855 F.3d 53 (2nd Cir. 2017), 14-2985, In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney:E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP (Robert M. Loeb and Brian P. Goldman, Orrick, Herrington & Sutcliffe LLP, New York, NY; Guy Petrillo, Petrillo Klein & Boxer LLP, New York, NY; James M. Garland and Alexander A. Berengaut, Covington & Burling LLP, Washington, DC; Bradford L...
Judge Panel:PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges. Susan L. Carney, Circuit Judge, concurs by opinion in the de...
Party Name:In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation; MICROSOFT CORPORATION, Appellant, v. UNITED STATES OF AMERICA, Appellee
Case Date:January 24, 2017
Citation:855 F.3d 53
Docket Nº:14-2985
 
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855 F.3d 53 (2nd Cir. 2017)

In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation;

MICROSOFT CORPORATION, Appellant,

v.

UNITED STATES OF AMERICA, Appellee

14-2985

United States Court of Appeals, Second Circuit

January 24, 2017

          E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP (Robert M. Loeb and Brian P. Goldman, Orrick, Herrington & Sutcliffe LLP, New York, NY; Guy Petrillo, Petrillo Klein & Boxer LLP, New York, NY; James M. Garland and Alexander A. Berengaut, Covington & Burling LLP, Washington, DC; Bradford L. Smith, David M. Howard, John Frank, Jonathan Palmer, and Nathaniel Jones, Microsoft Corp., Redmond, WA; on the brief), for Microsoft Corporation.

         Justin Anderson, Assistant United States Attorney (Serrin Turner, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

         Brett J. Williamson, David K. Lukmire, Nate Asher, O'Melveny & Myers LLP, New York, NY; Faiza Patel, Michael Price, Brennan Center for Justice, New York, NY; Hanni Fakhoury, Electronic Frontier Foundation, San Francisco, CA; Alex Abdo, American Civil Liberties Union Foundation, New York, NY; for Amici Curiae Brennan Center for Justice at NYU School of Law, American Civil Liberties Union, The Constitution Project, and Electronic Frontier Foundation, in support of Appellant.

         Kenneth M. Dreifach, Marc J. Zwillinger, Zwillgen PLLC, New York, N.Y. and Washington, DC, for Amicus Curiae Apple, Inc., in support of Appellant.

         Andrew J. Pincus, Paul W. Hughes, Mayer Brown LLP, Washington, DC, for Amici Curiae BSA | The Software Alliance, Center for Democracy and Technology, Chamber of Commerce of the United States, The National Association of Manufacturers, and ACT | The App Association, in support of Appellant.

         Steven A. Engel, Dechert LLP, New York, NY, for Amicus Curiae Anthony J. Colangelo, in support of Appellant.

         Alan C. Raul, Kwaku A. Akowuah, Sidley Austin LLP, Washington, DC, for Amici Curiae AT& T Corp., Rackspace US, Inc., Computer & Communications Industry Association, i2 Coalition, and Application Developers Alliance, in support of Appellant.

         Peter D. Stergios, Charles D. Ray, McCarter & English, LLP, New York, N.Y. and Hartford, CT, for Amicus Curiae Ireland.

         Peter Karanjia, Eric J. Feder, Davis Wright Tremaine LLP, New York, NY, for Amici Curiae Amazon.com, Inc., and Accenture PLC, in support of Appellant.

         Michael Vatis, Jeffrey A. Novack, Steptoe & Johnson LLP, New York, NY; Randal S. Milch, Verizon Communications Inc., New York, NY; Kristofor T. Henning, Hewlett-Packard Co., Wayne, PA; Amy Weaver, Daniel Reed, Salesforce.com, Inc., San Francisco, CA; Orin Snyder, Thomas G. Hungar, Alexander H. Southwell, Gibson, Dunn & Crutcher LLP, New York, NY; Mark Chandler, Cisco Systems, Inc., San Jose, CA; Aaron Johnson, eBay Inc., San Jose, CA, for Amici Curiae Verizon Communications, Inc., Cisco Systems, Inc., Hewlett-Packard Co., eBay Inc., Salesforce.com, Inc., and Infor, in support of Appellant.

         Laura R. Handman, Alison Schary, Davis Wright Tremaine LLP, Washington, DC, for Amici Curiae Media Organizations, in support of Appellant.

         Philip Warrick, Klarquist Sparkman, LLP, Portland, OR, for Amici Curiae Computer and Data Science Experts, in support of Appellant.

         Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White & Case, New York, NY, for Amicus Curiae Jan Philipp Albrecht, Member of the European Parliament, in support of Appellant.

         Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White & Case, New York, NY; Edward McGarr, Simon McGarr, Dervila McGirr, McGarr Solicitors, Dublin, Ireland, for Amicus Curiae Digital Rights Ireland Limited, National Council for Civil Liberties, and The Open Rights Group, in support of Appellant.

         PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges. Susan L. Carney, Circuit Judge, concurs by opinion in the denial of rehearing en banc. Dennis Jacobs, Circuit Judge, joined by José A. Cabranes, Reena Raggi, and Christopher F. Droney, Circuit Judges, dissents by opinion from the denial of rehearing en banc. José A. Cabranes, Circuit Judge, joined by Dennis Jacobs, Reena Raggi, and Christopher F. Droney, Circuit Judges, dissents by opinion from the denial of rehearing en banc. Reena Raggi, Circuit Judge, joined by Dennis Jacobs, José A. Cabranes, and Christopher F. Droney, Circuit Judges, dissents by opinion from the denial of rehearing en banc. Christopher F. Droney, Circuit Judge, joined by Dennis Jacobs, José A. Cabranes, and Reena Raggi, Circuit Judges, dissents by opinion from the denial of rehearing en banc.

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         ORDER

         Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc.[*] A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

          CONCUR

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          Susan L. Carney , Circuit Judge, concurring in the order denying rehearing en banc:

         The original panel majority opinion, see Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016), fully explains why quashing the government's warrant is called for by Supreme Court precedent on extraterritoriality and the text of the Stored Communications Act (" SCA" ), 18 U.S.C. § § 2701 et seq. Because the panel opinions did not include a dissent, however, I write again, briefly, to respond with respect to several points raised during our Court's consideration of whether to grant the government's petition for en banc review and reflected in the dissents from denial of rehearing.1

         The theme running through the government's petition and the dissents is the concern that, by virtue of the result the panel reached, U.S. law enforcement will less easily be able to access electronic data that a magistrate judge in the United States has determined is probably connected to criminal activity.2 My panel colleagues and I readily acknowledge the gravity of this concern. But the SCA governs this case, and so we have applied it, looking to the statute's text and following the extraterritoriality analysis of Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). We recognize at the same time that in many ways the SCA has been left behind by technology. It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.3

         Before going further, it is worth pointing out what is not at issue in this appeal. First, it is common ground that Congress did not intend for the SCA's warrant procedures to apply extraterritorially. See Gov't Pet. for Reh'g 11. Second, although the panel majority determined that the SCA's focus lies on protecting user privacy, this determination was made under the second part of the extraterritoriality analysis set forth as a canon of construction in Morrison and recently developed further in RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016). See RJR Nabisco, 136 S.Ct. at 2101 (" If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we

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do this by looking to the statute's 'focus.'" ). Our " focus" analysis did not turn on privacy protections independently derived from the Fourth Amendment. Nor did we express or imply a view about how Congress may permissibly legislate to enable the government to reach data stored abroad and under the control of U.S. companies; our reading of the SCA did no more than adhere to the dictates of Morrison in construing the SCA. Finally, since the instrument was issued by a neutral magistrate judge upon a showing of probable cause, no one disputes that the Microsoft warrant has satisfied the most stringent privacy protections our legal system affords.

         Accordingly, the dispositive question in the case, as we see it, might be framed as whether Microsoft's execution of the warrant to retrieve a private customer's electronic data, stored on its servers in Ireland, would constitute an extraterritorial application of the SCA in light of the statute's " focus," determined in accordance with Morrison and RJR Nabisco. Again, this is a question of statutory construction. And, unsurprising in light of the need for an extraterritoriality analysis, it requires consideration of the concerns of sovereignty and ...

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