Microsoft and the Government are Both Wrong

I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments. First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is somewhere between misleading and just plain wrong. And second, the SCA should be interpreted as mildly extending the warrant authority in Federal Rule of Criminal Procedure 41 rather than creating a new warrant authority out of thin air. Both of these points are directed towards the same goal: returning the case to a narrow and tractable question of statutory interpretation rather than a high-stakes clash of grand theories. Here are a few excerpts:

The first problem with this framing is that the Supreme Court’s distinction between domestic and extraterritorial laws is an impediment to understanding. The terms are just empty labels for the conclusion that particular conduct either had or lacked the appropriate connections to the United States. Territoriality arguments may be well-intentioned, but they have the effect of shutting down reasoned analysis by drowning out attempts to determine what the relevant connections actually are. In Internet cases, people with ties to different jurisdictions affect each other in complicated ways: reducing a complex spectrum of cases to a single factor like the location of one party or the location of a server is a recipe for disaster. When I realized that the Supreme Court had granted certiorari in an electronic evidence case that turned on extraterritoriality, I buried my head in my hands.

Congress did not write on a blank slate to create a new kind of “warrant.” Acting as though it did is why Microsoft and the DOJ can give such radically different interpretations of what a “section 2703 warrant” entails. If all you have to go on is traditional warrant practice and Rule 41 is just an example of one kind of warrant, then the problem is open-ended, it is possible to see almost anything in the inkblot, and one is naturally tempted to lean on conclusory canons like the broad-brush presumption against extraterritoriality. But if one reads section 2703(a) as written — incorporating Rule 41 and state warrant procedures except insofar as it allows any “court of competent jurisdiction” to issue one — then one faces a more straightforward problem of statutory interpretation.