supreme court of the united states · 2018. 2. 27. · supreme court of the united states in the...

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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, D.C. Date: February 27, 2018 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com

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Page 1: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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

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Page 2: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

Heritage Reporting Corporation

1

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64

Official - Subject to Final Review

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

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key [1] 5024

keyboard [1] 2018

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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

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issue [16] 191 23616 2412 25 lands [1] 353 marked [1] 1522 needed [1] 609

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Heritage Reporting Corporation Sheet 4 information - nothing

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6224

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PAGE [3] 22 6236

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Patriot [1] 6211

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6015

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Petitioner [6] 1420 2410 38 61

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13

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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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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

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10

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5520

puts [4] 144 18615 3121

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4819

Q question [25] 61 1112 1222 14

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18 6214

questions [4] 4321 6018 61110

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25

quo [2] 1214 1417

R radical [1] 2816

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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

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record [5] 276 371213 389 571

records [5] 1115 1212 273 55

20 567

Redmond [10] 343 4513 46816

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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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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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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

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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

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

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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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3510 3621 3719 383 48513

22 49717 5212 5424

services [4] 50171820 516

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20 539

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situation [6] 122 341517 3615

375 3820

Sixth [1] 4111

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Societe [2] 78 2912

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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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stage [1] 298

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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

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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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study [1] 2424

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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

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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

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tech [1] 6023

technical [4] 5622 612021 62

14

technological [1] 442

technology [1] 1116

tells [3] 3925 451013

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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

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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

Page 3: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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

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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

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

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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Page 4: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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

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581

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5520

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582

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SOTOMAYOR [15] 317 4212 5

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432

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14

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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

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though [3] 2220 427 5323 urgently [1] 3812 words [1] 503

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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

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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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Page 5: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

Heritage Reporting Corporation

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64

Official - Subject to Final Review

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

mechanism [1] 4310

mechanisms [2] 1618 1823

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Heritage Reporting Corporation Sheet 4 information - nothing

69Official - Subject to Final Review

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O object [1] 5210

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obligation [9] 54 112 1625 187

1918 2068 214 632

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3319 4025 423 6324

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Okay [10] 182 2682525 2719 45

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Once [4] 55516 6223

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238 261024 2724 3019 3122

3422 3516 37115 3814 3925

4723 4819 5014 528 5324 62

1520

ones [1] 3519

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391 421820 5034 5317 6020

6210

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434 4624 518

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2417 2914 344 4317 577 60

10 628 6324

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6224

own [7] 323 143 158 1914 22

23 3425 409

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P packaged [1] 4316

PAGE [3] 22 6236

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Patriot [1] 6211

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6015

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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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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

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

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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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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

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581

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10

public [1] 4920

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5520

puts [4] 144 18615 3121

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4819

Q question [25] 61 1112 1222 14

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18 6214

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25

quo [2] 1214 1417

R radical [1] 2816

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reach [8] 314 3221 4181012 51

8 5924 6014

reaching [1] 352

read [6] 41313 725 81 3918 56

3

reader [1] 4313

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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

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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

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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

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

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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

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

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side [2] 67 504

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since [3] 611 1515 3124

single [1] 519

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sitting [3] 2018 363 5512

situation [6] 122 341517 3615

375 3820

Sixth [1] 4111

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Societe [2] 78 2912

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sold [1] 5021

Solicitor [1] 118

somebody [1] 504

someplace [2] 5119 5211

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somewhere [2] 505 528

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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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stage [1] 298

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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

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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

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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

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substitute [1] 319

successfully [1] 305

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suggest [1] 2720

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suit [1] 4718

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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

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tech [1] 6023

technical [4] 5622 612021 62

14

technological [1] 442

technology [1] 1116

tells [3] 3925 451013

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territorial [4] 191214 4217 58

20

territoriality [1] 5214

territorially [1] 1715

Heritage Reporting Corporation Sheet 6 Redmond - territorially

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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

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

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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

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

Page 6: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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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

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

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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Page 7: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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

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375 3820

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SOTOMAYOR [15] 317 4212 5

24 1110 1218 133 1418 1510

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432

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State [2] 1311 151

STATES [31] 11314 35141516

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204 2321 301 316 32520 36

18 4314 4722 4810 491722

522 5419 5925 632

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14

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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

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Page 8: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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

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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

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70Official - Subject to Final Review

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15 1918 2323

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Relations [1] 2718

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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

retrench [1] 1610

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RJR [2] 83 95

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roughly [1] 2911

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2015 228 2619 577 581122

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3121 339 421419 5123 6222

sanctions [1] 2910

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20 5445 559

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6214

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Section [6] 311 1413 5311 63

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22

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20 539

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375 3820

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SOTOMAYOR [15] 317 4212 5

24 1110 1218 133 1418 1510

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432

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STATES [31] 11314 35141516

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204 2321 301 316 32520 36

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522 5419 5925 632

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17

Stored [31] 311 71 11151519

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1824 1919 2125 2231323 34

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2218 2925

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Suppose [1] 1021

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14

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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

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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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Page 9: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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13

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5425

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5520

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582

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20 5445 559

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Section [6] 311 1413 5311 63

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22

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20 539

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375 3820

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SOTOMAYOR [15] 317 4212 5

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432

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204 2321 301 316 32520 36

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17

Stored [31] 311 71 11151519

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1824 1919 2125 2231323 34

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2218 2925

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14

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20

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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

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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

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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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Page 10: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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only [17] 41 816 255 31202124

3234 389 4215 4410 516 54

18 584 6015 6117

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operator [1] 468

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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

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orders [7] 1916 231016 248 33

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

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3517 3718 45416 4923

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434 4624 518

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10 628 6324

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6224

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23 3425 409

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P packaged [1] 4316

PAGE [3] 22 6236

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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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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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5618

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5425

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437

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383 5424

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10

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5520

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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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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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575111322 58171218 5969

1120

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2015 228 2619 577 581122

Rules [4] 1810 25713 585

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S safe [1] 5516

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3121 339 421419 5123 6222

sanctions [1] 2910

sat [1] 462

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20 5445 559

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11 1817 1910 2531015 275

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1415 63211

SCA [1] 533

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search [28] 3182123 412324 5

9131723 1812 22461012 25

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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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20 539

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375 3820

Sixth [1] 4111

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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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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

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1722 191314 231 2533 2917

3013 311414 3524 391112

1318 4068 4151125 4213 54

1112 5524 6219 63513

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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

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5124 521 534 5428 5511

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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

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technical [4] 5622 612021 62

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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

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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

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Page 11: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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Heritage Reporting Corporation Sheet 4 information - nothing

69Official - Subject to Final Review

3 4622 4721 502 5118

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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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Okay [10] 182 2682525 2719 45

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Once [4] 55516 6223

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238 261024 2724 3019 3122

3422 3516 37115 3814 3925

4723 4819 5014 528 5324 62

1520

ones [1] 3519

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18 584 6015 6117

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23 215 2212 241 28202324

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6 6213 6314

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391 421820 5034 5317 6020

6210

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434 4624 518

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10 628 6324

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6224

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PAGE [3] 22 6236

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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

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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

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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

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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Relations [1] 2718

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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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responses [1] 619

rest [3] 2312 2418 328

Restatement [1] 2718

retrench [1] 1610

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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

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Rogers [2] 78 2912

ROSENKRANZ [60] 121 26 32

121315 33311 3416 351114

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151923 451218 461721 473

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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

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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

second [13] 921 151616 217 23

10142020 24716 2625 6113

6214

seconds [1] 498

seconds [1] 5623

Section [6] 311 1413 5311 63

111315

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seems [4] 3325 4118 5323 55

22

seize [3] 2517 451 5718

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sell [1] 321

senators [1] 129

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sense [2] 718 5210

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service [15] 316 1915 2322 249

3510 3621 3719 383 48513

22 49717 5212 5424

services [4] 50171820 516

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20 539

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situation [6] 122 341517 3615

375 3820

Sixth [1] 4111

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Societe [2] 78 2912

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Solicitor [1] 118

somebody [1] 504

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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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432

started [1] 3218

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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

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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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study [1] 2424

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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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suit [1] 4718

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supported [1] 1425

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

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tech [1] 6023

technical [4] 5622 612021 62

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technological [1] 442

technology [1] 1116

tells [3] 3925 451013

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territorial [4] 191214 4217 58

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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

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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

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

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Page 12: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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Heritage Reporting Corporation Sheet 4 information - nothing

69Official - Subject to Final Review

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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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Okay [10] 182 2682525 2719 45

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Once [4] 55516 6223

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1520

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6210

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6224

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PAGE [3] 22 6236

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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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13

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2114

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Procedure [5] 1810 25813 483

586

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585

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377

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5618

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5425

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437

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383 5424

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10

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5520

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4819

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18 6214

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25

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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

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Heritage Reporting Corporation Sheet 5 nothing - Redmond

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15 1918 2323

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Relations [1] 2718

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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

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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

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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

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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

second [13] 921 151616 217 23

10142020 24716 2625 6113

6214

seconds [1] 498

seconds [1] 5623

Section [6] 311 1413 5311 63

111315

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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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service [15] 316 1915 2322 249

3510 3621 3719 383 48513

22 49717 5212 5424

services [4] 50171820 516

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20 539

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situation [6] 122 341517 3615

375 3820

Sixth [1] 4111

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Societe [2] 78 2912

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Solicitor [1] 118

somebody [1] 504

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somewhere [2] 505 528

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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

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

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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

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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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supported [1] 1425

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

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tech [1] 6023

technical [4] 5622 612021 62

14

technological [1] 442

technology [1] 1116

tells [3] 3925 451013

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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

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Washington [9] 11019 343 44unbroken [1] 811 18 5525 568 59151722uncertain [1] 163

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Heritage Reporting Corporation Sheet 7 test - zeros

Page 13: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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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

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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

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parties [3] 719 203 6324

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party [5] 81113 291014 309

pass [4] 1215 3425 395 552

passed [4] 620 391112 5419

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Patriot [1] 6211

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pending [1] 2412

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6015

perceived [1] 196

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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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plus [1] 2222

point [14] 62 1021 1422 167 41

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

possibly [1] 4918

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privacy [7] 2025 21810111317

232

private [2] 3222 4113

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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

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377

procures [1] 299

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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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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

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581

provisions [5] 533618 559 63

10

public [1] 4920

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5520

puts [4] 144 18615 3121

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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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quite [5] 305 4121 482525 52

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

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REBUTTAL [3] 28 329 6117

recipient [1] 208

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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

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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

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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

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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

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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

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

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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

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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

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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

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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

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substantive [2] 6120 634

substitute [1] 319

successfully [1] 305

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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

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whos [1] 3616unilaterally [2] 3221 6224 whole [2] 3315 5214UNITED [30] 11314 35141516

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Page 14: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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parts [1] 3814

party [5] 81113 291014 309

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Patriot [1] 6211

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people [5] 366 507 517 5515

6015

perceived [1] 196

percentage [1] 4922

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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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plus [1] 2222

point [14] 62 1021 1422 167 41

23 432222 4714 501 525 591

7 6018 6121

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police [2] 6079

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13

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232

private [2] 3222 4113

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2114

probably [2] 1224 5025

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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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1323 1614 187 19202424 21

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

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10

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5520

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4819

Q question [25] 61 1112 1222 14

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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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15 1918 2323

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Relations [1] 2718

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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

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Rogers [2] 78 2912

ROSENKRANZ [60] 121 26 32

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151923 451218 461721 473

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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

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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

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search [28] 3182123 412324 5

9131723 1812 22461012 25

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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

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seize [3] 2517 451 5718

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sell [1] 321

senators [1] 129

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3510 3621 3719 383 48513

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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Societe [2] 78 2912

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Solicitor [1] 118

somebody [1] 504

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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

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

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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

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storage [18] 64 3124 3315 3522

25 3647 4110 53520 5422 55

7121618 561217 636

store [5] 716 2323 3623 384 51

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Stored [31] 311 71 11151519

22 1213 1412 154 2122 221

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361 371 43341124 4624 505

5124 521 534 5428 5511

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1824 1919 2125 2231323 34

8 413891620 4210 6323

subpoena-type [1] 424

subpoenas [6] 1771720 2010

2218 2925

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suit [1] 4718

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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

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tech [1] 6023

technical [4] 5622 612021 62

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technological [1] 442

technology [1] 1116

tells [3] 3925 451013

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territorial [4] 191214 4217 58

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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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Page 15: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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

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15 6319

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581

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10

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5520

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4819

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18 6214

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25

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9 4810 5224 5323

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15 1918 2323

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582

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Respondent [4] 1722 27 3214

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Restatement [1] 2718

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6214

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22

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20 539

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375 3820

Sixth [1] 4111

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SOTOMAYOR [15] 317 4212 5

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State [2] 1311 151

STATES [31] 11314 35141516

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204 2321 301 316 32520 36

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522 5419 5925 632

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17

Stored [31] 311 71 11151519

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1824 1919 2125 2231323 34

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2218 2925

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Suppose [1] 1021

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14

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20

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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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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

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though [3] 2220 427 5323 urgently [1] 3812 words [1] 503

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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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Page 16: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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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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

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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

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

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Page 17: SUPREME COURT OF THE UNITED STATES · 2018. 2. 27. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. UNITED STATES, ) Petitioner, ) v. ) No. 17-2 MICROSOFT

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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

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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

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

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

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