ..................................................... 15, 164a 18 U.S.C. 2703(f ) ..................................................... 16, 164a 18 U.S.C. 2703(g) ........................................... 4, 16, 23, 164a 18 U.S.C. 2705 ...................................................................... 4 VI Statutes and regulations—Continued: Page 18 U.S.C. 2707 ...................................................................... 7 18 U.S.C. 2711(4) ..................................................... 14, 166a Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, Tit. II, § 212, 115 Stat. 284 .................................................................... 14, 15 18 U.S.C. 1962 .......................................................................... 21 18 U.S.C. 1964 .......................................................................... 21 Parliament and Council Regulation 2016/679, 2016 O.J. (L 119) (EU): Art. 46 ................................................................................. 33 Art. 48 ........................................................................... 32, 33 Art. 49 ................................................................................. 33 Miscellaneous: Orin Kerr, The Surprising Implications of the Microsoft/Ireland Warrant Case, Wash. Post, Nov. 29, 2016, https://www.washingtonpost.com/news/ volokh-conspiracy/wp/2016/11/29/the-surprising- implications-of-the-microsoftireland-warrant-case/ ........ 27 Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005) .................................. 18 Law Enforcement Access to Data Stored Across Borders: Facilitating Cooperation and Protecting Rights: Hearing Before the S. Subcomm. on Crime & Terrorism (May 24, 2017) (available at https://www.judiciary.senate.gov/meetings/law- enforcement-access-to-data-stored-across-borders- facilitating-cooperation-and-protecting-rights): Statement of Brad Wiegmann, Deputy Assistant Attorney General, DOJ .................................. 28, 29, 30 VII Miscellaneous—Continued: Page Written Statement of Christopher W. Kelly, Digital Evidence Laboratory Dir., Assistant Attorney General, Office of the Massachusetts Attorney General ........................................................ 29 Written Testimony of Brad Smith, President and Chief Legal Officer, Microsoft Corp. ................ 32 In the Supreme Court of the United States No. 17-2 IN THE MATTER OF A WARRANT TO SEARCH A CERTAIN E-MAIL ACCOUNT CONTROLLED AND MAINTAINED BY MICROSOFT CORPORATION UNITED STATES OF AMERICA, PETITIONER v. MICROSOFT CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Acting Solicitor
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