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SUPREME COURT OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES )
Petitioner )
v ) No 17-2
MICROSOFT CORPORATION )
Respondent )
Pages 1 through 64
Place Washington DC
Date February 27 2018
HERITAGE REPORTING CORPORATION Official Reporters
1220 L Street NW Suite 206 Washington DC 20005
(202) 628-4888wwwhrccourtreporterscom
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1
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES )
Petitioner )
v ) No 17-2
MICROSOFT CORPORATION )
Respondent )
Washington DC
Tuesday February 27 2018
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 1021 am
APPEARANCES
MICHAEL R DREEBEN Deputy Solicitor General
Department of Justice Washington DC on
behalf of the Petitioner
E JOSHUA ROSENKRANZ ESQ New York New York on
behalf of the Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
MICHAEL R DREEBEN
On behalf of the Petitioner 3
ORAL ARGUMENT OF
E JOSHUA ROSENKRANZ ESQ
On behalf of the Respondent 32
REBUTTAL ARGUMENT OF
MICHAEL R DREEBEN
On behalf of the Petitioner 61
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P R O C E E D I N G S
(1021 am)
CHIEF JUSTICE ROBERTS Well hear
argument first this morning in Case 17-2
United States versus Microsoft Corporation
Mr Dreeben
ORAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN Mr Chief Justice and
may it please the Court
Section 2703 of the Stored
Communications Act focuses on classically
domestic conduct It requires disclosure in a
court order by the United States of information
related to United States crime and here by a
United States service provider
JUSTICE SOTOMAYOR It actually
requires a search Its -- the disclosure here
is really a substitute for the governments
searching The Act permits the government to
have a warrant and go in and search for these
materials or in the alternative to ask the
source to do its own search and then turn the
materials over
So why -- you describe it as if its
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only a disclosure but its really a search
MR DREEBEN So Justice Sotomayor
it -- its a hybrid instrument that has two
functions The first function operates
directly on the provider It requires a
provider to make disclosure of information
That is a function thats classically performed
by a subpoena or a discovery order It does
not authorize the government to go in sit down
at Microsofts facilities put hands on
keyboards -shy
JUSTICE SOTOMAYOR Well actually it
does If you read -- if you read the
provision its an -- an alternative for that
meaning the provision provides for a warrant
that presumably would let the government do
just that if it chose
MR DREEBEN So presumably not
because the statute actually says that the
government can get a warrant requiring
disclosure The act that -- that occurs in the
case is an act on the provider And the
fundamental distinction between a search and a
subpoena-type instrument is that in a search
the government does go right in and grab the
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
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collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
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committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
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conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
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1
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES )
Petitioner )
v ) No 17-2
MICROSOFT CORPORATION )
Respondent )
Washington DC
Tuesday February 27 2018
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 1021 am
APPEARANCES
MICHAEL R DREEBEN Deputy Solicitor General
Department of Justice Washington DC on
behalf of the Petitioner
E JOSHUA ROSENKRANZ ESQ New York New York on
behalf of the Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
MICHAEL R DREEBEN
On behalf of the Petitioner 3
ORAL ARGUMENT OF
E JOSHUA ROSENKRANZ ESQ
On behalf of the Respondent 32
REBUTTAL ARGUMENT OF
MICHAEL R DREEBEN
On behalf of the Petitioner 61
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P R O C E E D I N G S
(1021 am)
CHIEF JUSTICE ROBERTS Well hear
argument first this morning in Case 17-2
United States versus Microsoft Corporation
Mr Dreeben
ORAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN Mr Chief Justice and
may it please the Court
Section 2703 of the Stored
Communications Act focuses on classically
domestic conduct It requires disclosure in a
court order by the United States of information
related to United States crime and here by a
United States service provider
JUSTICE SOTOMAYOR It actually
requires a search Its -- the disclosure here
is really a substitute for the governments
searching The Act permits the government to
have a warrant and go in and search for these
materials or in the alternative to ask the
source to do its own search and then turn the
materials over
So why -- you describe it as if its
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only a disclosure but its really a search
MR DREEBEN So Justice Sotomayor
it -- its a hybrid instrument that has two
functions The first function operates
directly on the provider It requires a
provider to make disclosure of information
That is a function thats classically performed
by a subpoena or a discovery order It does
not authorize the government to go in sit down
at Microsofts facilities put hands on
keyboards -shy
JUSTICE SOTOMAYOR Well actually it
does If you read -- if you read the
provision its an -- an alternative for that
meaning the provision provides for a warrant
that presumably would let the government do
just that if it chose
MR DREEBEN So presumably not
because the statute actually says that the
government can get a warrant requiring
disclosure The act that -- that occurs in the
case is an act on the provider And the
fundamental distinction between a search and a
subpoena-type instrument is that in a search
the government does go right in and grab the
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
Heritage Reporting Corporation
65Official - Subject to Final Review
1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
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nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
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3 4622 4721 502 5118
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nowhere [1] 1121
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O object [1] 5210
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1918 2068 214 632
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3319 4025 423 6324
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odd [1] 4118
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Office [1] 1311
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Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
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only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
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operation [1] 85
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15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
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6 6213 6314
ordinary [3] 189 2016 227
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14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
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3517 3718 45416 4923
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434 4624 518
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2417 2914 344 4317 577 60
10 628 6324
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19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
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part [4] 122224 1611 5116
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Patriot [1] 6211
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6015
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Petitioner [6] 1420 2410 38 61
18
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20 521019
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23 432222 4714 501 525 591
7 6018 6121
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1521 341 353 4721 5523
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13
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privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
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377
procures [1] 299
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property [6] 2211 2518 4712 48
17 5718 5817
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protect [1] 521
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5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
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provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
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pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
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random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
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realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
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reference [1] 1115
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reflected [1] 816
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15 1918 2323
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related [1] 315
relates [1] 5317
Relations [1] 2718
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rely [1] 4216
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remarkable [1] 306
remote [1] 439
request [1] 6112
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require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
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suggest [1] 2720
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suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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C O N T E N T S
ORAL ARGUMENT OF PAGE
MICHAEL R DREEBEN
On behalf of the Petitioner 3
ORAL ARGUMENT OF
E JOSHUA ROSENKRANZ ESQ
On behalf of the Respondent 32
REBUTTAL ARGUMENT OF
MICHAEL R DREEBEN
On behalf of the Petitioner 61
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P R O C E E D I N G S
(1021 am)
CHIEF JUSTICE ROBERTS Well hear
argument first this morning in Case 17-2
United States versus Microsoft Corporation
Mr Dreeben
ORAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN Mr Chief Justice and
may it please the Court
Section 2703 of the Stored
Communications Act focuses on classically
domestic conduct It requires disclosure in a
court order by the United States of information
related to United States crime and here by a
United States service provider
JUSTICE SOTOMAYOR It actually
requires a search Its -- the disclosure here
is really a substitute for the governments
searching The Act permits the government to
have a warrant and go in and search for these
materials or in the alternative to ask the
source to do its own search and then turn the
materials over
So why -- you describe it as if its
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only a disclosure but its really a search
MR DREEBEN So Justice Sotomayor
it -- its a hybrid instrument that has two
functions The first function operates
directly on the provider It requires a
provider to make disclosure of information
That is a function thats classically performed
by a subpoena or a discovery order It does
not authorize the government to go in sit down
at Microsofts facilities put hands on
keyboards -shy
JUSTICE SOTOMAYOR Well actually it
does If you read -- if you read the
provision its an -- an alternative for that
meaning the provision provides for a warrant
that presumably would let the government do
just that if it chose
MR DREEBEN So presumably not
because the statute actually says that the
government can get a warrant requiring
disclosure The act that -- that occurs in the
case is an act on the provider And the
fundamental distinction between a search and a
subpoena-type instrument is that in a search
the government does go right in and grab the
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
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canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
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clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
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collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
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committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
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conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
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conflict [3] 13510 302
conflicts [3] 1211 137 2922
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Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
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Convention [1] 1414
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copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
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costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
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17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
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25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
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decide [1] 161
decided [1] 2315
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143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
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designed [1] 6212
detail [1] 4516
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device [2] 2223 515
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difference [2] 1723 3122
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difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
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distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
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e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
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either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
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enable [1] 2325
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21 5420 553 60611
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ensures [1] 207
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entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
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evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
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example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
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executed [2] 202 466
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exist [3] 64 1624 4410
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expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
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F fabric [1] 1611
face [1] 5411
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facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
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fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
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fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
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5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
Heritage Reporting Corporation Sheet 6 Redmond - territorially
19
71Official - Subject to Final Review
test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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P R O C E E D I N G S
(1021 am)
CHIEF JUSTICE ROBERTS Well hear
argument first this morning in Case 17-2
United States versus Microsoft Corporation
Mr Dreeben
ORAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN Mr Chief Justice and
may it please the Court
Section 2703 of the Stored
Communications Act focuses on classically
domestic conduct It requires disclosure in a
court order by the United States of information
related to United States crime and here by a
United States service provider
JUSTICE SOTOMAYOR It actually
requires a search Its -- the disclosure here
is really a substitute for the governments
searching The Act permits the government to
have a warrant and go in and search for these
materials or in the alternative to ask the
source to do its own search and then turn the
materials over
So why -- you describe it as if its
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only a disclosure but its really a search
MR DREEBEN So Justice Sotomayor
it -- its a hybrid instrument that has two
functions The first function operates
directly on the provider It requires a
provider to make disclosure of information
That is a function thats classically performed
by a subpoena or a discovery order It does
not authorize the government to go in sit down
at Microsofts facilities put hands on
keyboards -shy
JUSTICE SOTOMAYOR Well actually it
does If you read -- if you read the
provision its an -- an alternative for that
meaning the provision provides for a warrant
that presumably would let the government do
just that if it chose
MR DREEBEN So presumably not
because the statute actually says that the
government can get a warrant requiring
disclosure The act that -- that occurs in the
case is an act on the provider And the
fundamental distinction between a search and a
subpoena-type instrument is that in a search
the government does go right in and grab the
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
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582
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Restatement [1] 2718
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22
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20 539
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375 3820
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24 1110 1218 133 1418 1510
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432
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522 5419 5925 632
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1824 1919 2125 2231323 34
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though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
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truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
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Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
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whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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only a disclosure but its really a search
MR DREEBEN So Justice Sotomayor
it -- its a hybrid instrument that has two
functions The first function operates
directly on the provider It requires a
provider to make disclosure of information
That is a function thats classically performed
by a subpoena or a discovery order It does
not authorize the government to go in sit down
at Microsofts facilities put hands on
keyboards -shy
JUSTICE SOTOMAYOR Well actually it
does If you read -- if you read the
provision its an -- an alternative for that
meaning the provision provides for a warrant
that presumably would let the government do
just that if it chose
MR DREEBEN So presumably not
because the statute actually says that the
government can get a warrant requiring
disclosure The act that -- that occurs in the
case is an act on the provider And the
fundamental distinction between a search and a
subpoena-type instrument is that in a search
the government does go right in and grab the
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
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20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
Heritage Reporting Corporation Sheet 7 test - zeros
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information
In a subpoena context the instrument
operates on a person and it places an
obligation on that person to make disclosure
Once it gets to the government once the
government has the account in hand it executes
the warrant aspect of the order which is a
probable-cause-based order allowing the
government to search the account
So its essentially analogous to if
the government knew that an individual had a
laptop computer and it wanted to obtain that
computer and search it it could serve a
subpoena on the individual requiring the
production of the laptop
Once the government gets the laptop
into its custody it needs a search warrant to
get in and look at the information And here a
single order achieves both functions under a
statute whose structure and language makes
clear that it places disclosure obligations on
a provider and it then authorizes the
government to conduct the search
JUSTICE SOTOMAYOR Mr Dreeben -shy
JUSTICE GINSBURG Mr Dreeben may I
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
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bit [2] 2214 267
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35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
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41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
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405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
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A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
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25 1120 1213 3123 4923
absolutely [2] 275 4211
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away [1] 2413
B C
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analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
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canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
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categories [2] 2221 638
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4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
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CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
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circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
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CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
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14 306 4712
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Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
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4224
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17 29320 31513 472 6322
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Congress [34] 691623 76 1125
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Convention [1] 1414
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511013
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counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
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16 372 608
counts [1] 3124
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25 2025 2157 23618 26217
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6
customers [1] 2025
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49691116 5015
Cybercrime [1] 146
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data [5] 1616 2818 357 3624 60
25
dating [1] 77
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143 1517 2913 401415 4112
5117
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Department [5] 119 131112 14
25 151
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20
digital [2] 3224 4314
directly [3] 45 3418 446
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1519 621624
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15
disclosing [1] 6312
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421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
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2324
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546
dollar [1] 494
domain [1] 5125
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17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
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2124 18221 2120 227 2318
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279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
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e-mails [22] 822 3514 3619 41
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2223 55616
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1315
Everybody [1] 3921
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1 5924 6010
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1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
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16 1712 191323 274 331822
3624 433
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February [1] 111
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13 58522
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156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
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53171319 55518 635
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5524
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142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
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Fourth [1] 5425
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Francis [5] 5721616 581515
Franciss [1] 589
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G gain [1] 4911
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General [1] 118
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getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
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Gmail [1] 3723
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Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
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17 5720
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government [68] 320 491620
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11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
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172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
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great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
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H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
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hand [1] 56
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happen [9] 82021 117 44479
13 4878
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14 4389 441121 4518 4912
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hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
Heritage Reporting Corporation Sheet 6 Redmond - territorially
19
71Official - Subject to Final Review
test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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ask you a broader question I think the
starting point all would agree in what was it
1986 no one ever heard of clouds This kind
of storage didnt exist
And there are good arguments that can
be made either way but a court can say either
you are right all right or the other side is
all right and theres nothing nuanced about
it If Congress takes a look at this
realizing that much time and -- and innovation
has occurred since 1986 it can write a statute
that takes account of various interests And
it isnt just all or nothing
So wouldnt it be wiser just to say
lets leave things as they are if -- if
Congress wants to regulate in this brave new
world it should do it
MR DREEBEN Well Justice Ginsburg
a couple of responses First I agree that the
Court is construing a statute passed in 1986
and then amended subsequently And we think
the Court should leave things as they are with
the instrument that Congress authorized
operating on a person and requiring that
person to produce information regardless of
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
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backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
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bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
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agreeing [1] 291
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box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
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60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
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A alternative [2] 322 414
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23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
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25 1120 1213 3123 4923
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B C
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analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
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canons [1] 158
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Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
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4016 4522
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597 606
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CHIEF [16] 339 321015 3324
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565 6114 6317 641
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Circuits [2] 1517 2321
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8
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492 534 5428 55111219 567
1217
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4224
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511013
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2
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1 4220 6012
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6
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49691116 5015
Cybercrime [1] 146
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25
dating [1] 77
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143 1517 2913 401415 4112
5117
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Department [5] 119 131112 14
25 151
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1519 621624
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1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
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disk [3] 45202125
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2324
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546
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17 91278 101824 214516
3120
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down [3] 49 2019 4821
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DREEBEN [71] 118 239 3679
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2124 18221 2120 227 2318
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47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
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E e-mail [7] 359 3715 4521 4821
492 503 5112
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e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
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2223 55616
earlier [3] 4323 551013
easy [1] 594
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either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
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enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
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suggest [1] 2720
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suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
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Heritage Reporting Corporation Sheet 6 Redmond - territorially
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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whether its stored overseas
Microsoft here made a unilateral
decision to move information overseas Nothing
in the law requires it Nothing in the law
prohibits it
What Congress did was act against a
backdrop of law dating back to this Courts
Societe Internationale versus Rogers decision
in 1958 and running through the Aerospatiale
decision in 1987 under which the basic rule of
both domestic and international law is that
when a court has personal jurisdiction over an
individual before the court and issues an order
requiring disclosure of information that
person must comply with the order regardless of
where it has chosen to store the information
over which it has control
JUSTICE KENNEDY In that sense is it
-- is it correct to say that the parties agree
that the Act does not have extraterritorial
application
MR DREEBEN Yes Justice Kennedy
JUSTICE KENNEDY And is that just a
concession you make for purposes of this case
or do you read the statute that way
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
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cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
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changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
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chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
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citizen [1] 3616
citizens [1] 206
claiming [1] 6223
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clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
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14 306 4712
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communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
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complete [1] 6316
compliance [1] 144
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4224
complying [1] 336
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computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
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condition [1] 3919
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91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
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conflict [3] 13510 302
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confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
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contents [1] 339
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Convention [1] 1414
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copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
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seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
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sell [1] 321
senators [1] 129
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sentence [1] 6316
seriously [1] 4814
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server [1] 4814
servers [1] 463
serves [1] 4919
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3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
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side [2] 67 504
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signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
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source [1] 323
Southern [2] 573 5810
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sovereignty [2] 3424 6025
special [1] 277
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specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
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suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
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SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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MR DREEBEN We read it against the
backdrop of this Courts decision in Morrison
and RJR which provide that unless the statute
clearly has extraterritorial application in its
text structure or operation it has none
And were not here arguing that this
application is extraterritorial and
permissible What were saying is that it has
always been the rule from decisions in this
Court and decisions in the lower court in a
basically unbroken line that when a party is
before a US court and a court issues an order
to that party that says produce information
thats domestic conduct
Its viewed as domestic conduct not
only in United States law reflected in this
Courts decisions its viewed as domestic
conduct in international law
JUSTICE GINSBURG But something has
to happen abroad I mean there are computers
in Ireland and something has to happen to those
computers in order to get these e-mails back to
the United States
MR DREEBEN Yes And this Court has
a test for determining whether an application
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
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they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
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15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
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pushed [2] 4678
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5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
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25
quo [2] 1214 1417
R radical [1] 2816
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8 5924 6014
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3
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9 4810 5224 5323
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REBUTTAL [3] 28 329 6117
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20 567
Redmond [10] 343 4513 46816
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20 4712 59151622
reference [1] 1115
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15 1918 2323
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requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
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Respondent [4] 1722 27 3214
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rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
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RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
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S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
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scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
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10142020 24716 2625 6113
6214
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seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
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see [5] 242223 2811 402 5120
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seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
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sell [1] 321
senators [1] 129
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sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
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serves [1] 4919
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3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
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side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
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spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
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study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
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successfully [1] 305
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suit [1] 4718
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supported [1] 1425
Suppose [1] 1021
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SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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of a statute that has some domestic conduct and
some foreign conduct is domestic or
extraterritorial
And as Justice Alito put it for the
Court in the RJR opinion one has to look at
the focus of the statute If the focus of the
statute has domestic conduct in view then it
is a domestic application of the statute
either if -- even if other conduct must occur
abroad
JUSTICE GORSUCH Mr Dreeben why
would that be the case using the focus test
that we wouldnt take cognizance of the fact
that the information must be collected abroad
and transmitted from abroad to the United
States before it could then be disclosed I
mean theres a chain of activity thats
required here
MR DREEBEN There -shy
JUSTICE GORSUCH Why should we
divorce the first half from the second
MR DREEBEN Because I think the way
that the Court has approached this Justice
Gorsuch is to look at the language of the
statute and the actual text and try to identify
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
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13
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232
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2114
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2125 399 4915 5721
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Procedure [5] 1810 25813 483
586
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585
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377
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17 5718 5817
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5618
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5425
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437
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4 237 255 3510 362123 3720
383 5424
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15 6319
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581
provisions [5] 533618 559 63
10
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5520
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4819
Q question [25] 61 1112 1222 14
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18 6214
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25
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8 5924 6014
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9 4810 5224 5323
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20 4712 59151622
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582
requiring [6] 420 514 624 714
4612 637
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Respondent [4] 1722 27 3214
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Restatement [1] 2718
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RJR [2] 83 95
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1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
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ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
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22 4141722 421811 432 448
151923 451218 461721 473
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22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
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2015 228 2619 577 581122
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run [1] 1316
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S safe [1] 5516
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same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
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20 5445 559
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11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
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scientists [1] 4515
scrambles [2] 5123
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9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
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10142020 24716 2625 6113
6214
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Section [6] 311 1413 5311 63
111315
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22
seize [3] 2517 451 5718
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3510 3621 3719 383 48513
22 49717 5212 5424
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sheriffs [1] 608
short [1] 4825
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shots [1] 5417
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20 539
showing [1] 197
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side [2] 67 504
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signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
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Solicitor [1] 118
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sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
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source [1] 323
Southern [2] 573 5810
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start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
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STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
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83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
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step [2] 2018 3518
still [1] 5319
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25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
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strong [1] 5523
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submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
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Suppose [1] 1021
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SUPREME [2] 1114
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Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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from that text what is the focus of the
statute
JUSTICE GORSUCH I understand that
and disclosure -- I understand your argument
MR DREEBEN Yes
JUSTICE GORSUCH But in order to
disclose it anticipates necessarily certain
antecedent conduct
MR DREEBEN Yes it does but -shy
JUSTICE GORSUCH And youd ask us to
ignore that I think Is that -- is that your
position
MR DREEBEN Well I think this
Courts case law provides a test that says that
if the activity thats within the focus of the
statute occurs in the United States the fact
that there may be antecedent or other conduct
abroad doesnt detract from a domestic
application
And I have an example that I think
will help illustrate that point Suppose that
a defendant in federal court were convicted and
ordered to pay a fine and the defendant said I
cant do that with my domestic assets Theyre
all located abroad
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
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Patriot [1] 6211
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pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
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perhaps [2] 2810 442
permissible [1] 88
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person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
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20 521019
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23 432222 4714 501 525 591
7 6018 6121
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police [2] 6079
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1521 341 353 4721 5523
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13
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privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
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Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
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377
procures [1] 299
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17 5718 5817
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5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
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1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
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21 2023 2217 232324 24917
3117 367 5212 6020 638
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15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
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pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
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25
quo [2] 1214 1417
R radical [1] 2816
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random [1] 4818
ratcheted [1] 196
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reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
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really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
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REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
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reference [1] 1115
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15 1918 2323
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Relations [1] 2718
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remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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I am fairly confident that the courts
would say the obligation falls on you How you
raise the money is your concern Its not an
extraterritorial application of the statute to
say bring the money home and pay the fine
And thats the same that were asking
to happen with the warrant In fact the text
of the statute says nothing about
extraterritorial conduct
JUSTICE SOTOMAYOR Mr Dreeben I
dont know that you fairly answered Justice
Ginsburgs question
This is a 1986 statute The reality
in 1986 if you look at the statute and its
reference to stored records to stored
communications was -- its a past technology
old concept But I think its fair to say that
back then they were thinking that where these
materials were stored had a geographic
existence in the United States not abroad or
nowhere else and that they were protecting the
communications that were stored in particular
locations
Things have changed But what youre
asking us to do is to imagine what Congress
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
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person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
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20 521019
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23 432222 4714 501 525 591
7 6018 6121
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1521 341 353 4721 5523
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13
possibly [1] 4918
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232
private [2] 3222 4113
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probable-cause-based [2] 58
2114
probably [2] 1224 5025
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2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
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377
procures [1] 299
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property [6] 2211 2518 4712 48
17 5718 5817
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protect [1] 521
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5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
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protocols [1] 4522
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1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
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15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
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pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
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25
quo [2] 1214 1417
R radical [1] 2816
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random [1] 4818
ratcheted [1] 196
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reach [8] 314 3221 4181012 51
8 5924 6014
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3
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9 4810 5224 5323
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REBUTTAL [3] 28 329 6117
recipient [1] 208
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record [5] 276 371213 389 571
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20 567
Redmond [10] 343 4513 46816
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20 4712 59151622
reference [1] 1115
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15 1918 2323
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Relations [1] 2718
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request [1] 6112
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require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
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rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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would have done or intended in a totally
different situation today And the problem
that Justice Ginsburg alludes to is the fact
that by doing so we are trenching on the very
thing that our extraterritoriality doesnt want
to do what our jurisprudence doesnt want to
do which is to create international problems
Now I understand theres a bill thats
being proposed by bipartisan senators that
would give you most of what you want but with
great protections against foreign conflicts
There are limitations involving records that
are stored abroad
Why shouldnt we leave the status quo
as it is and let Congress pass a bill in this
new age -shy
MR DREEBEN So the -shy
JUSTICE SOTOMAYOR -- that addresses
the potential problems that your reading would
create
MR DREEBEN So Ive got to start
with the last part of your question and then
come back to the first because otherwise Ill
probably forget what the last part is
There is not an international problem
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
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232
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2114
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2646 2713 291820 3044 38
2125 399 4915 5721
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Procedure [5] 1810 25813 483
586
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585
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377
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17 5718 5817
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5618
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5425
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437
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4 237 255 3510 362123 3720
383 5424
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3117 367 5212 6020 638
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15 6319
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581
provisions [5] 533618 559 63
10
public [1] 4920
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5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
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18 6214
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25
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8 5924 6014
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3
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9 4810 5224 5323
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582
requiring [6] 420 514 624 714
4612 637
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Respondent [4] 1722 27 3214
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rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
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RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
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Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
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22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
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2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
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S safe [1] 5516
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same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
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11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
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scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
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10142020 24716 2625 6113
6214
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Section [6] 311 1413 5311 63
111315
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see [5] 242223 2811 402 5120
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seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
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senators [1] 129
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serves [1] 4919
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3510 3621 3719 383 48513
22 49717 5212 5424
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shared [1] 5424
sheriffs [1] 608
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shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
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side [2] 67 504
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signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
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sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
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somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
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source [1] 323
Southern [2] 573 5810
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split [2] 151111
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stage [1] 298
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start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
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81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
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83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
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strong [1] 5523
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submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
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Suppose [1] 1021
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SUPREME [2] 1114
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Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
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technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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here This is largely a mirage that Microsoft
is seeking to create For the 20 or so -shy
JUSTICE SOTOMAYOR You mean all those
amici who have written complaining about how
this would conflict with so much foreign law
Weve got a bunch of amici briefs telling us
how much this conflicts
MR DREEBEN No foreign government
has come to this Court saying that the order
that we seek would conflict with its law The
State Department and the Office of
International Affairs in the Justice Department
have heard no complaints from foreign
governments about the way that we have
typically operated under 2703 for decades
In fact the complaints all run the
other way The complaints are that when
foreign governments need information from US
providers they come here under a Mutual Legal
Assistance Treaty an MLAT and they depend on
the United States pursuant to a statute to go
into court invoke 35 -- 2703 and seek the
information from the provider wherever it may
be located
And the Microsoft decision has caused
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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United States
MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
conceptual [1] 3916
concern [1] 113
concerned [3] 371213 5423
concerns [1] 172
concession [1] 724
concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
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582
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4612 637
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Respondent [4] 1722 27 3214
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1120
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2015 228 2619 577 581122
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3121 339 421419 5123 6222
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20 5445 559
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1415 63211
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5717 5816 6322
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6214
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Section [6] 311 1413 5311 63
111315
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22
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22 49717 5212 5424
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20 539
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situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
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Solicitor [1] 118
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sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
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Southern [2] 573 5810
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start [5] 1221 1512 3217 3317
432
started [1] 3218
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204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
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83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
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7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
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361 371 43341124 4624 505
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1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
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2218 2925
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Swiss [1] 2917
Switzerland [1] 2916
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T tail [1] 4811
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14
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text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
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14 4722 4810 491721 522 54
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thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
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though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
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truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
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whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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grave interference with our ability to help our
foreign law enforcement partners enforce their
own laws It is -- the Microsoft decision also
puts us out of compliance with our
international obligations
The Budapest Cybercrime Treaty which
is joined by over 50 nations including most of
the European nations requires courts in -- in
particular jurisdictions to have the authority
to require providers to furnish information in
response to court requests regardless of where
the information is stored
Thats Section 181a of the Budapest
Convention So the international baseline here
is exactly what the government is arguing for
and we are the ones who are really urging the
status quo
JUSTICE SOTOMAYOR Lets assume
because theres been a lot of back and forth
and I -- I tend to disagree theres an open
question on the Budapest Treaty but putting
that disagreement aside assuming the point
Ive made there is a bill Can you tell me
where it is in the legislative process Its
bipartisan Its supported by the Department
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
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2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
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2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
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bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
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agreeing [1] 291
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asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
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23
authorization [1] 1811
Budapest [3] 1461321
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25 1120 1213 3123 4923
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B C
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angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
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66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
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cases [3] 161 2411 3721
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4016 4522
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597 606
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CHIEF [16] 339 321015 3324
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circuit [10] 15101116 231115
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Circuits [2] 1517 2321
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8
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1217
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4224
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511013
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2
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1 4220 6012
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6
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25
dating [1] 77
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143 1517 2913 401415 4112
5117
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decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
Heritage Reporting Corporation Sheet 2 canons - e-mail
67Official - Subject to Final Review
e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
enforce [2] 142 1519
enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
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Section [6] 311 1413 5311 63
111315
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432
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522 5419 5925 632
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1824 1919 2125 2231323 34
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5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
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of State and the Department of Justice
It does deal with certain rights and
limitations to the access to this information
when its stored in foreign locations Why
shouldnt we wait for that bill
MR DREEBEN Well first of all this
Courts duty is to interpret the statute under
its own statutory interpretation canons I
dont think that any -shy
JUSTICE SOTOMAYOR Theres no circuit
split We granted cert before a circuit split
which is an unusual act to start with
MR DREEBEN Well there are a couple
of reasons for that No other court that has
issued a written opinion since Microsoft has
agreed with the Second Circuit And the Second
Circuits decision has caused grave and
immediate harm to the governments ability to
enforce federal criminal law
But as to the question about the CLOUD
Act as its called it has been introduced
Its not been marked up by any committee It
has not been voted on by any committee And it
certainly has not yet been enacted into law
And I think this Courts normal
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
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canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
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cell [1] 5025
cert [1] 1511
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4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
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changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
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circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
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claiming [1] 6223
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clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
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14 306 4712
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Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
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4224
complying [1] 336
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computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
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91279 10817 119 22312 27
17 29320 31513 472 6322
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Congress [34] 691623 76 1125
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406815 531025 5461923 55
11420 60516 61237
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Convention [1] 1414
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CORPORATION [2] 16 35
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511013
correlate [1] 194
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counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
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COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
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716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
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17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
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6
customers [1] 2025
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49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
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decided [1] 2315
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143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
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definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
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difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
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district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
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17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
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47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
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e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
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either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
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21 5420 553 60611
engage [2] 4712 6011
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enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
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executed [2] 202 466
executes [1] 56
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exist [3] 64 1624 4410
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expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
Heritage Reporting Corporation Sheet 3 e-mails - information
68Official - Subject to Final Review
141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
Heritage Reporting Corporation Sheet 6 Redmond - territorially
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test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
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practice is to decide cases before it based on
the law as it exists rather than waiting for
an uncertain legislative process
And as to the -shy
JUSTICE KAGAN Mr Dreeben -shy
MR DREEBEN If I can just make one
final point on this
JUSTICE KAGAN Please
MR DREEBEN As to the bill itself
it does not retrench on the authority that the
government says is part of the legal fabric
here today It actually endorses in an
unqualified manner the governments ability to
get information from a provider over whom it
has jurisdiction regardless of the location of
the data
It goes on to provide very useful
mechanisms for bilateral cooperation that will
facilitate other nations ability to get
information from our providers and our ability
to get information from their providers with
safeguards
But those are supplementary
protections that do not exist apart from the
fundamental 2703 obligation which I would
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add does have built-in protections to address
Justice Ginsburgs concerns
Lower courts have confronted this
problem in a variety of other contexts This
is not a new problem In the banking area the
government has been very active in putting
subpoenas on branch offices of foreign banks
that have access to -shy
JUSTICE GORSUCH Mr Dreeben you
used the word subpoena and -- and weve talked
about that a lot And could you help me out
with the fact that when were focusing on the
text here the statute uses the word warrant
which typically has a very limited and narrow
understanding territorially
MR DREEBEN Yes
JUSTICE GORSUCH Unlike subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH And elsewhere in the
statute Congress used the word subpoenas
MR DREEBEN Yes
JUSTICE GORSUCH So we know it knew
the difference
MR DREEBEN Yes
JUSTICE GORSUCH Help me out with
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that
MR DREEBEN Okay So Im glad that
you brought up the text because I think the
text is actually the governments friend here
What the statute does is create
obligations of disclosure It puts an
obligation on a provider to make disclosure
What a warrant does if its in its
ordinary form under Rule 41 of the Federal
Rules of Criminal Procedure apart from this
statute a warrant is a authorization to a law
enforcement officer to go in and search
Doesnt need the cooperation of anybody
Doesnt put the obligations to do anything on
anybody else It puts the government in the
drivers seat
This statute says -shy
JUSTICE GORSUCH It doesnt do that
I got you But it uses the word warrant So
what are we supposed to make of that
MR DREEBEN I think what you make of
it is that the structure of the statute
provides three mechanisms for the government to
obtain disclosure A subpoena a 2703(d)
order which is the intermediate form of
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process thats at issue in the Carpenter case
and a warrant
And those three different instruments
correlate with the different levels of
sensitivity of information that Congress
perceived and therefore it ratcheted up the
showing that the government had to make in
order to get the disclosure order
And so instead of saying just go get a
warrant it says get a warrant using the
procedures of Rule 41 not all of Rule 41 The
territorial limitations of Rule 41 are not
incorporated into the statute In fact the
statute has its own territorial provision which
provides for nationwide service of disclosure
orders
And it goes on to specify that this
disclosure obligation applies regardless of the
instrument be it subpoena 2703 or a warrant
It all falls on the provider to make
disclosure
And I think that thats an important
fact because when you have an order to a
provider it allows the provider to do what my
friend here did Come into court and make an
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ex-ante objection before the instrument is
executed
With a warrant parties dont get that
opportunity Under United States versus
Grubbs the government shows up with a warrant
The citizens obligation is to comply
It also ensures that -- that the -shy
that the recipient has the obligation to raise
various objections about burdensomeness which
are also features associated with subpoenas
not warrants
And finally it avoids the
intrusiveness of a warrant A warrant allows
the government to just come right in If we
had a warrant and we could get a Rule 41
ordinary warrant if we wanted to we would go
to Microsoft headquarters and ask the gentleman
sitting at the keyboard to step aside and sit
down and do the work ourselves
But we dont do that under 2703 And
Congress didnt intend that we do that What
Congress intended was that we have the ability
to compel providers to provide information
And the warrant then addresses the
customers privacy interests So the court
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below thought that two things were going on
One was we were actually executing a warrant
overseas Thats not true Were putting an
obligation on a domestic provider to comply
with a domestic court order with information
from wherever its drawn
And second the court below thought
that we were invading privacy overseas
There are two fallacies I think in the
view that this is a case about privacy Its
not a case about privacy
The government has the gold standard
of an instrument to address privacy interests
here a probable-cause-based warrant issued by
a judge that describes with particularity what
we want That is the hallmark in our domestic
system of how privacy interests are addressed
JUSTICE BREYER Well I dont -- I
dont know if you want to -shy
JUSTICE ALITO Mr Dreeben do you
think that -- do you think theres anything -shy
that the Stored Communications Act prevents you
from obtaining this information in either of
the two conventional ways that you mentioned
One by getting a grand jury subpoena If the
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Stored Communications Act simply doesnt apply
here could you go to a grand jury and get a
grand jury subpoena or two conduct the kind
of search that you just referred to And if
you did that would Microsoft have any
opportunity to contest that search
MR DREEBEN So if we got a ordinary
conventional warrant under Rule 41 Microsoft
does not have an ex-ante opportunity to contest
the search The government goes in and it
takes control of what property it needs to in
order to conduct the search
The grand jury subpoena I think is a
little bit of a more difficult question because
the question would be whether 2703 meant to
occupy the field in getting information from
providers or instead left us free to use grand
jury subpoenas in areas that arent covered by
2703
What is clear I think though is
that 2703 was meant to build on categories of
existing instruments plus adding a new one of
Congresss own device The subpoena instrument
is useful for us in certain circumstances for
the content of information under the way that
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Congress wrote the statute if we give notice to
the person whose privacy interests are
implicated
It also allows us to get very basic
subscriber information We dont have to go to
a court first We just issue the instrument
The provider has to make disclosures
JUSTICE ALITO Could I ask you one
other question What is happening when these
orders are sought now outside of the Second
Circuit I mean theres been talk about
leaving things alone but is the rest of the
country going -- are the judges everywhere in
the country going to follow what the Second
Circuit decided Are they doing that or are
they continuing to issue the kinds of orders
that were issued in the past
MR DREEBEN Every district court
that has written an opinion outside of the
Second Circuit has rejected the Second
Circuits approach and the United States is
continuing to compel information from service
providers regardless of where they store it
And in the case of providers like
Google algorithms enable them to move
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information around the globe in order to
maximize the efficiency of their system And
much of the information that were getting is
coming from overseas And we have heard no
protests from foreign governments
JUSTICE ALITO What is happening when
these district courts outside of the Second
Circuit are issuing these orders The Internet
service providers are not appealing
MR DREEBEN I think that in some
cases there are appeals that are on hold
pending this Courts disposition of this issue
so its not going to go away And if Congress
doesnt enact legislation we will be here in
the exact position we are today stymied in the
Second Circuit but getting the exact same
information from providers all over the country
in the rest of the country And its
information thats extremely vital to criminal
law enforcement because so much criminal law
enforcement today is international
JUSTICE BREYER I see the problem I
think but what I dont see yet -- maybe I just
have to go back and study it -- is -- is your
answer to Justice Gorsuchs question which has
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been bothering me on both sides Theyre with
you on this you know but I look at the
language of the statute and the statute says
A government entity may require the disclosure
by a provider of electronic communication only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure Right
MR DREEBEN Yes
JUSTICE BREYER Thats what it says
MR DREEBEN Yes
JUSTICE BREYER So then I go to the
Federal Rules of Criminal Procedure and there
the first thing I discover is you ask a
magistrate and it says A magistrate judge
with authority in the district has authority to
issue a warrant to search for and seize a
person or property located within the district
All right Now so thats what you
did You went to this person a magistrate I
think
MR DREEBEN No thats not what we
did
JUSTICE BREYER Oh you went to the
district judge
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MR DREEBEN We went to the district
court -shy
JUSTICE BREYER So its the same
problem Its the same -- isnt it
MR DREEBEN Well its a slightly
different problem Justice Breyer and I think
that I can help clear up a little bit of this
JUSTICE BREYER Yeah Okay
MR DREEBEN There are two angles of
it The most basic one is that the Stored
Communications Act itself has a jurisdictional
provision that allows the government to go to a
variety of places to get warrants It can go
to the district where the crime is being
investigated -shy
JUSTICE BREYER Yeah
MR DREEBEN -- and that court has
nationwide authority Its not trammeled by
Rule 45
JUSTICE BREYER But is that what you
did What did you do here
MR DREEBEN We did that here We
did that here This is an investigation being
conducted out of one district -shy
JUSTICE BREYER Okay Okay Second
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question is -- maybe its not this case but
what happens if you go to Microsoft and you
ask say some for -- for some bank records
that are in Italy and in fact Italy does have
a law we imagine which says absolutely no
bank record can be taken by any other person
without some special thing under the MLAT or
something
MR DREEBEN Yes
JUSTICE BREYER And what happens
then
MR DREEBEN So this is a very common
problem and its why I -- I -shy
JUSTICE BREYER All right So what
is the answer
MR DREEBEN The answer is that
courts conduct a comity analysis They look to
the Restatement of Foreign Relations -shy
JUSTICE BREYER Okay So the answer
is that which many amici suggest to us that
what should be done in such a case is you go to
the magistrate or the judge and you say judge
I want you to look at the factors of comity
And one of them will be if there is -shy
MR DREEBEN Yes
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JUSTICE BREYER -- which you say is
not here -shy
MR DREEBEN Yes
JUSTICE BREYER -- this Italian law
if there is -shy
MR DREEBEN Yes
JUSTICE BREYER -- which says you
cant bring it
MR DREEBEN Yes
JUSTICE BREYER So you -- so perhaps
theres agreement well see about what should
be done and this new law proposes that
MR DREEBEN Well I think whats
more -shy
JUSTICE BREYER Right
MR DREEBEN -- radical is that
Microsofts position is that no court ever gets
to ask the question If the data is stored
overseas were just out of luck We cant
even ask a court for an order that would
require its production
They havent asserted that it would
violate foreign law in order for them to comply
with the order that we obtained in this case
Nobody has actually pointed concretely to a -shy
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JUSTICE KAGAN But you are agreeing
Mr Dreeben that a court in that circumstance
should conduct a comity analysis
MR DREEBEN Yes
JUSTICE KAGAN And if you are what
would that look like and when would it occur
MR DREEBEN Well in our view it
would occur at the contempt stage after the
government procures an order if it seeks to
impose sanctions on a party for noncompliance
Thats roughly the model that this Court used
in Societe Internationale versus Rogers a 1958
decision that squarely posed the question of
whether a party over whom a US court had
jurisdiction could be ordered to produce
documents that were located in Switzerland when
Swiss law had a blocking statute
And the Court had no problem with the
issuance of the order but it had a great deal
of problem with failure to conduct any comity
analysis that took into account possible
conflicts with foreign law
And that same framework was applied by
lower courts when they encountered grand jury
subpoenas seeking financial information located
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in foreign countries -- states and there was
an assertion of a conflict with foreign law
So theres nothing new about this
problem Its a problem that courts have been
grappling with for decades quite successfully
And whats more remarkable is its never come
up under the Stored Communications Act We
have had no protests either before or after
Microsoft and no litigation by a party either
before or after Microsoft that said this order
would violate foreign law
JUSTICE KAGAN May I take you back to
the language of the statute Most of your
argument in your brief focuses on 2703 And
you say -shy
MR DREEBEN Yes
JUSTICE KAGAN -- we should just
focus on 2703 And Im -- Im -- Im not going
to argue with you one way or the other on that
but I want to get your view actually of what
the focus of 2701 and 2702 is
MR DREEBEN So -shy
JUSTICE KAGAN If you do expand your
field of vision and -- you know what would you
say there Congress was -shy
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MR DREEBEN So 2701 is a statute
that blocks access Its a protection against
hackers And we think that is a domestically
focused statute but it would reach foreign
conduct that hacked into a computer located in
the United States
JUSTICE KAGAN The computer is
here -shy
MR DREEBEN Yes
JUSTICE KAGAN -- but the hacker is
overseas
MR DREEBEN Yes Yes Because the
conduct thats the focus of 2701 would be here
2702 is a much more difficult statute We have
not taken a position in this Court on its
focus It prohibits certain divulgences of
information by providers
Weve been willing to assume for
purposes of this case that its focus mirrors
2703 and addresses only domestic disclosures
but that only puts us in the same position as
Microsoft with one difference Microsofts
theory is that if it moves information abroad
since storage is the only thing that counts
its then free to disclose that information to
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the world to sell it to do anything it wants
free from US law
The only thing that Microsoft adds to
that picture is that the only person who cant
get it is the United States under lawful
process And we think that thats wrong and
that the Court should reverse that judgment
If I could save the rest of my time
for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Rosenkranz
ORAL ARGUMENT OF E JOSHUA ROSENKRANZ
ON BEHALF OF THE RESPONDENT
MR ROSENKRANZ Mr Chief Justice
and may it please the Court
Ill start where Justice Kennedy
started which is where we all agree that the
Stored Communications Act is limited to the
United States Yet the government wants to use
the act to unilaterally reach into a foreign
land to search for copy and import private
customer correspondence physically stored in a
digital lockbox any foreign computer where
its protected by foreign law
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Now that is a foreign scenario not a
JUSTICE GINSBURG Mr Rosenkranz
were told and -- and correct me if its
incorrect that until this very case Microsoft
was complying with these disclosure orders
This case is the first time it
objected but there were past efforts of the
same kind and Microsoft disclosed the contents
of the communications Is that so
MR ROSENKRANZ Yes Your Honor but
what -- I just -- I want to make sure that you
-- that the Court understands Justice
Ginsburg that this is a very new phenomenon
this whole notion of cloud storage in another
country
We didnt start doing it until 2010
So the fact that we analyzed what our legal
obligations were and realized wait a minute
this is actually an extraterritorial act that
is unauthorized by the US Government the
fact that we were sober-minded about it
shouldnt be held against us
CHIEF JUSTICE ROBERTS Well but it
-- it seems to me youre assuming the answer to
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the question The governments position of
course is its not an extraterritorial act
Theyre going to Redmond Washington and
saying you have to turn this over to us
Its not the governments fault that
its located overseas I suspect the
government doesnt care Just like any other
subpoena where you go and Mr Dreeben used the
example of funds but it could be any other
evidence
And if there is a particular objection
by the government where the information is
located theyre free to raise that and the
government will have to deal with that but I
gather thats not the situation here
MR ROSENKRANZ Well Your Honor
first it is the situation here but let me
answer the question directly
The reason that this is an
extraterritorial act goes right to the heart of
why we have a presumption against
extraterritoriality No one disputes that
countries across the world believe that they
have the sovereignty and the sovereign right to
pass their own laws governing the access to
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e-mails stored on their soil
And here we are reaching into their
lands and imposing our US position on who
gets access to e-mails on their soil
JUSTICE KENNEDY What -- why should
we have a binary choice between a focus on the
location of the data and the location of the
disclosure Arent there some other factors
where the owner of the e-mail lives or where
the service provider has its headquarters
MR ROSENKRANZ No Justice -shy
JUSTICE KENNEDY Or do we have -shy
were forced to this binary choice
MR ROSENKRANZ Your Honor that is a
consequence of this Courts analysis in
Morrison which no one is challenging But
so yes youve got to figure out what the
focus is at step 2
No ones arguing for any focus other
than the governments argument that it focuses
on disclosure and our argument that it focuses
on storage And I want to be sure to get to
that argument
If you -- if you look at this statute
the focus is on the storage This is the
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Stored Communications Act At the most basic
level thats what the focus is And its more
specifically on securing communications sitting
in storage
Congress confronted this brave new
world of people entrusting their communications
to third-party storage providers It wanted to
make sure that Americans felt comfortable
putting their communications there
JUSTICE ALITO Mr Rosenkranz let me
-- this is what troubles me It would be good
if Congress enacted legislation that modernized
this but in the interim something has to be
done
So what happens in this situation I
mean theres an American citizen whos being
investigated for crimes committed in the United
States The government shows probable cause
that there is evidence of this crime in e-mails
that are in the possession of an American
Internet service provider And there they have
an urgent need for the information
But the provider has chosen to store
the data overseas and in fact in some
instances has actually broken it up into
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shards so that its stored not just in one
foreign country but in a number of foreign
countries
Now what -- what happens in that
situation There is no way in which the
information can be obtained except by pursuing
MLATs against multiple countries a process
that could -- that will take many months maybe
years What happens
MR ROSENKRANZ Well Justice Alito
first that is not so far as certainly -- so
far as this record is concerned and not so far
as any record before any court is concerned
what actually happens
No one actually breaks up the e-mail
into shards certainly not in this case
Thats not what Microsoft does And that is
not it turns out what Google does either -shy
excuse me that is not what the other service
provider does either in the context of these
other cases that are being heard here
JUSTICE ALITO Well we were told
that thats what Gmail does Thats not
correct
MR ROSENKRANZ No Your Honor
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thats not correct
JUSTICE ALITO All right Well all
right The service provider has chosen to
store it overseas Theres no way to get the
information other than through these -- these
very time-consuming MLAT procedures
MR ROSENKRANZ Well Your Honor the
way to get the information is through MLATs
and the only evidence in this record about
MLATs is that MLATs do work If its urgent
for the government the other governments
respond urgently
JUSTICE BREYER Just -- there are two
parts to this in my mind One is the language
which Ill have to work my way through You
heard the answer to that
The other is a practical way of
dealing with the foreign law Now the
government suggested whats impractical about
this in any situation where say Microsoft
thinks that there really is a problem here
because of a foreign law which might forbid it
or a variety of reasons what you do is you -shy
Microsoft goes to the magistrate and says
look theres a problem here because of the law
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of other countries because of this because of
that and the magistrate takes that into
account
That sounds to me like a -- and then
maybe Congress will pass this and well have
standards in it and itll be much more helpful
But -- but even without that whats wrong with
that
MR ROSENKRANZ The problem with
that Justice Breyer is that thats not the
statute Congress passed
The statute Congress passed is a
statute that does not call for this sort of
weighing -shy
JUSTICE BREYER All right Youre
giving a conceptual answer which I think is
fine but -- but I want to know if the
language permits it can we read this statute
to adapt to the modern condition and if we
can then shouldnt we do it that way because
it would be practical Everybody would get a
fair shot Youd take foreign interests into
account Maybe youd use Aerospatiale
standards
One brief tells us theyre not good
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enough but it didnt say what we should use
but -- but the -- the -- the -- you see my
question
MR ROSENKRANZ I do understand your
question Justice Breyer and the answer is
that is simply not the statute that Congress
wrote And the job of this Court is to
interpret the statute Congress wrote rather
than innovating and adopting its own new
standard
Now by the way the CLOUD Act that -shy
that has gotten some conversation this morning
does have various factors that might be
weighed Thats Congresss decision if
Congress wants to do that and its a decision
that applies in certain -shy
JUSTICE SOTOMAYOR Mr Rosenkranz -shy
JUSTICE KENNEDY Under this act
could you voluntarily disclose this to the
government or would that be a violation of
2702
MR ROSENKRANZ It would not be a
violation of 2702 if we voluntarily did
something but it would be a violation of our
obligations to our customers
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JUSTICE KENNEDY Well if thats so
then why cant the government just obtain this
by a subpoena
MR ROSENKRANZ Well so that is
another big question This is a statute in
which the -- or a scenario in which the
government has used a warrant
A subpoena could not reach a lot of
these e-mails because a subpoena would not
reach e-mails that are in storage for less than
180 days under this statute and under a Sixth
Circuit decision couldnt reach them at all
that is individuals private -shy
JUSTICE KENNEDY You could
voluntarily disclose but they couldnt have a
subpoena
MR ROSENKRANZ Im sorry
JUSTICE KENNEDY It seems odd to me
that if -- you could voluntarily disclose but
they couldnt ask for a subpoena That doesnt
quite mesh does it
MR ROSENKRANZ Well Your Honor my
point is -shy
JUSTICE KENNEDY I recognize we have
a difficult statute here
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MR ROSENKRANZ Your Honor if we
voluntarily disclosed it would be a violation
of our obligations to our customer It would
also by the way in this context be a
violation of European law
Now I just -- I want to back up
though There are a lot of -shy
JUSTICE GORSUCH Mr Rosenkranz do
you agree that after 180 days the government
could get this material with a subpoena
MR ROSENKRANZ Absolutely not Your
Honor That is -- I -- I agree with you that
that is what the statute says but it raises
the same exact problems of extraterritoriality
because -- I mean the only thing that we
wouldnt be able to do is rely on the word
warrant and all of the territorial
implications of that word but all of our other
answers would be the same
The truth is other countries -shy
JUSTICE GINSBURG So what actions -shy
what actions would Microsoft have to take
extraterritorial -- extraterritorially to
comply with the -- in this case the warrant
What would Microsoft have to do outside the
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MR ROSENKRANZ Well so lets start
with the fact that these e-mails are stored
outside the United States They are stored in
Ireland And the government is asking us to go
and fetch them from Ireland
They are subject to protections in
Ireland So what happens in Ireland What
happens in Ireland is really a remote control
is actually working a mechanism where these
e-mails are stored on a hard drive in a
facility under protection of foreign law and a
-- a reader which is a physical piece of
hardware reads the digital ones and zeros off
of it which are also physical manifestations
Its then packaged up and it runs through
Ireland on hard wires and over the Atlantic
This is a quintessentially extraterritorial
act
Now I was just saying there are a lot
of complicated questions in this case but the
decisive point and the point that Justice
Gorsuch was making earlier is that the e-mails
are stored in Ireland and the DEA is forcing us
to fetch them
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JUSTICE SOTOMAYOR Im sorry I dont
-- perhaps its my technological ignorance
How is it in a locked box If Im trying to
mentally imagine this what has to happen You
know I press a button in the US and it
accesses directly the information in Ireland
or does something have to happen in Ireland
MR ROSENKRANZ Something has to
happen in Ireland These e-mails Justice
Sotomayor exist only in Ireland And what
happens in -- and it exists in a four -shy
JUSTICE KENNEDY Something has to
happen electronically or with human
intervention
MR ROSENKRANZ No -- no human
intervention -- theres a human -shy
JUSTICE KENNEDY So someway you push
the button in Washington
MR ROSENKRANZ Yes
JUSTICE KENNEDY Then obviously
something happens in Ireland on the computer
But does some person have to be there
MR ROSENKRANZ A human being doesnt
have to do it It is a robot And if you -shy
if you sent a robot into a foreign land to
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seize evidence it would certainly implicate
foreign interests
And so if the DEA -- just let me just
draw out this example
JUSTICE SOTOMAYOR I -- Im sorry
Im -- Im now -- I guess my imagination is
running wild
(Laughter)
JUSTICE SOTOMAYOR How -- how does -shy
who tells the robot what to do and what does
the robot do
MR ROSENKRANZ A human being in
lets say Redmond tells the robot -- it sends
the robot instructions And by the way the
computer scientists amicus brief spells this
out in great detail
JUSTICE SOTOMAYOR Okay
MR ROSENKRANZ What happens then
It interfaces with a hardware computer in a
hardware facility It spins a disk It looks
for the e-mail on that disk after verifying
certain protocols It reads physical
manifestations on magnets of the ones and
zeros which are like letters in the alphabet
And then it copies them onto another disk It
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then safeguards them and sends them back here
Now if the DEA sat at a computer in
DC and hacked into our servers in Ireland
everyone agrees that that would be a search and
seizure in Ireland If the government did what
Mr Dreeben described executed a search
warrant itself pushed us aside from our -shy
from the operator in Redmond pushed them aside
and said Ill take it from here that search
would be in Ireland
All thats happening now is that the
government is requiring us to do something that
it would want to do -shy
JUSTICE GORSUCH Do you dispute that
the government could issue a warrant to go
ahead and do exactly that in Redmond
MR ROSENKRANZ The government could
issue a warrant -- I believe thats -shy
JUSTICE GORSUCH Push you aside and
do the search in Redmond
MR ROSENKRANZ This warrant
authorizes it Theres nothing -shy
JUSTICE GORSUCH No could -- could
the government do that outside of the Stored
Communications Act Could the government issue
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a classic search warrant go into Redmond and
conduct a search on the computers in Redmond
MR ROSENKRANZ It would be an
extraterritorial search it would therefore
be illegal But if the government did that
there is no question that that search is going
on in Ireland and the government -shy
JUSTICE ALITO And what could -- and
what could you do about it
MR ROSENKRANZ Well we could -- we
could sue the government and say that you cant
come onto our property and -- and engage in
these unconstitutional -- in these
extraterritorial acts But my -- my point here
is -shy
JUSTICE ALITO What kind of -shy
CHIEF JUSTICE ROBERTS Counsel -shy
JUSTICE ALITO -- what kind of suit
would that be But anyway never mind
CHIEF JUSTICE ROBERTS -- there -shy
there is nothing under your position that
prevents Microsoft from storing United States
communications every one of them either in
Canada or Mexico or anywhere else and then
telling their customers Dont worry if the
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government wants to get access to your
communications they wont be able to unless
they go through this MLAT procedure which -shy
which is costly and time-consuming Could you
provide that service to your customers
MR ROSENKRANZ Is it theoretically
possible yes but it would never happen And
the reason it would never happen is that we
have 200 million active customers here in the
United States They -- this is really a
tail -shy
CHIEF JUSTICE ROBERTS Well -- Im
sorry In -- in what way is their service
seriously compromised if the server is
overseas
MR ROSENKRANZ Well theres a basic
physical property at issue here that
underscores that this is not just some random
act of putting e-mails in one place or another
Theres this physical phenomenon called
latency It actually slows down the e-mail
service for those 200 -shy
CHIEF JUSTICE ROBERTS Okay So you
-- so they have to wait a little longer I
assume quite -- quite a short while longer but
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theyre protected from any government intrusion
into their e-mail communications
MR ROSENKRANZ Your Honor these
facilities are half a billion dollar
facilities We build them in order to make
sure that our customers get the best possible
service Even a microsecond -- even a fraction
of a seconds delay actually costs us
customers And so we would -shy
CHIEF JUSTICE ROBERTS Well but you
might gain customers if you can assure them no
matter what happens the government wont be
able to get access to their e-mails
MR ROSENKRANZ Your Honor so this
is the -- the tail-wagging-the-dog problem We
have 200 million customers who are relying on
the best service here in the United States that
can possibly be brought
The government serves on us say -- I
mean these -- these statistics are public
60000 requests for information in the United
States The percentage of those that relate to
e-mails abroad its 54 of them out of 60000
Its 999 -shy
CHIEF JUSTICE ROBERTS I know but my
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basic point and Im not sure that youve
answered it is that there is nothing that
prevents Microsoft -- in other words an e-mail
from me to somebody on the other side of the
building that is going to be stored somewhere
else would be protected from disclosure if
people the government wanted access in the
normal course of a criminal investigation where
they have a warrant establishing probable
cause From here to the next block that is
going to be protected from disclosure to the
government
MR ROSENKRANZ And Your Honor my
answer is an equally practical one and that
is if customers do not want their e-mails to
be seized by the government they dont use
Microsofts services They dont use
Microsofts services whether they are in Canada
or Mexico because those are available by MLATs
What do they do They use services
that are sold specifically with the -- with the
promise that we have no US presence and
therefore you can trust us to keep it under
lock and key from the US Government
By the way you probably all have cell
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phones with this feature It is a feature that
scrambles your instant messaging and that
scrambles it in a way that no government can
get their hands on it
So its not like this is a device that
is available only through Microsofts services
If people want to break the law and put their
e-mails outside the reach of the US
Government they simply wouldnt use Microsoft
JUSTICE ALITO Is it correct that we
dont know the nationality of the individual
who has this e-mail account
MR ROSENKRANZ Yes that is correct
Justice Alito
JUSTICE ALITO Well if this person
is not Irish and Ireland played no part in your
decision to store the information there and
theres nothing that Ireland could do about it
if you chose tomorrow to move it someplace
else it is a little difficult for me to see
what Irelands interest is in this
MR ROSENKRANZ Your Honor Irelands
interests are the same interest of any
sovereign who protects information stored where
-- within their domain
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We protect information stored within
the United States and we dont actually care
whose information it is because we have laws
that guard the information for everyone
JUSTICE ALITO And I guess the point
is when were talking about this information
which all right yes it -- it physically
exists on one or more computers somewhere but
it doesnt have a presence anyplace in the
sense that a physical object has a presence
someplace
And the Internet service providers can
put it anywhere they want and move it around at
will The whole idea of territoriality is
strained Wouldnt you agree with that
MR ROSENKRANZ I would not agree
with that Justice Alito and here is why
First I disagree with the premise
This -- these e-mails have a physical
presence They are actually on a hard drive
Are they movable Yes But letters are
movable as well
And they are under protection of
foreign laws which by the way are really
quite robust So moving -- moving just back to
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the -- to the basic question of focus the
common thread that ties together all of these
cross-reference provisions of the SCA the
common thread is stored communications that are
in electronic storage
That is what ties these provisions
together and that is the focus of -shy
JUSTICE KAGAN Well why do we need
to look for a common thread Why shouldnt we
just look at 2703 and ask what Congress was
trying to do in that section
MR ROSENKRANZ Well Your Honor
even if you focus on 2703 and isolate it from
everything else the first thing I would say is
even the government agrees that thats not what
youre supposed to do You are at a minimum
allowed to look at how it relates to other
provisions
The focus is still on protecting
e-mails in electronic storage from government
intrusion It is not about -shy
JUSTICE KAGAN Well how do we know
really I mean it seems as though we have a
choice between two things one is what
Congress is doing is its regulating the
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disclosure in the United States of electronic
communications that are stored everywhere in
the world And thats what the government is
saying
And youre essentially saying the
opposite What Congress was doing was to
regulate the disclosure anywhere in the world
of electronic communications that are stored in
the United States
Im not sure how I pick between those
two from the face of the statute whether its
2703 or whether its the broader statute So
give me your best shot
(Laughter)
MR ROSENKRANZ Okay So I -- I will
give you if I may Ill give you a couple
shots
If were only focusing on 2703
Congress passed the 2703 because it wanted to
limit law enforcement access to a specific
category of e-mails And that is what
E-mails that are in electronic storage
Congress was concerned that e-mails
shared with a service provider would lose all
Fourth Amendment protection under the
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third-party doctrine Congress did not need to
pass 2703 to author disclosure by a warrant
Law enforcement already had access by a
warrant
The focus was on enhancing the
security of e-mails that were in electronic
storage
Now back up and relate the various
provisions 2701 2702 2703 I was saying
earlier at the most basic level this is the
Stored Communications Act Its about securing
communications that are sitting in storage
I was describing earlier this brave
new world that Congress was facing where it
wanted people to -- to understand that their
e-mails in electronic storage were safe
CHIEF JUSTICE ROBERTS If I -- but
you focus on the storage 2703 is headed
Required Disclosure of Customer Communications
Or Records And Congress put that heading in
the Act when it amended it
And it seems to me that the government
might have a strong position there that the
statute focuses on disclosure And disclosure
takes place in Washington not in Ireland
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MR ROSENKRANZ Well Your Honor
2703 -- this goes back to Justice Kagans
question -- it cannot be read in isolation from
2702 2701 and 2702 are with 2703
CHIEF JUSTICE ROBERTS Well 2702
says voluntary disclosure of customer
communications or records And that too
takes place in Washington not Ireland
MR ROSENKRANZ And so the answer
Your Honor is that -- that the Act was first
and fundamentally about protecting the
communications that were in electronic storage
and so 2703 pairs with 2702
Now 2702 is about making sure -- so
2702 as the government has suggested is about
making sure that the electronic -- the
electronic communications in electronic storage
are protected
And 2703 is simply an exception to
2702
JUSTICE BREYER If your -- Im going
to ask a technical thing to help me with that
and do it no more than 15 seconds
MR ROSENKRANZ Yes Justice Breyer
JUSTICE BREYER What I did is I -- I
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looked at the warrant which is in the record
And its signed by James Francis Magistrate
Judge Southern District New York Is that
right
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay So then I went
over to Rule 41 and I assumed it fell within
B A or what is it its -- its B-1 Am I
right or do you know that well enough in your
head
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER Okay
MR ROSENKRANZ Let me hear you say
the question again
JUSTICE BREYER If it fell within
B-1 it says that Mr Francis Judge Francis
has authority to issue a warrant to search for
and seize a property located within the
district
So thats how I got in by -- into my
linguistic problem of -- whats the answer
MR ROSENKRANZ Well Your Honor 27
-- the government has invoked 2703(a) which is
JUSTICE BREYER Yeah -shy
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MR ROSENKRANZ -- the provision that
requires a warrant
JUSTICE BREYER -- and it says youre
only pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure
MR ROSENKRANZ Yes Your Honor
JUSTICE BREYER So I said what is a
warrant It is judge Franciss warrant He is
in the Southern District of New York I went
to Rule 41 and there 41-B-1 which -shy
MR ROSENKRANZ 41 yes
JUSTICE BREYER Yeah so-- so whats
the answer to that The answer says that Judge
Francis -- this says that Judge Francis has
authority to issue a warrant to search for
property in New York
MR ROSENKRANZ Yeah I -- I agree
with you Justice Breyer And -- and warrants
are distinctly territorial devices They are
not extraterritorial devices
So if were looking at federal rule -shy
JUSTICE KAGAN I think the question
JUSTICE BREYER But you didnt make
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much of a point of this in your brief
(Laughter)
JUSTICE BREYER And so I suspect that
-- that -- that it just cant be that easy
this case
MR ROSENKRANZ No Justice Breyer I
think we -- we certainly tried to make a point
in our brief
JUSTICE ALITO No but Mr Rosenkranz
-shy
MR ROSENKRANZ But this incorporates
-shy
JUSTICE ALITO -- I think the
question is this If this information were in
Redmond Washington would the magistrate judge
be unable to issue the order because Redmond
Washington is not in New York Thats the
question
JUSTICE BREYER Thats right
MR ROSENKRANZ Oh he would not be
able to issue the warrant And it is not
because Redmond Washington is not in New York
ItS because warrants although there is
nationwide ability to reach evidence within the
United States warrants are not
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extraterritorial
Now just by way of -- of wrapping up
the government asks this Court to grant it an
extraordinary power and its a power that
Congress did not think it was granting law
enforcement in 1986 and certainly did not
intend to grant to every police officer and
every sheriffs deputy anywhere in the country
Back then if the police needed to
gather evidence from all over the world they
would have to engage with law enforcement
everywhere else in those countries
The Internet makes it possible now to
reach a lifetime of correspondence for billions
of people all across the world but only
Congress can grant that power
And this goes to Justice Ginsburgs
point Think about the questions that the
Court has been wrestling with today Its
about the architecture of other providers
Its -- there were conversations about where
the Internet is headed There is conversations
about whether this will kill the tech sector
how much of an international consensus there is
about the sovereignty of data
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These are all questions that only
Congress can answer Meanwhile this Courts
job is to defer to defer to Congress to take
the path that is least likely to create
international tensions
And if you try to tinker with this
without the tools that -- that only Congress
has you are as likely to break the cloud as
you are to fix it
If there are no further questions I
-- I thank the Court for its attention And we
respectfully request that the Court affirm the
Second Circuit
CHIEF JUSTICE ROBERTS Thank you
counsel
Two minutes Mr Dreeben
REBUTTAL ARGUMENT OF MICHAEL R DREEBEN
ON BEHALF OF THE PETITIONER
MR DREEBEN I have four quick
points two technical and two substantive
The technical point first is Justice
Breyer you asked what the authority of the
district court is The authority of the
district court in this case for a magistrate
judge comes from first 2703 which entitles
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a court of competent jurisdiction to issue the
relevant warrant in this case
This is on page 6A of the governments
appendix to its brief There is then a
definition of a court of competent jurisdiction
on page 12A of the appendix to the governments
brief which defines it to include any
magistrate judge that has jurisdiction over the
offense being investigated as well as several
other bases
This was a Patriot Act amendment
designed to expand the authority of courts to
issue orders
The second technical question is the
one asked by Justice Kennedy on whether
Microsoft could voluntarily disclose this
information to the government It couldnt
Its barred by 2702 from making disclosures
except as authorized by that statute
And one of the exceptions is that the
government can proceed under 2703 to compel the
same information So Microsoft is basically
claiming the authority once it moves the
information overseas to unilaterally disclose
it to anyone But if its in you know
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responding to an order thats issued by the
United States it says it has no obligation to
produce the information
And then the substantive points here
are that this statute does indeed focus on
disclosure and not storage 2703 begins by
requiring disclosure as to the variety of
categories of information that providers may
have and it backs it up with at least three
more provisions that address disclosure
Section E says there is no cause of
action for disclosing in accordance with the
statute Section F allows the government to
issue preservation orders of the information to
be disclosed And Section G discusses -- may I
complete the sentence
CHIEF JUSTICE ROBERTS Sure
MR DREEBEN -- discusses the
execution of the warrant and it provides that
the government need not be there which makes
this an instrument not like a warrant that
allows us to conduct a search but like a
subpoena or discovery order that places
obligations on parties over whom the Court has
jurisdiction Thank you
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CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1122 am the case
was submitted)
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1 account [7] 569 612 2921 393
23 5112
answer [15] 2425 27151619 33
25 3418 3816 3916 405 5014
backdrop [2] 77 82
backs [1] 639 1021 [2] 115 32 achieves [1] 519 569 5721 581414 612 bank [2] 2736 1122 [1] 643 across [2] 3423 6015 answered [2] 1111 502 banking [1] 175 12A [1] 626 Act [27] 31220 42122 7620 15 answers [1] 4219 banks [1] 177 15 [1] 5623 1221 2122 221 2611 307 32 antecedent [2] 10817 barred [1] 6218 17-2 [1] 34 1921 3320 34220 361 4011 anticipates [1] 107 based [1] 161 181a [1] 1413 18 4319 4625 4819 551121 56 anybody [2] 181315 baseline [1] 1414 180 [2] 4111 429 10 6211 anyplace [1] 529 bases [1] 6210 1958 [2] 79 2912 action [1] 6312 anyway [1] 4719 basic [8] 710 234 2610 361 48 1986 [6] 631120 111314 606 actions [2] 422122 apart [2] 1624 1810 16 501 531 5510 1987 [1] 710 active [2] 176 489 appealing [1] 249 basically [2] 811 6222
2 activity [2] 917 1015 appeals [1] 2411 begins [1] 636
2 [1] 3518 acts [1] 4714 APPEARANCES [1] 117 behalf [8] 12022 24710 38 32
20 [1] 132 actual [1] 925 appendix [2] 6246 14 6118
200 [3] 48922 4916 actually [17] 317 41219 1612 application [7] 721 84725 98 believe [2] 3423 4618
2010 [1] 3317 184 212 2825 3020 3320 36 1019 114 below [2] 2117
2018 [1] 111 25 371415 4310 4821 498 52 applied [1] 2923 best [3] 49617 5413
27 [2] 111 5722 220 applies [2] 1918 4016 between [4] 423 356 5324 54
2701 [5] 3021 31113 559 564 adapt [1] 3919 apply [1] 221 10
2702 [13] 3021 3114 402123 55 add [1] 171 approach [1] 2321 big [1] 415
9 5644513141520 6218 adding [1] 2222 approached [1] 923 bilateral [1] 1618
2703 [27] 311 131522 1625 19 address [3] 171 2113 6310 architecture [1] 6020 bill [5] 12815 1423 155 169
19 2020 22151921 301418 31 addressed [1] 2117 area [1] 175 billion [1] 494
20 531013 54121819 552918 addresses [3] 1218 2024 3120 areas [1] 2218 billions [1] 6014
56241319 6125 6221 636 adds [1] 323 arent [2] 2218 358 binary [2] 35613
2703(a [1] 5723 adopting [1] 409 argue [1] 3019 bipartisan [2] 129 1425
2703(d [1] 1824 Aerospatiale [2] 79 3923
Affairs [1] 1312
arguing [3] 86 1415 3519
argument [13] 114 2258 347
bit [2] 2214 267
block [1] 5010 3 affirm [1] 6112 104 3014 3213 35202123 61 blocking [1] 2917
3 [1] 24 age [1] 1216 17 blocks [1] 312
32 [1] 27 agree [9] 6219 719 3218 429 arguments [1] 65 both [3] 519 711 251
35 [1] 1322 12 521516 5818 around [2] 241 5213 bothering [1] 251
4 agreed [1] 1516
agreeing [1] 291
aside [5] 1422 2018 467819
asks [1] 603
box [1] 443
branch [1] 177 41 [9] 189 19111112 2015 228 agreement [1] 2811 aspect [1] 57 brave [3] 616 365 5513 577 581112 agrees [2] 464 5315 asserted [1] 2822 break [2] 517 618
41-B-1 [1] 5811 ahead [1] 4616 assertion [1] 302 breaks [1] 3715 45 [1] 2619 algorithms [1] 2325 assets [1] 1024 BREYER [39] 2118 2422 2510
5 Alito [18] 94 2120 238 246 36 Assistance [1] 1320 1224 26368162025 271014
50 [1] 147 10 371022 382 4781618 51 associated [1] 2010 19 281471015 3813 391015
54 [1] 4923 101415 52517 59913
allowed [1] 5317
assume [3] 1418 3118 4825
assumed [1] 577
405 56212425 576121525
5838131925 593619 6122
6 allowing [1] 58 assuming [2] 1422 3325 brief [7] 3014 3925 4515 5918
60000 [2] 492123 allows [6] 1924 2013 234 2612 assure [1] 4911 6247
61 [1] 210 631322 Atlantic [1] 4317 briefs [1] 136
6A [1] 623 alludes [1] 123 attention [1] 6111 bring [2] 115 288
9 alone [1] 2312
alphabet [1] 4524
author [1] 552
authority [11] 149 1610 251616
broader [2] 61 5412
broken [1] 3625 999 [1] 4924 already [1] 553 2618 5717 5816 612223 6212 brought [2] 183 4918
A alternative [2] 322 414
although [1] 5923
23
authorization [1] 1811
Budapest [3] 1461321
build [2] 2221 495 am [3] 115 32 643
amended [2] 621 5521 authorize [1] 49 building [1] 505 ability [7] 141 1518 16131920
Amendment [2] 5425 6211 authorized [2] 623 6219 built-in [1] 171 2022 5924
American [2] 361620 authorizes [2] 522 4622 bunch [1] 136 able [4] 4216 482 4913 5921
Americans [1] 368 available [2] 5019 516 burdensomeness [1] 209 above-entitled [1] 113
amici [3] 1346 2720 avoids [1] 2012 button [2] 44518abroad [10] 820 9101415 1018
25 1120 1213 3123 4923
absolutely [2] 275 4211
amicus [1] 4515
analogous [1] 510
analysis [4] 2717 29321 3515
away [1] 2413
B C
call [1] 3913 access [10] 153 178 312 3425
analyzed [1] 3318 B-1 [2] 57816 called [2] 1521 4820 354 481 4913 507 5420 553
angles [1] 269 back [13] 77 822 1118 1223 14 came [1] 113 accesses [1] 446
another [4] 3315 415 4525 48 19 2424 3012 426 461 5225 Canada [2] 4724 5018 accordance [1] 6312
19 558 562 609 cannot [1] 563
Heritage Reporting Corporation Sheet 1 1021 - cannot
66Official - Subject to Final Review
canons [1] 158
care [2] 347 522
Carpenter [1] 191
Case [23] 34 422 724 912 1014
191 211011 2324 27121 28
24 3119 3357 3716 4224 43
21 595 6124 622 6423
cases [3] 161 2411 3721
categories [2] 2221 638
category [1] 5421
cause [3] 3618 5010 6311
caused [2] 1325 1517
cell [1] 5025
cert [1] 1511
certain [6] 107 152 2224 3116
4016 4522
certainly [6] 1524 371116 451
597 606
chain [1] 917
challenging [1] 3516
changed [1] 1124
CHIEF [16] 339 321015 3324
471720 481223 491025 5517
565 6114 6317 641
choice [3] 35613 5324
chose [2] 417 5119
chosen [3] 716 3623 383
circuit [10] 15101116 231115
20 24816 4112 6113
Circuits [2] 1517 2321
circumstance [1] 292
circumstances [1] 2224
citizen [1] 3616
citizens [1] 206
claiming [1] 6223
classic [1] 471
classically [2] 312 47
clear [3] 521 2220 267
clearly [1] 84
CLOUD [4] 1520 3315 4011 61
8
clouds [1] 63
cognizance [1] 913
collected [1] 914
come [7] 1223 13919 1925 20
14 306 4712
comes [1] 6125
comfortable [1] 368
coming [1] 244
comity [4] 271723 29320
committed [1] 3617
committee [2] 152223
common [4] 2712 53249
communication [1] 255
Communications [26] 312 1116
22 2122 221 2611 307 3219
3310 361369 4625 4723 482
492 534 5428 55111219 567
1217
compel [3] 2023 2322 6221
competent [2] 6215
complaining [1] 134
complaints [3] 13131617
complete [1] 6316
compliance [1] 144
complicated [1] 4321
comply [5] 715 206 214 2823
4224
complying [1] 336
compromised [1] 4814
computer [9] 51213 3157 3224
4421 451519 462
computers [4] 82022 472 528
concept [1] 1117
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concern [1] 113
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concretely [1] 2825
condition [1] 3919
conduct [21] 313 523 8141518
91279 10817 119 22312 27
17 29320 31513 472 6322
conducted [1] 2624
confident [1] 111
conflict [3] 13510 302
conflicts [3] 1211 137 2922
confronted [2] 173 365
Congress [34] 691623 76 1125
1215 1720 195 202122 231
2413 3025 36512 3951112
406815 531025 5461923 55
11420 60516 61237
Congresss [2] 2223 4014
consensus [1] 6024
consequence [1] 3515
construing [1] 620
contempt [1] 298
content [1] 2225
contents [1] 339
contest [2] 2269
context [3] 52 3720 424
contexts [1] 174
continuing [2] 231622
control [3] 717 2211 439
Convention [1] 1414
conventional [2] 2124 228
conversation [1] 4012
conversations [2] 602122
convicted [1] 1022
cooperation [2] 1618 1813
copies [1] 4525
copy [1] 3222
CORPORATION [2] 16 35
correct [6] 719 334 3724 381
511013
correlate [1] 194
correspondence [2] 3223 6014
costly [1] 484
costs [1] 498
couldnt [4] 41121520 6217
counsel [4] 3211 4717 6115 64
2
countries [7] 301 3423 3737 39
1 4220 6012
country [7] 231314 241718 33
16 372 608
counts [1] 3124
couple [3] 619 1513 5416
course [2] 342 508
COURT [50] 1114 31014 6620
22 71213 81010121224 95
23 1022 13922 1411 1514 19
25 2025 2157 23618 26217
281720 292111418 3115 32
716 3313 3713 407 60319 61
11122324 6215 6324
Courts [9] 77 8217 1014 157
25 2412 3515 612
courts [8] 111 148 173 247 27
17 2924 304 6212
covered [1] 2218
create [5] 12720 132 185 614
crime [3] 315 2614 3619
crimes [1] 3617
criminal [8] 1519 1810 241920
25813 508 586
cross-reference [1] 533
custody [1] 517
customer [4] 3223 423 5519 56
6
customers [1] 2025
customers [9] 4025 4725 4859
49691116 5015
Cybercrime [1] 146
D DC [3] 11019 463
data [5] 1616 2818 357 3624 60
25
dating [1] 77
days [2] 4111 429
DEA [3] 4324 453 462
deal [3] 152 2919 3414
dealing [1] 3818
decades [2] 1315 305
decide [1] 161
decided [1] 2315
decision [12] 73810 82 1325
143 1517 2913 401415 4112
5117
decisions [3] 891017
decisive [1] 4322
defendant [2] 102223
defer [2] 6133
defines [1] 627
definition [1] 625
delay [1] 498
Department [5] 119 131112 14
25 151
depend [1] 1320
Deputy [2] 118 608
describe [1] 325
described [3] 257 466 585
describes [1] 2115
describing [1] 5513
designed [1] 6212
detail [1] 4516
determining [1] 825
detract [1] 1018
device [2] 2223 515
devices [2] 582021
difference [2] 1723 3122
different [4] 122 1934 266
difficult [4] 2214 3114 4125 51
20
digital [2] 3224 4314
directly [3] 45 3418 446
disagree [2] 1420 5218
disagreement [1] 1422
disclose [7] 107 3125 4019 41
1519 621624
disclosed [4] 916 339 422 63
15
disclosing [1] 6312
disclosure [32] 31318 41621 5
421 714 104 186724 19815
1821 254 336 35821 50611
5417 552192424 566 6367
10
disclosures [3] 237 3120 6218
discover [1] 2514
discovery [2] 48 6323
discusses [2] 631518
disk [3] 45202125
disposition [1] 2412
dispute [1] 4614
disputes [1] 3422
distinction [1] 423
distinctly [1] 5820
district [13] 2318 247 251618
25 2611424 57319 5810 61
2324
divorce [1] 921
divulgences [1] 3116
doctrine [1] 551
documents [1] 2916
doing [5] 124 2315 3317 5325
546
dollar [1] 494
domain [1] 5125
domestic [15] 313 711 81415
17 91278 101824 214516
3120
domestically [1] 313
done [4] 121 2721 2812 3614
down [3] 49 2019 4821
draw [1] 454
drawn [1] 216
DREEBEN [71] 118 239 3679
4218 52425 618 722 8124 9
111922 105913 1110 121721
138 15613 16569 1791618
2124 18221 2120 227 2318
2410 2591122 261591722
279121625 283691316 292
47 301622 311912 348 466
61161719 6318
drive [2] 4311 5220
drivers [1] 1816
duty [1] 157
E e-mail [7] 359 3715 4521 4821
492 503 5112
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e-mails [22] 822 3514 3619 41
910 4331123 449 4819 4913
23 5015 518 5219 5320 5421
2223 55616
earlier [3] 4323 551013
easy [1] 594
efficiency [1] 242
efforts [1] 338
either [9] 666 99 2123 3089
371820 4723
electronic [12] 255 53520 541
822 55616 5612161717
electronically [1] 4413
elsewhere [1] 1719
enable [1] 2325
enact [1] 2414
enacted [2] 1524 3612
encountered [1] 2924
endorses [1] 1612
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enforcement [8] 142 1812 2420
21 5420 553 60611
engage [2] 4712 6011
enhancing [1] 555
enough [2] 401 579
ensures [1] 207
entitles [1] 6125
entity [1] 254
entrusting [1] 366
equally [1] 5014
ESQ [2] 121 26
essentially [2] 510 545
establishing [1] 509
European [2] 148 425
even [7] 99 2820 397 4977 53
1315
Everybody [1] 3921
everyone [2] 464 524
everything [1] 5314
everywhere [3] 2313 542 6012
evidence [6] 3410 3619 389 45
1 5924 6010
ex-ante [2] 201 229
exact [3] 241516 4214
exactly [2] 1415 4616
example [3] 1020 349 454
except [2] 376 6219
exception [1] 5619
exceptions [1] 6220
excuse [1] 3719
executed [2] 202 466
executes [1] 56
executing [1] 212
execution [1] 6319
exist [3] 64 1624 4410
existence [1] 1120
existing [1] 2222
exists [3] 162 4411 528
expand [2] 3023 6212
extraordinary [1] 604
extraterritorial [15] 720 847 93
1149 3320 34220 4223 4318
47414 5821 601
extraterritoriality [3] 125 3422
4214
extraterritorially [1] 4223
extremely [1] 2419
F fabric [1] 1611
face [1] 5411
facilitate [1] 1619
facilities [3] 410 4945
facility [2] 4312 4520
facing [1] 5514
fact [13] 913 1016 117 123 13
16 1712 191323 274 331822
3624 433
factors [3] 2723 358 4013
failure [1] 2920
fair [2] 1117 3922
fairly [2] 11111
fallacies [1] 219
falls [2] 112 1920
far [3] 37111212
fault [1] 345
feature [2] 5111
features [1] 2010
February [1] 111
federal [7] 1022 1519 189 257
13 58522
fell [2] 57715
felt [1] 368
fetch [2] 43625
field [2] 2216 3024
figure [1] 3517
final [1] 167
finally [1] 2012
financial [1] 2925
fine [3] 1023 115 3917
first [16] 34 44 619 921 1223
156 236 2514 337 3417 3711
5218 5314 5610 612125
fix [1] 619
focus [22] 96612 10115 3018
21 31131619 356181925 362
53171319 55518 635
focused [1] 314
focuses [5] 312 3014 352021
5524
focusing [2] 1712 5418
follow [1] 2314
forbid [1] 3822
forced [1] 3513
forcing [1] 4324
foreign [30] 92 1211 13581318
142 154 177 245 2718 2823
2922 301211 314 32212425
331 3722 381822 3922 4312
4425 452 5224
forget [1] 1224
form [2] 18925
forth [1] 1419
four [2] 4411 6119
Fourth [1] 5425
fraction [1] 497
framework [1] 2923
Francis [5] 5721616 581515
Franciss [1] 589
free [4] 2217 3125 322 3413
friend [2] 184 1925
function [2] 447
functions [2] 44 519
fundamental [2] 423 1625
fundamentally [1] 5611
funds [1] 349
furnish [1] 1410
further [1] 6110
G gain [1] 4911
gather [2] 3415 6010
General [1] 118
gentleman [1] 2017
geographic [1] 1119
gets [4] 5516 2817 354
getting [4] 2125 2216 24316
GINSBURG [7] 525 618 819 12
3 33314 4221
Ginsburgs [3] 1112 172 6017
give [5] 1210 231 54131616
giving [1] 3916
glad [1] 182
globe [1] 241
Gmail [1] 3723
gold [1] 2112
Google [2] 2325 3718
GORSUCH [17] 9112024 1036
10 17917192225 1818 428
4323 46141923
Gorsuchs [1] 2425
got [6] 1221 136 1819 227 35
17 5720
gotten [1] 4012
governing [1] 3425
government [68] 320 491620
25 5569111623 138 1415 16
11 176 181523 197 20514 21
12 2210 254 2612 299 3220
3321 3471214 3618 381119
4020 4127 429 435 4651215
172425 475711 481 49112
19 507121624 5139 531520
543 5522 5615 5723 603 62
1721 631320
governments [9] 319 1518 16
13 184 3415 3520 6236
governments [4] 131418 245
3811
grab [1] 425
grand [6] 2125 22231317 2924
grant [3] 603716
granted [1] 1511
granting [1] 605
grappling [1] 305
grave [2] 141 1517
great [3] 1211 2919 4516
Grubbs [1] 205
guard [1] 524
guess [2] 456 525
H
hacked [2] 315 463
hacker [1] 3110
hackers [1] 313
half [2] 921 494
hallmark [1] 2116
hand [1] 56
hands [2] 410 514
happen [9] 82021 117 44479
13 4878
happening [3] 239 246 4611
happens [12] 27210 3615 3749
14 4389 441121 4518 4912
hard [3] 431117 5220
hardware [3] 4314 451920
harm [1] 1518
head [1] 5710
headed [2] 5518 6022
heading [1] 5520
headquarters [2] 2017 3510
hear [2] 33 5713
heard [5] 63 1313 244 3721 38
16
heart [1] 3420
held [1] 3323
help [6] 1021 141 171125 267
5622
helpful [1] 396
hold [1] 2411
home [1] 115
Honor [19] 3311 3416 3514 37
25 387 4122 42112 49314 50
13 5122 5312 56110 57511
22 587
human [5] 4413151623 4512
hybrid [1] 43
I idea [1] 5214
identify [1] 925
ignorance [1] 442
ignore [1] 1011
illegal [1] 475
illustrate [1] 1021
imagination [1] 456
imagine [3] 1125 275 444
immediate [1] 1518
implicate [1] 451
implicated [1] 233
implications [1] 4218
import [1] 3222
important [1] 1922
impose [1] 2910
imposing [1] 353
impractical [1] 3819
include [1] 627
including [1] 147
incorporated [1] 1913
incorporates [1] 5911
incorrect [1] 335
indeed [1] 635
individual [4] 51114 713 5111
individuals [1] 4113
information [54] 314 46 5118 6
25 731416 813 914 131823
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141012 153 16142021 195 J 425 4312 517 5420 553 605 mentally [1] 444
2023 21523 221625 23522 11 mentioned [1] 2124
24131719 2925 31172325 James [1] 572 lawful [1] 325 mesh [1] 4121
3412 3622 376 3858 446 49 job [2] 407 613 laws [4] 143 3425 52324 messaging [1] 512
21 511724 521346 5914 62 joined [1] 147 least [2] 614 639 Mexico [2] 4724 5019
172224 633814 JOSHUA [3] 121 26 3213 leave [3] 61522 1214 MICHAEL [5] 118 239 37 6117
innovating [1] 409 judge [13] 2115 251525 272222 leaving [1] 2312 microsecond [1] 497
innovation [1] 610 57316 5891415 5915 6125 left [1] 2217 MICROSOFT [27] 16 35 72 131
instances [1] 3625 628 Legal [3] 1319 1611 3318 25 143 1515 2017 2258 272
instant [1] 512 judges [1] 2313 legislation [2] 2414 3612 30910 3122 323 3359 3717
instead [2] 199 2217 judgment [1] 327 legislative [2] 1424 163 382024 422225 4722 503 51
instructions [1] 4514 jurisdiction [7] 712 1615 2915 less [1] 4110 9 621622
instrument [10] 4324 52 623 62158 6325 letters [2] 4524 5221 Microsofts [6] 410 2817 3122
1919 201 2113 2223 236 63 jurisdictional [1] 2611 level [2] 362 5510 501718 516
21 jurisdictions [1] 149 levels [1] 194 might [4] 3822 4013 4911 5523
instruments [2] 193 2222 jurisprudence [1] 126 lifetime [1] 6014 million [2] 489 4916
intend [2] 2021 607 jury [6] 2125 22231318 2924 likely [2] 6148 mind [2] 3814 4719
intended [2] 121 2022 Justice [148] 119 33917 4212 limit [1] 5420 minimum [1] 5316
interest [2] 512123 52425 618 7182223 819 94 limitations [3] 1212 153 1912 minute [1] 3319
interests [8] 612 2025 211317 112023 103610 111011 123 limited [2] 1714 3219 minutes [1] 6116
232 3922 452 5123 18 13312 1418 15110 1658 line [1] 811 mirage [1] 131
interfaces [1] 4519 172917192225 1818 211820 linguistic [1] 5721 mirrors [1] 3119
interference [1] 141 238 2462225 25101224 263 litigation [1] 309 MLAT [4] 1320 277 386 483
interim [1] 3613 68162025 27101419 28147 little [4] 2214 267 4824 5120 MLATs [5] 377 3881010 5019
intermediate [1] 1825 1015 2915 30121723 31710 lives [1] 359 model [1] 2911
international [10] 711 818 127 32101517 3331324 3551112 located [9] 1025 1324 2518 29 modern [1] 3919
25 1312 14514 2421 6024 61 3610 371022 38213 391015 1625 315 34613 5718 modernized [1] 3612
5 4051718 411141824 42821 location [3] 1615 3577 money [2] 1135
Internationale [2] 78 2912 4322 4419121720 455917 locations [2] 1123 154 months [1] 378
Internet [5] 248 3621 5212 60 46141923 47816171820 48 lock [1] 5024 morning [2] 34 4012
1322 1223 491025 51101415 525 lockbox [1] 3224 Morrison [2] 82 3516
interpret [2] 157 408 17 53822 5517 5625212425 locked [1] 443 most [6] 1210 147 2610 3013
interpretation [1] 158 576121525 583813192325 longer [2] 482425 361 5510
intervention [2] 441416 593691319 6017 611421 62 look [14] 518 69 9524 1114 25 movable [2] 522122
introduced [1] 1521 15 6317 641 2 271723 296 3524 3825 539 move [4] 73 2325 5119 5213
intrusion [2] 491 5321 K 1017 moves [2] 3123 6223
intrusiveness [1] 2013 KAGAN [12] 1658 2915 3012 looked [1] 571 moving [2] 522525
invading [1] 218 1723 31710 53822 5823
looking [1] 5822 much [9] 610 1357 24320 31
investigated [3] 2615 3617 629 Kagans [1] 562 looks [1] 4520 14 396 591 6024
investigation [2] 2623 508 keep [1] 5023 lose [1] 5424 multiple [1] 377
invoke [1] 1322 KENNEDY [15] 7182223 3217 lot [5] 1419 1711 418 427 4320 must [3] 715 9914
invoked [1] 5723 35512 4018 411141824 44
lower [3] 810 173 2924 Mutual [1] 1319
involving [1] 1212 121720 6215
luck [1] 2819 N Ireland [21] 821 435688917
24 446791021 463510 477
511618 5525 568
Irelands [2] 512122
Irish [1] 5116
isnt [2] 613 264
isolate [1] 5313
key [1] 5024
keyboard [1] 2018
keyboards [1] 411
kill [1] 6023
kind [5] 63 223 339 471618
kinds [1] 2316
M made [3] 66 72 1423
magistrate [10] 25151520 2722
3824 392 572 5915 6124 628
magnets [1] 4523
manifestations [2] 4315 4523
narrow [1] 1714
nationality [1] 5111
nations [2] 1478
nations [1] 1619
nationwide [3] 1915 2618 5924
necessarily [1] 107
isolation [1] 563 L manner [1] 1613 need [6] 1318 1813 3622 538
issuance [1] 2919 land [2] 3222 4425 many [2] 2720 378 551 6320
issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609
17 46151825 4817 5717 5816 language [6] 520 924 253 3013 material [1] 4210 needs [2] 517 2211
591621 62113 6314 3814 3918 materials [3] 32224 1119 never [4] 306 4719 4878
issued [6] 1515 2114 2317 256 laptop [3] 5121516 matter [2] 113 4912 New [17] 12121 616 1216 175
584 631 largely [1] 131 maximize [1] 242 2222 2812 303 3314 365 409
issues [2] 713 812 last [2] 122224 mean [8] 820 917 133 2311 36 5514 573 581017 591722
issuing [1] 248 latency [1] 4821 16 4215 4920 5323 next [1] 5010
itll [1] 396 Laughter [3] 458 5414 592 meaning [1] 415 Nobody [1] 2825
Italian [1] 284 law [36] 744711 81618 1014 meant [2] 221521 noncompliance [1] 2910
Italy [2] 2744 13510 142 151924 162 1811 Meanwhile [1] 612 none [1] 85
itself [3] 169 2611 467 242020 275 2841223 2917
22 30211 32225 38182225
mechanism [1] 4310
mechanisms [2] 1618 1823
normal [2] 1525 508
nothing [10] 6813 734 118 30
Heritage Reporting Corporation Sheet 4 information - nothing
69Official - Subject to Final Review
3 4622 4721 502 5118
notice [1] 231
notion [1] 3315
nowhere [1] 1121
nuanced [1] 68
number [1] 372
O object [1] 5210
objected [1] 338
objection [2] 201 3411
objections [1] 209
obligation [9] 54 112 1625 187
1918 2068 214 632
obligations [8] 521 145 18614
3319 4025 423 6324
obtain [3] 512 1824 412
obtained [2] 2824 376
obtaining [1] 2123
obviously [1] 4420
occupy [1] 2216
occur [3] 99 2968
occurred [1] 611
occurs [2] 421 1016
odd [1] 4118
offense [1] 629
Office [1] 1311
officer [2] 1812 607
offices [1] 177
Okay [10] 182 2682525 2719 45
17 4823 5415 57612
old [1] 1117
Once [4] 55516 6223
one [25] 63 95 166 21225 2222
238 261024 2724 3019 3122
3422 3516 37115 3814 3925
4723 4819 5014 528 5324 62
1520
ones [1] 3519
ones [3] 1416 4314 4523
only [17] 41 816 255 31202124
3234 389 4215 4410 516 54
18 584 6015 6117
open [1] 1420
operated [1] 1315
operates [2] 44 53
operating [1] 624
operation [1] 85
operator [1] 468
opinion [3] 95 1515 2319
opportunity [3] 204 2269
opposite [1] 546
oral [5] 113 225 37 3213
order [28] 314 48 57819 713
15 81222 106 139 1825 1988
23 215 2212 241 28202324
29919 3010 495 5916 63123
ordered [2] 1023 2915
orders [7] 1916 231016 248 33
6 6213 6314
ordinary [3] 189 2016 227
other [27] 67 99 1017 1317 15
14 1619 174 239 276 3019 34
79 35819 371921 3851117
391 421820 5034 5317 6020
6210
otherwise [1] 1223
ourselves [1] 2019
out [10] 144 171125 2624 2819
3517 3718 45416 4923
outside [7] 231019 247 4225
434 4624 518
over [13] 324 71217 147 1614
2417 2914 344 4317 577 60
10 628 6324
overseas [12] 713 2138 244 28
19 3111 346 3624 384 4815
6224
own [7] 323 143 158 1914 22
23 3425 409
owner [1] 359
P packaged [1] 4316
PAGE [3] 22 6236
pairs [1] 5613
part [4] 122224 1611 5116
particular [3] 1122 149 3411
particularity [1] 2115
parties [3] 719 203 6324
partners [1] 142
parts [1] 3814
party [5] 81113 291014 309
pass [4] 1215 3425 395 552
passed [4] 620 391112 5419
past [3] 1116 2317 338
path [1] 614
Patriot [1] 6211
pay [2] 1023 115
pending [1] 2412
people [5] 366 507 517 5515
6015
perceived [1] 196
percentage [1] 4922
performed [1] 47
perhaps [2] 2810 442
permissible [1] 88
permits [2] 320 3918
person [12] 534 62425 715 23
2 251820 276 324 4422 5115
personal [1] 712
Petitioner [6] 1420 2410 38 61
18
phenomenon [2] 3314 4820
phones [1] 511
physical [7] 431315 4522 4817
20 521019
physically [2] 3223 527
pick [1] 5410
picture [1] 324
piece [1] 4313
place [3] 4819 5525 568
places [4] 5321 2613 6323
played [1] 5116
please [3] 310 168 3216
plus [1] 2222
point [14] 62 1021 1422 167 41
23 432222 4714 501 525 591
7 6018 6121
pointed [1] 2825
points [2] 6120 634
police [2] 6079
posed [1] 2913
position [9] 1012 2415 2817 31
1521 341 353 4721 5523
possession [1] 3620
possible [4] 2921 487 496 60
13
possibly [1] 4918
potential [1] 1219
power [3] 604416
practical [3] 3817 3921 5014
practice [1] 161
premise [1] 5218
presence [4] 5022 5291020
preservation [1] 6314
press [1] 445
presumably [2] 41618
presumption [1] 3421
prevents [3] 2122 4722 503
privacy [7] 2025 21810111317
232
private [2] 3222 4113
probable [2] 3618 509
probable-cause-based [2] 58
2114
probably [2] 1224 5025
problem [17] 12225 1745 2422
2646 2713 291820 3044 38
2125 399 4915 5721
problems [3] 12719 4214
Procedure [5] 1810 25813 483
586
procedures [4] 1911 257 386
585
proceed [1] 6221
process [5] 1424 163 191 326
377
procures [1] 299
produce [4] 625 813 2915 633
production [2] 515 2821
prohibits [2] 75 3116
promise [1] 5022
property [6] 2211 2518 4712 48
17 5718 5817
proposed [1] 129
proposes [1] 2812
protect [1] 521
protected [5] 3225 491 50611
5618
protecting [3] 1121 5319 5611
protection [4] 312 4312 5223
5425
protections [4] 1211 1624 171
437
protects [1] 5124
protests [2] 245 308
protocols [1] 4522
provide [4] 83 1617 2023 485
provider [20] 316 45622 522
1323 1614 187 19202424 21
4 237 255 3510 362123 3720
383 5424
providers [15] 1319 1410 1620
21 2023 2217 232324 24917
3117 367 5212 6020 638
provides [5] 415 1014 1823 19
15 6319
provision [5] 41415 1914 2612
581
provisions [5] 533618 559 63
10
public [1] 4920
purposes [2] 724 3119
pursuant [3] 1321 256 584
pursuing [1] 376
push [2] 4417 4619
pushed [2] 4678
put [6] 410 94 1814 517 5213
5520
puts [4] 144 18615 3121
putting [5] 1421 176 213 369
4819
Q question [25] 61 1112 1222 14
21 1520 221415 239 2425 27
1 2818 2913 34118 4035 415
476 531 563 5714 5823 5914
18 6214
questions [4] 4321 6018 61110
quick [1] 6119
quintessentially [1] 4318
quite [5] 305 4121 482525 52
25
quo [2] 1214 1417
R radical [1] 2816
raise [3] 113 208 3413
raises [1] 4213
random [1] 4818
ratcheted [1] 196
rather [2] 162 408
reach [8] 314 3221 4181012 51
8 5924 6014
reaching [1] 352
read [6] 41313 725 81 3918 56
3
reader [1] 4313
reading [1] 1219
reads [2] 4314 4522
reality [1] 1113
realized [1] 3319
realizing [1] 610
really [8] 319 41 1416 3821 43
9 4810 5224 5323
reason [2] 3419 488
reasons [2] 1514 3823
REBUTTAL [3] 28 329 6117
recipient [1] 208
recognize [1] 4124
record [5] 276 371213 389 571
records [5] 1115 1212 273 55
20 567
Redmond [10] 343 4513 46816
Heritage Reporting Corporation Sheet 5 nothing - Redmond
70Official - Subject to Final Review
20 4712 59151622
reference [1] 1115
referred [1] 224
reflected [1] 816
regardless [6] 625 715 1411 16
15 1918 2323
regulate [2] 616 547
regulating [1] 5325
rejected [1] 2320
relate [2] 4922 558
related [1] 315
relates [1] 5317
Relations [1] 2718
relevant [1] 622
rely [1] 4216
relying [1] 4916
remarkable [1] 306
remote [1] 439
request [1] 6112
requests [2] 1411 4921
require [3] 1410 254 2821
required [2] 918 5519
requires [6] 31318 45 74 148
582
requiring [6] 420 514 624 714
4612 637
respectfully [1] 6112
respond [1] 3812
Respondent [4] 1722 27 3214
responding [1] 631
response [1] 1411
responses [1] 619
rest [3] 2312 2418 328
Restatement [1] 2718
retrench [1] 1610
reverse [1] 327
rights [1] 152
RJR [2] 83 95
ROBERTS [14] 33 3210 3324 47
1720 481223 491025 5517 56
5 6114 6317 641
robot [6] 442425 4510111314
robust [1] 5225
Rogers [2] 78 2912
ROSENKRANZ [60] 121 26 32
121315 33311 3416 351114
3610 371025 387 399 40417
22 4141722 421811 432 448
151923 451218 461721 473
10 48616 49314 5013 5113
22 5216 5312 5415 561924
575111322 58171218 5969
1120
roughly [1] 2911
rule [12] 710 89 189 19111112
2015 228 2619 577 581122
Rules [4] 1810 25713 585
run [1] 1316
running [2] 79 457
runs [1] 4316
S safe [1] 5516
safeguards [2] 1622 461
same [11] 116 2416 2634 2923
3121 339 421419 5123 6222
sanctions [1] 2910
sat [1] 462
save [1] 328
saying [8] 88 139 199 344 43
20 5445 559
says [21] 419 813 1014 118 16
11 1817 1910 2531015 275
287 3824 4213 566 5716 583
1415 63211
SCA [1] 533
scenario [2] 331 416
scientists [1] 4515
scrambles [2] 5123
search [28] 3182123 412324 5
9131723 1812 22461012 25
17 3222 4646920 471246
5717 5816 6322
searching [1] 320
seat [1] 1816
second [13] 921 151616 217 23
10142020 24716 2625 6113
6214
seconds [1] 498
seconds [1] 5623
Section [6] 311 1413 5311 63
111315
sector [1] 6023
securing [2] 363 5511
security [1] 556
see [5] 242223 2811 402 5120
seek [2] 131022
seeking [2] 132 2925
seeks [1] 299
seems [4] 3325 4118 5323 55
22
seize [3] 2517 451 5718
seized [1] 5016
seizure [1] 465
sell [1] 321
senators [1] 129
sends [2] 4513 461
sense [2] 718 5210
sensitivity [1] 195
sent [1] 4425
sentence [1] 6316
seriously [1] 4814
serve [1] 513
server [1] 4814
servers [1] 463
serves [1] 4919
service [15] 316 1915 2322 249
3510 3621 3719 383 48513
22 49717 5212 5424
services [4] 50171820 516
several [1] 629
shards [2] 37116
shared [1] 5424
sheriffs [1] 608
short [1] 4825
shot [2] 3922 5413
shots [1] 5417
shouldnt [5] 1214 155 3323 39
20 539
showing [1] 197
shows [2] 205 3618
side [2] 67 504
sides [1] 251
signed [1] 572
simply [4] 221 406 519 5619
since [3] 611 1515 3124
single [1] 519
sit [2] 49 2018
sitting [3] 2018 363 5512
situation [6] 122 341517 3615
375 3820
Sixth [1] 4111
slightly [1] 265
slows [1] 4821
sober-minded [1] 3322
Societe [2] 78 2912
soil [2] 3514
sold [1] 5021
Solicitor [1] 118
somebody [1] 504
someplace [2] 5119 5211
someway [1] 4417
somewhere [2] 505 528
sorry [4] 4117 441 455 4813
sort [1] 3913
SOTOMAYOR [15] 317 4212 5
24 1110 1218 133 1418 1510
4017 44110 455917
sought [1] 2310
sounds [1] 394
source [1] 323
Southern [2] 573 5810
sovereign [2] 3424 5124
sovereignty [2] 3424 6025
special [1] 277
specific [1] 5420
specifically [2] 363 5021
specify [1] 1917
spells [1] 4515
spins [1] 4520
split [2] 151111
squarely [1] 2913
stage [1] 298
standard [2] 2112 4010
standards [2] 39624
start [5] 1221 1512 3217 3317
432
started [1] 3218
starting [1] 62
State [2] 1311 151
STATES [31] 11314 35141516
81623 916 1016 1120 1321
204 2321 301 316 32520 36
18 4314 4722 4810 491722
522 5419 5925 632
statistics [1] 4920
status [2] 1214 1417
statute [52] 419 520 61120 725
83 9167825 10216 114813
14 1321 157 171320 18511
1722 191314 231 2533 2917
3013 311414 3524 391112
1318 4068 4151125 4213 54
1112 5524 6219 63513
statutory [1] 158
step [2] 2018 3518
still [1] 5319
storage [18] 64 3124 3315 3522
25 3647 4110 53520 5422 55
7121618 561217 636
store [5] 716 2323 3623 384 51
17
Stored [31] 311 71 11151519
22 1213 1412 154 2122 221
2610 2818 307 321923 351
361 371 43341124 4624 505
5124 521 534 5428 5511
storing [1] 4722
strained [1] 5215
strong [1] 5523
structure [3] 520 85 1822
study [1] 2424
stymied [1] 2415
subject [1] 437
submitted [2] 6424
subpoena [18] 48 5214 1710
1824 1919 2125 2231323 34
8 413891620 4210 6323
subpoena-type [1] 424
subpoenas [6] 1771720 2010
2218 2925
subscriber [1] 235
subsequently [1] 621
substantive [2] 6120 634
substitute [1] 319
successfully [1] 305
sue [1] 4711
suggest [1] 2720
suggested [2] 3819 5615
suit [1] 4718
supplementary [1] 1623
supported [1] 1425
Suppose [1] 1021
supposed [2] 1820 5316
SUPREME [2] 1114
suspect [2] 346 593
Swiss [1] 2917
Switzerland [1] 2916
system [2] 2117 242
T tail [1] 4811
tail-wagging-the-dog [1] 4915
talked [1] 1710
tech [1] 6023
technical [4] 5622 612021 62
14
technological [1] 442
technology [1] 1116
tells [3] 3925 451013
tend [1] 1420
tensions [1] 615
territorial [4] 191214 4217 58
20
territoriality [1] 5214
territorially [1] 1715
Heritage Reporting Corporation Sheet 6 Redmond - territorially
19
71Official - Subject to Final Review
test [3] 825 912 1014 81623 915 1016 1120 1321 whom [3] 1614 2914 6324
text [7] 85 925 101 117 1713 204 2321 316 32520 3617 43 wild [1] 457 1834 will [10] 1021 1618 2414 2724
theoretically [1] 486
14 4722 4810 491721 522 54
19 5925 632 3414 378 395 5214 5415 60
theory [1] 3123 unless [2] 83 482 23
theres [18] 68 917 128 141920 Unlike [1] 1717 willing [1] 3118
1510 2121 2311 2811 303 36 unqualified [1] 1613 wires [1] 4317 16 38425 4416 4622 481620 until [2] 33517 wiser [1] 614
5118 unusual [1] 1512 within [8] 1015 2518 5125 521
therefore [3] 196 474 5023 up [13] 1522 183 196 205 267 5771518 5924
thinking [1] 1118 307 3625 3715 426 4316 558 without [3] 277 397 617
thinks [1] 3821 602 639 word [6] 17101320 1819 4216
third-party [2] 367 551 urgent [2] 3622 3810 18
though [3] 2220 427 5323 urgently [1] 3812 words [1] 503
thread [3] 53249 urging [1] 1416 work [3] 2019 381015
three [3] 1823 193 639 useful [2] 1617 2224 working [1] 4310
ties [2] 5326 uses [2] 1713 1819 world [9] 617 321 3423 366 54
time-consuming [2] 386 484 using [4] 912 1910 256 584 37 5514 601015
tinker [1] 616 worry [1] 4725V today [5] 122 1612 241521 60 wrapping [1] 602
variety [4] 174 2613 3823 637 wrestling [1] 6019 various [4] 612 209 4013 558together [2] 5327 write [1] 611 verifying [1] 4521tomorrow [1] 5119 written [3] 134 1515 2319 versus [4] 35 78 204 2912took [1] 2921 wrote [3] 231 4078 view [4] 97 2110 297 3020tools [1] 617 Yviewed [2] 81517totally [1] 121 violate [2] 2823 3011 years [1] 379trammeled [1] 2618 violation [5] 40202324 4225 York [7] 12121 573 581017 59transmitted [1] 915 vision [1] 3024 1722Treaty [3] 1320 14621 vital [1] 2419trenching [1] 124 Z voluntarily [6] 401923 411519tried [1] 597 zeros [2] 4314 4524422 6216troubles [1] 3611 voluntary [1] 566true [1] 213 voted [1] 1523trust [1] 5023
truth [1] 4220 W try [2] 925 616 wait [3] 155 3319 4824 trying [2] 443 5311 waiting [1] 162 Tuesday [1] 111 wanted [6] 512 2016 367 507 turn [2] 323 344
5419 5515 turns [1] 3718 wants [5] 616 32120 4015 481 two [12] 43 211924 223 269 38 warrant [48] 321 41520 5717 13 5324 5411 61162020
117 1713 1881119 1921010 typically [2] 1315 1714
19 20351313151624 21214
228 25617 417 421724 467U 151821 471 509 5524 57117
58249916 5921 622 631921 US [10] 812 1318 2914 322 33
21 353 445 502224 518 warrants [5] 2011 2613 5819 59unable [1] 5916 2325unauthorized [1] 3321
Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163
way [21] 66 725 922 131417 22unconstitutional [1] 4713 25 3019 375 38481517 3920under [22] 519 710 131519 157 4011 424 4514 4813 5025 51189 20420 22825 277 307 32 3 5224 6025 4018 411111 4312 4721 50
ways [1] 212423 5223 5425 6221 weighed [1] 4014underscores [1] 4818 weighing [1] 3914understand [5] 1034 128 404 Whereupon [1] 6435515 wherever [2] 1323 216understanding [1] 1715 whether [9] 71 825 2215 2914understands [1] 3313 5018 541112 6023 6215unilateral [1] 72
whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516
Heritage Reporting Corporation Sheet 7 test - zeros