United States v. Microsoft

SUPREME COURT
OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
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UNITED STATES, )
Petitioner, )
v. ) No. 17-2
MICROSOFT CORPORATION, )
Respondent. )
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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
Official - Subject to Final Review
1 IN THE SUPREME COURT OF THE UNITED STATES
2 - - - - - - - - - - - - - - - - - -
3 UNITED STATES, )
4 Petitioner, )
5 v. ) No. 17-2
6 MICROSOFT CORPORATION, )
7 Respondent. )
8 - - - - - - - - - - - - - - - - - -
10 Washington, D.C.
11 Tuesday, February 27, 2018
12
13 The above-entitled matter came on for oral
14 argument before the Supreme Court of the United States
15 at 10:21 a.m.
16
17 APPEARANCES:
18 MICHAEL R. DREEBEN, Deputy Solicitor General,
19 Department of Justice, Washington, D.C.; on
20 behalf of the Petitioner.
21 E. JOSHUA ROSENKRANZ, ESQ., New York, New York; on
22 behalf of the Respondent.
23
24
25
Heritage Reporting Corporation
1 C O N T E N T S
2 ORAL ARGUMENT OF: PAGE:
3 MICHAEL R. DREEBEN
4 On behalf of the Petitioner 3
5 ORAL ARGUMENT OF:
6 E. JOSHUA ROSENKRANZ, ESQ.
7 On behalf of the Respondent 32
8 REBUTTAL ARGUMENT OF:
9 MICHAEL R. DREEBEN
10 On behalf of the Petitioner 61
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1 P R O C E E D I N G S
2 (10:21 a.m.)
3 CHIEF JUSTICE ROBERTS: We'll hear
4 argument first this morning in Case 17-2,
5 United States versus Microsoft Corporation.
6 Mr. Dreeben.
7 ORAL ARGUMENT OF MICHAEL R. DREEBEN
8 ON BEHALF OF THE PETITIONER
9 MR. DREEBEN: Mr. Chief Justice, and
10 may it please the Court:
11 Section 2703 of the Stored
12 Communications Act focuses on classically
13 domestic conduct. It requires disclosure in a
14 court order by the United States of information
15 related to United States crime and here by a
16 United States service provider.
17 JUSTICE SOTOMAYOR: It actually
18 requires a search. It's -- the disclosure here
19 is really a substitute for the government's
20 searching. The Act permits the government to
21 have a warrant and go in and search for these
22 materials or, in the alternative, to ask the
23 source to do its own search and then turn the
24 materials over.
25 So why -- you describe it as if it's
1 only a disclosure, but it's really a search.
2 MR. DREEBEN: So, Justice Sotomayor,
3 it -- it's a hybrid instrument that has two
4 functions. The first function operates
5 directly on the provider. It requires a
6 provider to make disclosure of information.
7 That is a function that's classically performed
8 by a subpoena or a discovery order. It does
9 not authorize the government to go in, sit down
10 at Microsoft's facilities, put hands on
11 keyboards -
12 JUSTICE SOTOMAYOR: Well, actually, it
13 does. If you read -- if you read the
14 provision, it's an -- an alternative for that,
15 meaning the provision provides for a warrant
16 that presumably would let the government do
17 just that if it chose.
18 MR. DREEBEN: So, presumably, not
19 because the statute actually says that the
20 government can get a warrant requiring
21 disclosure. The act that -- that occurs in the
22 case is an act on the provider. And the
23 fundamental distinction between a search and a
24 subpoena-type instrument is that in a search
25 the government does go right in and grab the
1 information.
2 In a subpoena context, the instrument
3 operates on a person and it places an
4 obligation on that person to make disclosure.
5 Once it gets to the government, once the
6 government has the account in hand, it executes
7 the warrant aspect of the order, which is a
8 probable-cause-based order, allowing the
9 government to search the account.
10 So it's essentially analogous to if
11 the government knew that an individual had a
12 laptop computer and it wanted to obtain that
13 computer and search it, it could serve a
14 subpoena on the individual requiring the
15 production of the laptop.
16 Once the government gets the laptop
17 into its custody, it needs a search warrant to
18 get in and look at the information. And here a
19 single order achieves both functions under a
20 statute whose structure and language makes
21 clear that it places disclosure obligations on
22 a provider and it then authorizes the
23 government to conduct the search.
24 JUSTICE SOTOMAYOR: Mr. Dreeben -
25 JUSTICE GINSBURG: Mr. Dreeben, may I
1 ask you a broader question? I think the
2 starting point all would agree in, what was it,
3 1986, no one ever heard of clouds. This kind
4 of storage didn't exist.
5 And there are good arguments that can
6 be made either way, but a court can say either
7 you are right, all right, or the other side is
8 all right, and there's nothing nuanced about
9 it. If Congress takes a look at this,
10 realizing that much time and -- and innovation
11 has occurred since 1986, it can write a statute
12 that takes account of various interests. And
13 it isn't just all or nothing.
14 So wouldn't it be wiser just to say
15 let's leave things as they are; if -- if
16 Congress wants to regulate in this brave new
17 world, it should do it?
18 MR. DREEBEN: Well, Justice Ginsburg,
19 a couple of responses. First, I agree that the
20 Court is construing a statute passed in 1986
21 and then amended subsequently. And we think
22 the Court should leave things as they are with
23 the instrument that Congress authorized,
24 operating on a person, and requiring that
25 person to produce information regardless of
1 whether it's stored overseas.
2 Microsoft here made a unilateral
3 decision to move information overseas. Nothing
4 in the law requires it. Nothing in the law
5 prohibits it.
6 What Congress did was act against a
7 backdrop of law dating back to this Court's
8 Societe Internationale versus Rogers decision
9 in 1958 and running through the Aerospatiale
10 decision in 1987, under which the basic rule of
11 both domestic and international law is that
12 when a court has personal jurisdiction over an
13 individual before the court and issues an order
14 requiring disclosure of information, that
15 person must comply with the order regardless of
16 where it has chosen to store the information
17 over which it has control.
18 JUSTICE KENNEDY: In that sense, is it
19 -- is it correct to say that the parties agree
20 that the Act does not have extraterritorial
21 application?
22 MR. DREEBEN: Yes, Justice Kennedy.
23 JUSTICE KENNEDY: And is that just a
24 concession you make for purposes of this case,
25 or do you read the statute that way?
1 MR. DREEBEN: We read it against the
2 backdrop of this Court's decision in Morrison
3 and RJR, which provide that unless the statute
4 clearly has extraterritorial application in its
5 text, structure, or operation, it has none.
6 And we're not here arguing that this
7 application is extraterritorial and
8 permissible. What we're saying is that it has
9 always been the rule from decisions in this
10 Court and decisions in the lower court in a
11 basically unbroken line that when a party is
12 before a U.S. court and a court issues an order
13 to that party that says produce information,
14 that's domestic conduct.
15 It's viewed as domestic conduct not
16 only in United States law reflected in this
17 Court's decisions; it's viewed as domestic
18 conduct in international law.
19 JUSTICE GINSBURG: But something has
20 to happen abroad. I mean, there are computers
21 in Ireland and something has to happen to those
22 computers in order to get these e-mails back to
23 the United States.
24 MR. DREEBEN: Yes. And this Court has
25 a test for determining whether an application
1 of a statute that has some domestic conduct and
2 some foreign conduct is domestic or
3 extraterritorial.
4 And as Justice Alito put it for the
5 Court in the RJR opinion, one has to look at
6 the focus of the statute. If the focus of the
7 statute has domestic conduct in view, then it
8 is a domestic application of the statute,
9 either if -- even if other conduct must occur
10 abroad.
11 JUSTICE GORSUCH: Mr. Dreeben, why
12 would that be the case using the focus test
13 that we wouldn't take cognizance of the fact
14 that the information must be collected abroad
15 and transmitted from abroad to the United
16 States before it could then be disclosed? I
17 mean, there's a chain of activity that's
18 required here.
19 MR. DREEBEN: There -
20 JUSTICE GORSUCH: Why should we
21 divorce the first half from the second?
22 MR. DREEBEN: Because I think the way
23 that the Court has approached this, Justice
24 Gorsuch, is to look at the language of the
25 statute and the actual text and try to identify
10
1 from that text what is the focus of the
2 statute.
3 JUSTICE GORSUCH: I understand that,
4 and disclosure -- I understand your argument.
5 MR. DREEBEN: Yes.
6 JUSTICE GORSUCH: But in order to
7 disclose, it anticipates necessarily certain
8 antecedent conduct.
9 MR. DREEBEN: Yes, it does, but -
10 JUSTICE GORSUCH: And you'd ask us to
11 ignore that, I think. Is that -- is that your
12 position?
13 MR. DREEBEN: Well, I think this
14 Court's case law provides a test that says that
15 if the activity that's within the focus of the
16 statute occurs in the United States, the fact
17 that there may be antecedent or other conduct
18 abroad doesn't detract from a domestic
19 application.
20 And I have an example that I think
21 will help illustrate that point. Suppose that
22 a defendant in federal court were convicted and
23 ordered to pay a fine and the defendant said, I
24 can't do that with my domestic assets. They're
25 all located abroad.
11
1 I am fairly confident that the courts
2 would say the obligation falls on you. How you
3 raise the money is your concern. It's not an
4 extraterritorial application of the statute to
5 say bring the money home and pay the fine.
6 And that's the same that we're asking
7 to happen with the warrant. In fact, the text
8 of the statute says nothing about
9 extraterritorial conduct.
10 JUSTICE SOTOMAYOR: Mr. Dreeben, I
11 don't know that you fairly answered Justice
12 Ginsburg's question.
13 This is a 1986 statute. The reality
14 in 1986, if you look at the statute and its
15 reference to stored records, to stored
16 communications, was -- it's a past technology,
17 old concept. But I think it's fair to say that
18 back then they were thinking that where these
19 materials were stored had a geographic
20 existence in the United States, not abroad or
21 nowhere else, and that they were protecting the
22 communications that were stored in particular
23 locations.
24 Things have changed. But what you're
25 asking us to do is to imagine what Congress
12
1 would have done or intended in a totally
2 different situation today. And the problem
3 that Justice Ginsburg alludes to is the fact
4 that, by doing so, we are trenching on the very
5 thing that our extraterritoriality doesn't want
6 to do, what our jurisprudence doesn't want to
7 do, which is to create international problems.
8 Now I understand there's a bill that's
9 being proposed by bipartisan senators that
10 would give you most of what you want but with
11 great protections against foreign conflicts.
12 There are limitations involving records that
13 are stored abroad.
14 Why shouldn't we leave the status quo
15 as it is and let Congress pass a bill in this
16 new age -
17 MR. DREEBEN: So the -
18 JUSTICE SOTOMAYOR: -- that addresses
19 the potential problems that your reading would
20 create?
21 MR. DREEBEN: So I've got to start
22 with the last part of your question and then
23 come back to the first because otherwise I'll
24 probably forget what the last part is.
25 There is not an international problem
13
1 here. This is largely a mirage that Microsoft
2 is seeking to create. For the 20 or so -
3 JUSTICE SOTOMAYOR: You mean all those
4 amici who have written complaining about how
5 this would conflict with so much foreign law.
6 We've got a bunch of amici briefs telling us
7 how much this conflicts.
8 MR. DREEBEN: No foreign government
9 has come to this Court saying that the order
10 that we seek would conflict with its law. The
11 State Department and the Office of
12 International Affairs in the Justice Department
13 have heard no complaints from foreign
14 governments about the way that we have
15 typically operated under 2703 for decades.
16 In fact, the complaints all run the
17 other way. The complaints are that when
18 foreign governments need information from U.S.
19 providers, they come here under a Mutual Legal
20 Assistance Treaty, an MLAT, and they depend on
21 the United States pursuant to a statute to go
22 into court, invoke 35 -- 2703 and seek the
23 information from the provider wherever it may
24 be located.
25 And the Microsoft decision has caused
14
1 grave interference with our ability to help our
2 foreign law enforcement partners enforce their
3 own laws. It is -- the Microsoft decision also
4 puts us out of compliance with our
5 international obligations.
6 The Budapest Cybercrime Treaty, which
7 is joined by over 50 nations, including most of
8 the European nations, requires courts in -- in
9 particular jurisdictions to have the authority
10 to require providers to furnish information in
11 response to court requests regardless of where
12 the information is stored.
13 That's Section 18.1a of the Budapest
14 Convention. So the international baseline here
15 is exactly what the government is arguing for,
16 and we are the ones who are really urging the
17 status quo.
18 JUSTICE SOTOMAYOR: Let's assume
19 because there's been a lot of back and forth,
20 and I -- I tend to disagree, there's an open
21 question on the Budapest Treaty, but putting
22 that disagreement aside, assuming the point
23 I've made, there is a bill. Can you tell me
24 where it is in the legislative process? It's
25 bipartisan. It's supported by the Department
15
1 of State and the Department of Justice.
2 It does deal with certain rights and
3 limitations to the access to this information
4 when it's stored in foreign locations. Why
5 shouldn't we wait for that bill?
6 MR. DREEBEN: Well, first of all, this
7 Court's duty is to interpret the statute under
8 its own statutory interpretation canons. I
9 don't think that any -
10 JUSTICE SOTOMAYOR: There's no circuit
11 split. We granted cert before a circuit split,
12 which is an unusual act to start with.
13 MR. DREEBEN: Well, there are a couple
14 of reasons for that. No other court that has
15 issued a written opinion since Microsoft has
16 agreed with the Second Circuit. And the Second
17 Circuit's decision has caused grave and
18 immediate harm to the government's ability to
19 enforce federal criminal law.
20 But as to the question about the CLOUD
21 Act, as it's called, it has been introduced.
22 It's not been marked up by any committee. It
23 has not been voted on by any committee. And it
24 certainly has not yet been enacted into law.
25 And I think this Court's normal
16
1 practice is to decide cases before it based on
2 the law as it exists, rather than waiting for
3 an uncertain legislative process.
4 And as to the -
5 JUSTICE KAGAN: Mr. Dreeben -
6 MR. DREEBEN: If I can just make one
7 final point on this.
8 JUSTICE KAGAN: Please.
9 MR. DREEBEN: As to the bill itself,
10 it does not retrench on the authority that the
11 government says is part of the legal fabric
12 here today. It actually endorses in an
13 unqualified manner the government's ability to
14 get information from a provider over whom it
15 has jurisdiction, regardless of the location of
16 the data.
17 It goes on to provide very useful
18 mechanisms for bilateral cooperation that will
19 facilitate other nations' ability to get
20 information from our providers and our ability
21 to get information from their providers with
22 safeguards.
23 But those are supplementary
24 protections that do not exist apart from the
25 fundamental 2703 obligation, which, I would
17
1 add, does have built-in protections to address
2 Justice Ginsburg's concerns.
3 Lower courts have confronted this
4 problem in a variety of other contexts. This
5 is not a new problem. In the banking area, the
6 government has been very active in putting
7 subpoenas on branch offices of foreign banks
8 that have access to -
9 JUSTICE GORSUCH: Mr. Dreeben, you
10 used the word subpoena, and -- and we've talked
11 about that a lot. And could you help me out
12 with the fact that when we're focusing on the
13 text, here the statute uses the word warrant,
14 which typically has a very limited and narrow
15 understanding territorially.
16 MR. DREEBEN: Yes.
17 JUSTICE GORSUCH: Unlike subpoenas.
19 JUSTICE GORSUCH: And elsewhere in the
20 statute Congress used the word subpoenas.
22 JUSTICE GORSUCH: So we know it knew
23 the difference.
25 JUSTICE GORSUCH: Help me out with
18
1 that.
2 MR. DREEBEN: Okay. So I'm glad that
3 you brought up the text, because I think the
4 text is actually the government's friend here.
5 What the statute does is create
6 obligations of disclosure. It puts an
7 obligation on a provider to make disclosure.
8 What a warrant does, if it's in its
9 ordinary form, under Rule 41 of the Federal
10 Rules of Criminal Procedure, apart from this
11 statute, a warrant is a authorization to a law
12 enforcement officer to go in and search.
13 Doesn't need the cooperation of anybody.
14 Doesn't put the obligations to do anything on
15 anybody else. It puts the government in the
16 driver's seat.
17 This statute says -
18 JUSTICE GORSUCH: It doesn't do that.
19 I got you. But it uses the word warrant. So
20 what are we supposed to make of that?
21 MR. DREEBEN: I think what you make of
22 it is that the structure of the statute
23 provides three mechanisms for the government to
24 obtain disclosure: A subpoena; a 2703(d)
25 order, which is the intermediate form of
19
1 process that's at issue in the Carpenter case;
2 and a warrant.
3 And those three different instruments
4 correlate with the different levels of
5 sensitivity of information that Congress
6 perceived and, therefore, it ratcheted up the
7 showing that the government had to make in
8 order to get the disclosure order.
9 And so instead of saying just go get a
10 warrant, it says get a warrant using the
11 procedures of Rule 41, not all of Rule 41. The
12 territorial limitations of Rule 41 are not
13 incorporated into the statute. In fact, the
14 statute has its own territorial provision which
15 provides for nationwide service of disclosure
16 orders.
17 And it goes on to specify that this
18 disclosure obligation applies regardless of the
19 instrument, be it subpoena, 2703, or a warrant.
20 It all falls on the provider to make
21 disclosure.
22 And I think that that's an important
23 fact because when you have an order to a
24 provider, it allows the provider to do what my
25 friend here did: Come into court and make an
20
1 ex-ante objection before the instrument is
2 executed.
3 With a warrant, parties don't get that
4 opportunity. Under United States versus
5 Grubbs, the government shows up with a warrant.
6 The citizen's obligation is to comply.
7 It also ensures that -- that the -
8 that the recipient has the obligation to raise
9 various objections about burdensomeness, which
10 are also features associated with subpoenas,
11 not warrants.
12 And, finally, it avoids the
13 intrusiveness of a warrant. A warrant allows
14 the government to just come right in. If we
15 had a warrant, and we could get a Rule 41
16 ordinary warrant if we wanted to, we would go
17 to Microsoft headquarters and ask the gentleman
18 sitting at the keyboard to step aside and sit
19 down and do the work ourselves.
20 But we don't do that under 2703. And
21 Congress didn't intend that we do that. What
22 Congress intended was that we have the ability
23 to compel providers to provide information.
24 And the warrant then addresses the
25 customer's privacy interests. So the court
21
1 below thought that two things were going on:
2 One was we were actually executing a warrant
3 overseas. That's not true. We're putting an
4 obligation on a domestic provider to comply
5 with a domestic court order with information
6 from wherever it's drawn.
7 And, second, the court below thought
8 that we were invading privacy overseas.
9 There are two fallacies I think in the
10 view that this is a case about privacy. It's
11 not a case about privacy.
12 The government has the gold standard
13 of an instrument to address privacy interests
14 here: a probable-cause-based warrant issued by
15 a judge that describes with particularity what
16 we want. That is the hallmark in our domestic
17 system of how privacy interests are addressed.
18 JUSTICE BREYER: Well, I don't -- I
19 don't know if you want to -
20 JUSTICE ALITO: Mr. Dreeben, do you
21 think that -- do you think there's anything -
22 that the Stored Communications Act prevents you
23 from obtaining this information in either of
24 the two conventional ways that you mentioned?
25 One, by getting a grand jury subpoena. If the
22
1 Stored Communications Act simply doesn't apply
2 here, could you go to a grand jury and get a
3 grand jury subpoena or, two, conduct the kind
4 of search that you just referred to? And if
5 you did that, would Microsoft have any
6 opportunity to contest that search?
7 MR. DREEBEN: So, if we got a ordinary
8 conventional warrant under Rule 41, Microsoft
9 does not have an ex-ante opportunity to contest
10 the search. The government goes in and it
11 takes control of what property it needs to in
12 order to conduct the search.
13 The grand jury subpoena, I think, is a
14 little bit of a more difficult question because
15 the question would be whether 2703 meant to
16 occupy the field in getting information from
17 providers or instead left us free to use grand
18 jury subpoenas in areas that aren't covered by
19 2703.
20 What is clear, I think, though, is
21 that 2703 was meant to build on categories of
22 existing instruments, plus adding a new one of
23 Congress's own device. The subpoena instrument
24 is useful for us in certain circumstances for
25 the content of information under the way that
23
1 Congress wrote the statute if we give notice to
2 the person whose privacy interests are
3 implicated.
4 It also allows us to get very basic
5 subscriber information. We don't have to go to
6 a court first. We just issue the instrument.
7 The provider has to make disclosures.
8 JUSTICE ALITO: Could I ask you one
9 other question? What is happening when these
10 orders are sought now outside of the Second
11 Circuit? I mean, there's been talk about
12 leaving things alone, but is the rest of the
13 country going -- are the judges everywhere in
14 the country going to follow what the Second
15 Circuit decided? Are they doing that, or are
16 they continuing to issue the kinds of orders
17 that were issued in the past?
18 MR. DREEBEN: Every district court
19 that has written an opinion outside of the
20 Second Circuit has rejected the Second
21 Circuit's approach, and the United States is
22 continuing to compel information from service
23 providers, regardless of where they store it.
24 And in the case of providers like
25 Google, algorithms enable them to move
24
1 information around the globe in order to
2 maximize the efficiency of their system. And
3 much of the information that we're getting is
4 coming from overseas. And we have heard no
5 protests from foreign governments.
6 JUSTICE ALITO: What is happening when
7 these district courts outside of the Second
8 Circuit are issuing these orders? The Internet
9 service providers are not appealing?
10 MR. DREEBEN: I think that in some
11 cases, there are appeals that are on hold
12 pending this Court's disposition of this issue,
13 so it's not going to go away. And if Congress
14 doesn't enact legislation, we will be here in
15 the exact position we are today, stymied in the
16 Second Circuit, but getting the exact same
17 information from providers all over the country
18 in the rest of the country. And it's
19 information that's extremely vital to criminal
20 law enforcement because so much criminal law
21 enforcement today is international.
22 JUSTICE BREYER: I see the problem, I
23 think, but what I don't see yet -- maybe I just
24 have to go back and study it -- is -- is your
25 answer to Justice Gorsuch's question, which has
25
1 been bothering me on both sides. They're with
2 you on this, you know, but I look at the
3 language of the statute and the statute says:
4 A government entity may require the disclosure
5 by a provider of electronic communication only
6 pursuant to a warrant issued using the
7 procedures described in the Federal Rules of
8 Criminal Procedure. Right?
9 MR. DREEBEN: Yes.
10 JUSTICE BREYER: That's what it says.
12 JUSTICE BREYER: So then I go to the
13 Federal Rules of Criminal Procedure, and there
14 the first thing I discover is you ask a
15 magistrate, and it says: A magistrate judge
16 with authority in the district has authority to
17 issue a warrant to search for and seize a
18 person or property located within the district.
19 All right? Now, so that's what you
20 did. You went to this person, a magistrate, I
21 think.
22 MR. DREEBEN: No, that's not what we
23 did.
24 JUSTICE BREYER: Oh, you went to the
25 district judge?
26
1 MR. DREEBEN: We went to the district
2 court -
3 JUSTICE BREYER: So it's the same
4 problem. It's the same -- isn't it?
5 MR. DREEBEN: Well, it's a slightly
6 different problem, Justice Breyer, and I think
7 that I can help clear up a little bit of this.
8 JUSTICE BREYER: Yeah. Okay.
9 MR. DREEBEN: There are two angles of
10 it. The most basic one is that the Stored
11 Communications Act itself has a jurisdictional
12 provision that allows the government to go to a
13 variety of places to get warrants. It can go
14 to the district where the crime is being
15 investigated -
16 JUSTICE BREYER: Yeah.
17 MR. DREEBEN: -- and that court has
18 nationwide authority. It's not trammeled by
19 Rule 45.
20 JUSTICE BREYER: But is that what you
21 did? What did you do here?
22 MR. DREEBEN: We did that here. We
23 did that here. This is an investigation being
24 conducted out of one district -
25 JUSTICE BREYER: Okay. Okay. Second
27
1 question is -- maybe it's not this case, but
2 what happens if you go to Microsoft and you
3 ask, say, some for -- for some bank records
4 that are in Italy and, in fact, Italy does have
5 a law, we imagine, which says absolutely no
6 bank record can be taken by any other person
7 without some special thing under the MLAT or
8 something.
9 MR. DREEBEN: Yes.
10 JUSTICE BREYER: And what happens
11 then?
12 MR. DREEBEN: So this is a very common
13 problem, and it's why I -- I -
14 JUSTICE BREYER: All right. So what
15 is the answer?
16 MR. DREEBEN: The answer is that
17 courts conduct a comity analysis. They look to
18 the Restatement of Foreign Relations -
19 JUSTICE BREYER: Okay. So the answer
20 is that, which many amici suggest to us, that
21 what should be done in such a case is you go to
22 the magistrate or the judge and you say, judge,
23 I want you to look at the factors of comity.
24 And one of them will be, if there is -
28
1 JUSTICE BREYER: -- which you say is
2 not here -
3 MR. DREEBEN: Yes.
4 JUSTICE BREYER: -- this Italian law,
5 if there is -
6 MR. DREEBEN: Yes.
7 JUSTICE BREYER: -- which says you
8 can't bring it.
9 MR. DREEBEN: Yes.
10 JUSTICE BREYER: So you -- so perhaps
11 there's agreement, we'll see, about what should
12 be done, and this new law proposes that.
13 MR. DREEBEN: Well, I think what's
14 more -
15 JUSTICE BREYER: Right.
16 MR. DREEBEN: -- radical is that
17 Microsoft's position is that no court ever gets
18 to ask the question. If the data is stored
19 overseas, we're just out of luck. We can't
20 even ask a court for an order that would
21 require its production.
22 They haven't asserted that it would
23 violate foreign law in order for them to comply
24 with the order that we obtained in this case.
25 Nobody has actually pointed concretely to a -
29
1 JUSTICE KAGAN: But you are agreeing,
2 Mr. Dreeben, that a court in that circumstance
3 should conduct a comity analysis?
4 MR. DREEBEN: Yes.
5 JUSTICE KAGAN: And if you are, what
6 would that look like and when would it occur?
7 MR. DREEBEN: Well, in our view, it
8 would occur at the contempt stage, after the
9 government procures an order, if it seeks to
10 impose sanctions on a party for noncompliance.
11 That's roughly the model that this Court used
12 in Societe Internationale versus Rogers, a 1958
13 decision that squarely posed the question of
14 whether a party over whom a U.S. court had
15 jurisdiction could be ordered to produce
16 documents that were located in Switzerland when
17 Swiss law had a blocking statute.
18 And the Court had no problem with the
19 issuance of the order, but it had a great deal
20 of problem with failure to conduct any comity
21 analysis that took into account possible
22 conflicts with foreign law.
23 And that same framework was applied by
24 lower courts when they encountered grand jury
25 subpoenas seeking financial information located
30
1 in foreign countries -- states, and there was
2 an assertion of a conflict with foreign law.
3 So there's nothing new about this
4 problem. It's a problem that courts have been
5 grappling with for decades, quite successfully.
6 And what's more remarkable is it's never come
7 up under the Stored Communications Act. We
8 have had no protests, either before or after
9 Microsoft, and no litigation by a party, either
10 before or after Microsoft, that said this order
11 would violate foreign law.
12 JUSTICE KAGAN: May I take you back to
13 the language of the statute? Most of your
14 argument in your brief focuses on 2703. And
15 you say -
17 JUSTICE KAGAN: -- we should just
18 focus on 2703. And I'm -- I'm -- I'm not going
19 to argue with you one way or the other on that,
20 but I want to get your view, actually, of what
21 the focus of 2701 and 2702 is.
22 MR. DREEBEN: So -
23 JUSTICE KAGAN: If you do expand your
24 field of vision and -- you know, what would you
25 say there Congress was -
31
1 MR. DREEBEN: So 2701 is a statute
2 that blocks access. It's a protection against
3 hackers. And we think that is a domestically
4 focused statute, but it would reach foreign
5 conduct that hacked into a computer located in
7 JUSTICE KAGAN: The computer is
8 here -
9 MR. DREEBEN: Yes.
10 JUSTICE KAGAN: -- but the hacker is
11 overseas?
12 MR. DREEBEN: Yes. Yes. Because the
13 conduct that's the focus of 2701 would be here.
14 2702 is a much more difficult statute. We have
15 not taken a position in this Court on its
16 focus. It prohibits certain divulgences of
17 information by providers.
18 We've been willing to assume for
19 purposes of this case that its focus mirrors
20 2703 and addresses only domestic disclosures,
21 but that only puts us in the same position as
22 Microsoft, with one difference. Microsoft's
23 theory is that if it moves information abroad,
24 since storage is the only thing that counts,
25 it's then free to disclose that information to
32
1 the world, to sell it, to do anything it wants
2 free from U.S. law.
3 The only thing that Microsoft adds to
4 that picture is that the only person who can't
5 get it is the United States under lawful
6 process. And we think that that's wrong and
7 that the Court should reverse that judgment.
8 If I could save the rest of my time
9 for rebuttal.
10 CHIEF JUSTICE ROBERTS: Thank you,
11 counsel.
12 Mr. Rosenkranz.
13 ORAL ARGUMENT OF E. JOSHUA ROSENKRANZ
14 ON BEHALF OF THE RESPONDENT
15 MR. ROSENKRANZ: Mr. Chief Justice,
16 and may it please the Court:
17 I'll start where Justice Kennedy
18 started, which is where we all agree that the
19 Stored Communications Act is limited to the
20 United States. Yet the government wants to use
21 the act to unilaterally reach into a foreign
22 land to search for, copy, and import private
23 customer correspondence physically stored in a
24 digital lockbox, any foreign computer where
25 it's protected by foreign law.
33
1 Now that is a foreign scenario, not a
2 --
3 JUSTICE GINSBURG: Mr. Rosenkranz,
4 we're told, and -- and correct me if it's
5 incorrect, that until this very case Microsoft
6 was complying with these disclosure orders.
7 This case is the first time it
8 objected, but there were past efforts of the
9 same kind and Microsoft disclosed the contents
10 of the communications. Is that so?
11 MR. ROSENKRANZ: Yes, Your Honor, but
12 what -- I just -- I want to make sure that you
13 -- that the Court understands, Justice
14 Ginsburg, that this is a very new phenomenon,
15 this whole notion of cloud storage in another
16 country.
17 We didn't start doing it until 2010.
18 So the fact that we analyzed what our legal
19 obligations were and realized, wait a minute,
20 this is actually an extraterritorial act that
21 is unauthorized by the U.S. Government, the
22 fact that we were sober-minded about it
23 shouldn't be held against us.
24 CHIEF JUSTICE ROBERTS: Well, but it
25 -- it seems to me you're assuming the answer to
34
1 the question. The government's position, of
2 course, is it's not an extraterritorial act.
3 They're going to Redmond, Washington, and
4 saying you have to turn this over to us.
5 It's not the government's fault that
6 it's located overseas. I suspect the
7 government doesn't care. Just like any other
8 subpoena where you go, and Mr. Dreeben used the
9 example of funds, but it could be any other
10 evidence.
11 And if there is a particular objection
12 by the government where the information is
13 located, they're free to raise that and the
14 government will have to deal with that, but I
15 gather that's not the situation here.
16 MR. ROSENKRANZ: Well, Your Honor,
17 first, it is the situation here, but let me
18 answer the question directly.
19 The reason that this is an
20 extraterritorial act goes right to the heart of
21 why we have a presumption against
22 extraterritoriality. No one disputes that
23 countries across the world believe that they
24 have the sovereignty and the sovereign right to
25 pass their own laws governing the access to
35
1 e-mails stored on their soil.
2 And here we are reaching into their
3 lands and imposing our U.S. position on who
4 gets access to e-mails on their soil.
5 JUSTICE KENNEDY: What -- why should
6 we have a binary choice between a focus on the
7 location of the data and the location of the
8 disclosure? Aren't there some other factors,
9 where the owner of the e-mail lives or where
10 the service provider has its headquarters?
11 MR. ROSENKRANZ: No, Justice -
12 JUSTICE KENNEDY: Or do we have -
13 we're forced to this binary choice?
14 MR. ROSENKRANZ: Your Honor, that is a
15 consequence of this Court's analysis in
16 Morrison, which no one is challenging. But,
17 so, yes, you've got to figure out what the
18 focus is at step 2.
19 No one's arguing for any focus other
20 than the government's argument that it focuses
21 on disclosure and our argument that it focuses
22 on storage. And I want to be sure to get to
23 that argument.
24 If you -- if you look at this statute,
25 the focus is on the storage. This is the
36
1 Stored Communications Act. At the most basic
2 level, that's what the focus is. And it's more
3 specifically on securing communications sitting
4 in storage.
5 Congress confronted this brave new
6 world of people entrusting their communications
7 to third-party storage providers. It wanted to
8 make sure that Americans felt comfortable
9 putting their communications there.
10 JUSTICE ALITO: Mr. Rosenkranz, let me
11 -- this is what troubles me. It would be good
12 if Congress enacted legislation that modernized
13 this, but in the interim, something has to be
14 done.
15 So what happens in this situation? I
16 mean, there's an American citizen who's being
17 investigated for crimes committed in the United
18 States. The government shows probable cause
19 that there is evidence of this crime in e-mails
20 that are in the possession of an American
21 Internet service provider. And there they have
22 an urgent need for the information.
23 But the provider has chosen to store
24 the data overseas and, in fact, in some
25 instances, has actually broken it up into
37
1 shards so that it's stored not just in one
2 foreign country but in a number of foreign
3 countries.
4 Now what -- what happens in that
5 situation? There is no way in which the
6 information can be obtained except by pursuing
7 MLATs against multiple countries, a process
8 that could -- that will take many months, maybe
9 years? What happens?
10 MR. ROSENKRANZ: Well, Justice Alito,
11 first, that is not so far as certainly -- so
12 far as this record is concerned and not so far
13 as any record before any court is concerned
14 what actually happens.
15 No one actually breaks up the e-mail
16 into shards, certainly not in this case.
17 That's not what Microsoft does. And that is
18 not, it turns out, what Google does either -
19 excuse me, that is not what the other service
20 provider does either in the context of these
21 other cases that are being heard here.
22 JUSTICE ALITO: Well, we were told
23 that that's what Gmail does. That's not
24 correct?
25 MR. ROSENKRANZ: No, Your Honor,
38
1 that's not correct.
2 JUSTICE ALITO: All right. Well, all
3 right. The service provider has chosen to
4 store it overseas. There's no way to get the
5 information, other than through these -- these
6 very time-consuming MLAT procedures?
7 MR. ROSENKRANZ: Well, Your Honor, the
8 way to get the information is through MLATs,
9 and the only evidence in this record about
10 MLATs is that MLATs do work. If it's urgent
11 for the government, the other governments
12 respond urgently.
13 JUSTICE BREYER: Just -- there are two
14 parts to this in my mind. One is the language,
15 which I'll have to work my way through. You
16 heard the answer to that.
17 The other is a practical way of
18 dealing with the foreign law. Now the
19 government suggested what's impractical about
20 this, in any situation where, say, Microsoft
21 thinks that there really is a problem here
22 because of a foreign law, which might forbid it
23 or a variety of reasons, what you do is you -
24 Microsoft goes to the magistrate and says,
25 look, there's a problem here because of the law
39
1 of other countries, because of this, because of
2 that, and the magistrate takes that into
3 account.
4 That sounds to me like a -- and then
5 maybe Congress will pass this and we'll have
6 standards in it and it'll be much more helpful.
7 But -- but even without that, what's wrong with
8 that?
9 MR. ROSENKRANZ: The problem with
10 that, Justice Breyer, is that that's not the
11 statute Congress passed.
12 The statute Congress passed is a
13 statute that does not call for this sort of
14 weighing -
15 JUSTICE BREYER: All right. You're
16 giving a conceptual answer, which I think is
17 fine, but -- but I want to know, if the
18 language permits it, can we read this statute
19 to adapt to the modern condition and, if we
20 can, then shouldn't we do it that way, because
21 it would be practical. Everybody would get a
22 fair shot. You'd take foreign interests into
23 account. Maybe you'd use Aerospatiale
24 standards.
25 One brief tells us they're not good
40
1 enough, but it didn't say what we should use,
2 but -- but the -- the -- the -- you see my
3 question?
4 MR. ROSENKRANZ: I do understand your
5 question, Justice Breyer, and the answer is
6 that is simply not the statute that Congress
7 wrote. And the job of this Court is to
8 interpret the statute Congress wrote, rather
9 than innovating and adopting its own new
10 standard.
11 Now, by the way, the CLOUD Act that -
12 that has gotten some conversation this morning,
13 does have various factors that might be
14 weighed. That's Congress's decision if
15 Congress wants to do that and it's a decision
16 that applies in certain -
17 JUSTICE SOTOMAYOR: Mr. Rosenkranz -
18 JUSTICE KENNEDY: Under this act,
19 could you voluntarily disclose this to the
20 government, or would that be a violation of
21 2702?
22 MR. ROSENKRANZ: It would not be a
23 violation of 2702 if we voluntarily did
24 something, but it would be a violation of our
25 obligations to our customers.
41
1 JUSTICE KENNEDY: Well, if that's so,
2 then why can't the government just obtain this
3 by a subpoena?
4 MR. ROSENKRANZ: Well, so that is
5 another big question. This is a statute in
6 which the -- or a scenario in which the
7 government has used a warrant.
8 A subpoena could not reach a lot of
9 these e-mails because a subpoena would not
10 reach e-mails that are in storage for less than
11 180 days under this statute and, under a Sixth
12 Circuit decision, couldn't reach them at all,
13 that is, individual's private -
14 JUSTICE KENNEDY: You could
15 voluntarily disclose, but they couldn't have a
16 subpoena?
17 MR. ROSENKRANZ: I'm sorry?
18 JUSTICE KENNEDY: It seems odd to me
19 that if -- you could voluntarily disclose, but
20 they couldn't ask for a subpoena. That doesn't
21 quite mesh, does it?
22 MR. ROSENKRANZ: Well, Your Honor, my
23 point is -
24 JUSTICE KENNEDY: I recognize we have
25 a difficult statute here.
42
1 MR. ROSENKRANZ: Your Honor, if we
2 voluntarily disclosed, it would be a violation
3 of our obligations to our customer. It would
4 also, by the way, in this context, be a
5 violation of European law.
6 Now I just -- I want to back up,
7 though. There are a lot of -
8 JUSTICE GORSUCH: Mr. Rosenkranz, do
9 you agree that after 180 days the government
10 could get this material with a subpoena?
11 MR. ROSENKRANZ: Absolutely not, Your
12 Honor. That is -- I -- I agree with you that
13 that is what the statute says, but it raises
14 the same exact problems of extraterritoriality
15 because -- I mean, the only thing that we
16 wouldn't be able to do is rely on the word
17 "warrant" and all of the territorial
18 implications of that word, but all of our other
19 answers would be the same.
20 The truth is other countries -
21 JUSTICE GINSBURG: So what actions -
22 what actions would Microsoft have to take
23 extraterritorial -- extraterritorially to
24 comply with the -- in this case, the warrant?
25 What would Microsoft have to do outside the
43
1 United States?
2 MR. ROSENKRANZ: Well, so let's start
3 with the fact that these e-mails are stored
4 outside the United States. They are stored in
5 Ireland. And the government is asking us to go
6 and fetch them from Ireland.
7 They are subject to protections in
8 Ireland. So what happens in Ireland? What
9 happens in Ireland is really a remote control
10 is actually working a mechanism where these
11 e-mails are stored on a hard drive in a
12 facility under protection of foreign law, and a
13 -- a reader, which is a physical piece of
14 hardware, reads the digital ones and zeros off
15 of it, which are also physical manifestations.
16 It's then packaged up and it runs through
17 Ireland on hard wires and over the Atlantic.
18 This is a quintessentially extraterritorial
19 act.
20 Now I was just saying there are a lot
21 of complicated questions in this case, but the
22 decisive point and the point that Justice
23 Gorsuch was making earlier is that the e-mails
24 are stored in Ireland and the DEA is forcing us
25 to fetch them.
44
1 JUSTICE SOTOMAYOR: I'm sorry, I don't
2 -- perhaps it's my technological ignorance.
3 How is it in a locked box? If I'm trying to
4 mentally imagine this, what has to happen? You
5 know, I press a button in the U.S. and it
6 accesses directly the information in Ireland,
7 or does something have to happen in Ireland?
8 MR. ROSENKRANZ: Something has to
9 happen in Ireland. These e-mails, Justice
10 Sotomayor, exist only in Ireland. And what
11 happens in -- and it exists in a four -
12 JUSTICE KENNEDY: Something has to
13 happen electronically or with human
14 intervention?
15 MR. ROSENKRANZ: No -- no human
16 intervention -- there's a human -
17 JUSTICE KENNEDY: So someway you push
18 the button in Washington?
19 MR. ROSENKRANZ: Yes.
20 JUSTICE KENNEDY: Then, obviously,
21 something happens in Ireland on the computer.
22 But does some person have to be there?
23 MR. ROSENKRANZ: A human being doesn't
24 have to do it. It is a robot. And if you -
25 if you sent a robot into a foreign land to
45
1 seize evidence, it would certainly implicate
2 foreign interests.
3 And so if the DEA -- just let me just
4 draw out this example.
5 JUSTICE SOTOMAYOR: I -- I'm sorry,
6 I'm -- I'm now -- I guess my imagination is
7 running wild.
8 (Laughter.)
9 JUSTICE SOTOMAYOR: How -- how does -
10 who tells the robot what to do and what does
11 the robot do?
12 MR. ROSENKRANZ: A human being in,
13 let's say, Redmond tells the robot -- it sends
14 the robot instructions. And, by the way, the
15 computer scientists' amicus brief spells this
16 out in great detail.
17 JUSTICE SOTOMAYOR: Okay.
18 MR. ROSENKRANZ: What happens then?
19 It interfaces with a hardware computer in a
20 hardware facility. It spins a disk. It looks
21 for the e-mail on that disk after verifying
22 certain protocols. It reads physical
23 manifestations on magnets of the ones and
24 zeros, which are like letters in the alphabet.
25 And then it copies them onto another disk. It
46
1 then safeguards them and sends them back here.
2 Now, if the DEA sat at a computer in
3 D.C. and hacked into our servers in Ireland,
4 everyone agrees that that would be a search and
5 seizure in Ireland. If the government did what
6 Mr. Dreeben described, executed a search
7 warrant itself, pushed us aside from our -
8 from the operator in Redmond, pushed them aside
9 and said I'll take it from here, that search
10 would be in Ireland.
11 All that's happening now is that the
12 government is requiring us to do something that
13 it would want to do -
14 JUSTICE GORSUCH: Do you dispute that
15 the government could issue a warrant to go
16 ahead and do exactly that in Redmond?
17 MR. ROSENKRANZ: The government could
18 issue a warrant -- I believe that's -
19 JUSTICE GORSUCH: Push you aside and
20 do the search in Redmond?
21 MR. ROSENKRANZ: This warrant
22 authorizes it. There's nothing -
23 JUSTICE GORSUCH: No, could -- could
24 the government do that outside of the Stored
25 Communications Act? Could the government issue
47
1 a classic search warrant, go into Redmond, and
2 conduct a search on the computers in Redmond?
3 MR. ROSENKRANZ: It would be an
4 extraterritorial search; it would, therefore,
5 be illegal. But if the government did that,
6 there is no question that that search is going
7 on in Ireland and the government -
8 JUSTICE ALITO: And what could -- and
9 what could you do about it?
10 MR. ROSENKRANZ: Well, we could -- we
11 could sue the government and say that you can't
12 come onto our property and -- and engage in
13 these unconstitutional -- in these
14 extraterritorial acts. But my -- my point here
15 is -
16 JUSTICE ALITO: What kind of -
17 CHIEF JUSTICE ROBERTS: Counsel -
18 JUSTICE ALITO: -- what kind of suit
19 would that be? But anyway, never mind.
20 CHIEF JUSTICE ROBERTS: -- there -
21 there is nothing under your position that
22 prevents Microsoft from storing United States
23 communications, every one of them, either in
24 Canada or Mexico or anywhere else, and then
25 telling their customers: Don't worry if the
48
1 government wants to get access to your
2 communications; they won't be able to, unless
3 they go through this MLAT procedure, which -
4 which is costly and time-consuming. Could you
5 provide that service to your customers?
6 MR. ROSENKRANZ: Is it theoretically
7 possible, yes, but it would never happen. And
8 the reason it would never happen is that we
9 have 200 million active customers here in the
10 United States. They -- this is really a
11 tail -
12 CHIEF JUSTICE ROBERTS: Well -- I'm
13 sorry. In -- in what way is their service
14 seriously compromised if the server is
15 overseas?
16 MR. ROSENKRANZ: Well, there's a basic
17 physical property at issue here that
18 underscores that this is not just some random
19 act of putting e-mails in one place or another.
20 There's this physical phenomenon called
21 latency. It actually slows down the e-mail
22 service for those 200 -
23 CHIEF JUSTICE ROBERTS: Okay. So you
24 -- so they have to wait a little longer, I
25 assume quite -- quite a short while longer, but
49
1 they're protected from any government intrusion
2 into their e-mail communications.
3 MR. ROSENKRANZ: Your Honor, these
4 facilities are half a billion dollar
5 facilities. We build them in order to make
6 sure that our customers get the best possible
7 service. Even a microsecond -- even a fraction
8 of a second's delay actually costs us
9 customers. And so we would -
10 CHIEF JUSTICE ROBERTS: Well, but you
11 might gain customers if you can assure them, no
12 matter what happens, the government won't be
13 able to get access to their e-mails.
14 MR. ROSENKRANZ: Your Honor, so this
15 is the -- the tail-wagging-the-dog problem. We
16 have 200 million customers who are relying on
17 the best service here in the United States that
18 can possibly be brought.
19 The government serves on us, say -- I
20 mean, these -- these statistics are public,
21 60,000 requests for information in the United
22 States. The percentage of those that relate to
23 e-mails abroad, it's 54 of them out of 60,000.
24 It's 99.9 -
25 CHIEF JUSTICE ROBERTS: I know, but my
50
1 basic point, and I'm not sure that you've
2 answered it, is that there is nothing that
3 prevents Microsoft -- in other words, an e-mail
4 from me to somebody on the other side of the
5 building that is going to be stored somewhere
6 else would be protected from disclosure, if
7 people, the government, wanted access in the
8 normal course of a criminal investigation where
9 they have a warrant establishing probable
10 cause. From here to the next block, that is
11 going to be protected from disclosure to the
12 government?
13 MR. ROSENKRANZ: And, Your Honor, my
14 answer is an equally practical one, and that
15 is, if customers do not want their e-mails to
16 be seized by the government, they don't use
17 Microsoft's services. They don't use
18 Microsoft's services whether they are in Canada
19 or Mexico because those are available by MLATs.
20 What do they do? They use services
21 that are sold specifically with the -- with the
22 promise that we have no U.S. presence, and,
23 therefore, you can trust us to keep it under
24 lock and key from the U.S. Government.
25 By the way, you probably all have cell
51
1 phones with this feature. It is a feature that
2 scrambles your instant messaging and that
3 scrambles it in a way that no government can
4 get their hands on it.
5 So it's not like this is a device that
6 is available only through Microsoft's services.
7 If people want to break the law and put their
8 e-mails outside the reach of the U.S.
9 Government, they simply wouldn't use Microsoft.
10 JUSTICE ALITO: Is it correct that we
11 don't know the nationality of the individual
12 who has this e-mail account?
13 MR. ROSENKRANZ: Yes, that is correct,
14 Justice Alito.
15 JUSTICE ALITO: Well, if this person
16 is not Irish and Ireland played no part in your
17 decision to store the information there and
18 there's nothing that Ireland could do about it
19 if you chose tomorrow to move it someplace
20 else, it is a little difficult for me to see
21 what Ireland's interest is in this.
22 MR. ROSENKRANZ: Your Honor, Ireland's
23 interests are the same interest of any
24 sovereign who protects information stored where
25 -- within their domain.
52
1 We protect information stored within
2 the United States and we don't actually care
3 whose information it is because we have laws
4 that guard the information for everyone.
5 JUSTICE ALITO: And I guess the point
6 is when we're talking about this information,
7 which, all right, yes, it -- it physically
8 exists on one or more computers somewhere, but
9 it doesn't have a presence anyplace in the
10 sense that a physical object has a presence
11 someplace.
12 And the Internet service providers can
13 put it anywhere they want and move it around at
14 will. The whole idea of territoriality is
15 strained. Wouldn't you agree with that?
16 MR. ROSENKRANZ: I would not agree
17 with that, Justice Alito, and here is why:
18 First I disagree with the premise.
19 This -- these e-mails have a physical
20 presence. They are actually on a hard drive.
21 Are they movable? Yes. But letters are
22 movable as well.
23 And they are under protection of
24 foreign laws, which, by the way, are really
25 quite robust. So moving -- moving just back to
53
1 the -- to the basic question of focus, the
2 common thread that ties together all of these
3 cross-reference provisions of the SCA, the
4 common thread is stored communications that are
5 in electronic storage.
6 That is what ties these provisions
7 together and that is the focus of -
8 JUSTICE KAGAN: Well, why do we need
9 to look for a common thread? Why shouldn't we
10 just look at 2703 and ask what Congress was
11 trying to do in that section?
13 even if you focus on 2703, and isolate it from
14 everything else, the first thing I would say is
15 even the government agrees that that's not what
16 you're supposed to do. You are at a minimum
17 allowed to look at how it relates to other
18 provisions.
19 The focus is still on protecting
20 e-mails in electronic storage from government
21 intrusion. It is not about -
22 JUSTICE KAGAN: Well, how do we know,
23 really? I mean, it seems as though we have a
24 choice between two things: one is what
25 Congress is doing is it's regulating the
54
1 disclosure in the United States of electronic
2 communications that are stored everywhere in
3 the world. And that's what the government is
4 saying.
5 And you're essentially saying the
6 opposite. What Congress was doing was to
7 regulate the disclosure anywhere in the world
8 of electronic communications that are stored in
10 I'm not sure how I pick between those
11 two from the face of the statute, whether it's
12 2703 or whether it's the broader statute. So
13 give me your best shot.
14 (Laughter.)
15 MR. ROSENKRANZ: Okay. So I -- I will
16 give you, if I may, I'll give you a couple
17 shots.
18 If we're only focusing on 2703,
19 Congress passed the 2703 because it wanted to
20 limit law enforcement access to a specific
21 category of e-mails. And that is what?
22 E-mails that are in electronic storage.
23 Congress was concerned that e-mails
24 shared with a service provider would lose all
25 Fourth Amendment protection under the
55
1 third-party doctrine. Congress did not need to
2 pass 2703 to author disclosure by a warrant.
3 Law enforcement already had access by a
4 warrant.
5 The focus was on enhancing the
6 security of e-mails that were in electronic
7 storage.
8 Now, back up and relate the various
9 provisions, 2701, 2702, 2703. I was saying
10 earlier at the most basic level this is the
11 Stored Communications Act. It's about securing
12 communications that are sitting in storage.
13 I was describing earlier this brave
14 new world that Congress was facing where it
15 wanted people to -- to understand that their
16 e-mails in electronic storage were safe.
17 CHIEF JUSTICE ROBERTS: If I -- but
18 you focus on the storage. 2703 is headed
19 Required Disclosure of Customer Communications
20 Or Records. And Congress put that heading in
21 the Act when it amended it.
22 And it seems to me that the government
23 might have a strong position there that the
24 statute focuses on disclosure. And disclosure
25 takes place in Washington, not in Ireland.
56
2 2703 -- this goes back to Justice Kagan's
3 question -- it cannot be read in isolation from
4 2702. 2701 and 2702 are with 2703.
5 CHIEF JUSTICE ROBERTS: Well, 2702
6 says "voluntary disclosure of customer
7 communications or records." And that, too,
8 takes place in Washington, not Ireland.
9 MR. ROSENKRANZ: And so the answer,
10 Your Honor, is that -- that the Act was first
11 and fundamentally about protecting the
12 communications that were in electronic storage,
13 and so 2703 pairs with 2702.
14 Now, 2702 is about making sure -- so
15 2702, as the government has suggested, is about
16 making sure that the electronic -- the
17 electronic communications in electronic storage
18 are protected.
19 And 2703 is simply an exception to
20 2702.
21 JUSTICE BREYER: If your -- I'm going
22 to ask a technical thing to help me with that,
23 and do it no more than 15 seconds.
24 MR. ROSENKRANZ: Yes, Justice Breyer.
25 JUSTICE BREYER: What I did is I -- I
57
1 looked at the warrant which is in the record.
2 And it's signed by James Francis, Magistrate
3 Judge, Southern District, New York. Is that
4 right?
5 MR. ROSENKRANZ: Yes, Your Honor.
6 JUSTICE BREYER: Okay. So then I went
7 over to Rule 41, and I assumed it fell within
8 B, A, or, what is it, it's -- it's B-1. Am I
9 right or do you know that well enough in your
10 head?
12 JUSTICE BREYER: Okay.
13 MR. ROSENKRANZ: Let me hear you say
14 the question again.
15 JUSTICE BREYER: If it fell within
16 B-1, it says that Mr. Francis, Judge Francis,
17 has authority to issue a warrant to search for
18 and seize a property located within the
19 district.
20 So that's how I got in by -- into my
21 linguistic problem of -- what's the answer?
22 MR. ROSENKRANZ: Well, Your Honor, 27
23 -- the government has invoked 2703(a), which is
24 --
25 JUSTICE BREYER: Yeah -
58
1 MR. ROSENKRANZ: -- the provision that
2 requires a warrant.
3 JUSTICE BREYER: -- and it says you're
4 "only pursuant to a warrant issued using the
5 procedures described in the Federal Rules of
6 Criminal Procedure."
8 JUSTICE BREYER: So I said what is a
9 warrant? It is judge Francis's warrant. He is
10 in the Southern District of New York. I went
11 to Rule 41, and there 41-B-1, which -
12 MR. ROSENKRANZ: 41, yes.
13 JUSTICE BREYER: Yeah, so-- so what's
14 the answer to that? The answer says that Judge
15 Francis -- this says that Judge Francis has
16 authority to issue a warrant to search for
17 property in New York.
18 MR. ROSENKRANZ: Yeah, I -- I agree
19 with you, Justice Breyer. And -- and warrants
20 are distinctly territorial devices. They are
21 not extraterritorial devices.
22 So if we're looking at federal rule -
23 JUSTICE KAGAN: I think the question
24 --
25 JUSTICE BREYER: But you didn't make
59
1 much of a point of this in your brief.
2 (Laughter.)
3 JUSTICE BREYER: And so I suspect that
4 -- that -- that it just can't be that easy,
5 this case.
6 MR. ROSENKRANZ: No, Justice Breyer, I
7 think we -- we certainly tried to make a point
8 in our brief.
9 JUSTICE ALITO: No, but Mr. Rosenkranz
10 -
11 MR. ROSENKRANZ: But this incorporates
12 -
13 JUSTICE ALITO: -- I think the
14 question is this: If this information were in
15 Redmond, Washington, would the magistrate judge
16 be unable to issue the order because Redmond,
17 Washington is not in New York? That's the
18 question.
19 JUSTICE BREYER: That's right.
20 MR. ROSENKRANZ: Oh, he would not be
21 able to issue the warrant. And it is not
22 because Redmond, Washington is not in New York.
23 It'S because warrants, although there is
24 nationwide ability to reach evidence within the
25 United States, warrants are not
60
1 extraterritorial.
2 Now, just by way of -- of wrapping up,
3 the government asks this Court to grant it an
4 extraordinary power, and it's a power that
5 Congress did not think it was granting law
6 enforcement in 1986, and certainly did not
7 intend to grant to every police officer and
8 every sheriff's deputy anywhere in the country.
9 Back then, if the police needed to
10 gather evidence from all over the world, they
11 would have to engage with law enforcement
12 everywhere else in those countries.
13 The Internet makes it possible now to
14 reach a lifetime of correspondence for billions
15 of people all across the world, but only
16 Congress can grant that power.
17 And this goes to Justice Ginsburg's
18 point. Think about the questions that the
19 Court has been wrestling with today. It's
20 about the architecture of other providers.
21 It's -- there were conversations about where
22 the Internet is headed. There is conversations
23 about whether this will kill the tech sector,
24 how much of an international consensus there is
25 about the sovereignty of data.
61
1 These are all questions that only
2 Congress can answer. Meanwhile, this Court's
3 job is to defer, to defer to Congress to take
4 the path that is least likely to create
5 international tensions.
6 And if you try to tinker with this,
7 without the tools that -- that only Congress
8 has, you are as likely to break the cloud as
9 you are to fix it.
10 If there are no further questions, I
11 -- I thank the Court for its attention. And we
12 respectfully request that the Court affirm the
13 Second Circuit.
15 counsel.
16 Two minutes, Mr. Dreeben.
17 REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN
18 ON BEHALF OF THE PETITIONER
19 MR. DREEBEN: I have four quick
20 points, two technical and two substantive.
21 The technical point first is, Justice
22 Breyer, you asked what the authority of the
23 district court is. The authority of the
24 district court, in this case for a magistrate
25 judge, comes from, first, 2703, which entitles
62
1 a court of competent jurisdiction to issue the
2 relevant warrant in this case.
3 This is on page 6A of the government's
4 appendix to its brief. There is then a
5 definition of a court of competent jurisdiction
6 on page 12A of the appendix to the government's
7 brief, which defines it to include any
8 magistrate judge that has jurisdiction over the
9 offense being investigated, as well as several
10 other bases.
11 This was a Patriot Act amendment
12 designed to expand the authority of courts to
13 issue orders.
14 The second technical question is the
15 one asked by Justice Kennedy on whether
16 Microsoft could voluntarily disclose this
17 information to the government. It couldn't.
18 It's barred by 2702 from making disclosures,
19 except as authorized by that statute.
20 And one of the exceptions is that the
21 government can proceed under 2703 to compel the
22 same information. So Microsoft is basically
23 claiming the authority, once it moves the
24 information overseas, to unilaterally disclose
25 it to anyone. But if it's in, you know,
63
1 responding to an order that's issued by the
2 United States, it says it has no obligation to
3 produce the information.
4 And then the substantive points here
5 are that this statute does, indeed, focus on
6 disclosure and not storage. 2703 begins by
7 requiring disclosure as to the variety of
8 categories of information that providers may
9 have, and it backs it up with at least three
10 more provisions that address disclosure.
11 Section E says there is no cause of
12 action for disclosing in accordance with the
13 statute. Section F allows the government to
14 issue preservation orders of the information to
15 be disclosed. And Section G discusses -- may I
16 complete the sentence?
17 CHIEF JUSTICE ROBERTS: Sure.
18 MR. DREEBEN: -- discusses the
19 execution of the warrant and it provides that
20 the government need not be there, which makes
21 this an instrument, not like a warrant that
22 allows us to conduct a search, but like a
23 subpoena or discovery order that places
24 obligations on parties over whom the Court has
25 jurisdiction. Thank you.
64
2 counsel. The case is submitted.
3 (Whereupon, at 11:22 a.m., the case
4 was submitted.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
65
�
account [7] 5:6,9 6:12 29:21 39:3, answer [15] 24:25 27:15,16,19 33: backdrop [2] 7:7 8:2
1 23 51:12 25 34:18 38:16 39:16 40:5 50:14 backs [1] 63:9
10:21 [2] 1:15 3:2 achieves [1] 5:19 56:9 57:21 58:14,14 61:2 bank [2] 27:3,6
11:22 [1] 64:3 across [2] 34:23 60:15 answered [2] 11:11 50:2 banking [1] 17:5
12A [1] 62:6 Act [27] 3:12,20 4:21,22 7:6,20 15: answers [1] 42:19 banks [1] 17:7
15 [1] 56:23 12,21 21:22 22:1 26:11 30:7 32: antecedent [2] 10:8,17 barred [1] 62:18
17-2 [1] 3:4 19,21 33:20 34:2,20 36:1 40:11, anticipates [1] 10:7 based [1] 16:1
18.1a [1] 14:13 18 43:19 46:25 48:19 55:11,21 56: anybody [2] 18:13,15 baseline [1] 14:14
180 [2] 41:11 42:9 10 62:11 anyplace [1] 52:9 bases [1] 62:10
1958 [2] 7:9 29:12 action [1] 63:12 anyway [1] 47:19 basic [8] 7:10 23:4 26:10 36:1 48:
1986 [6] 6:3,11,20 11:13,14 60:6 actions [2] 42:21,22 apart [2] 16:24 18:10 16 50:1 53:1 55:10
1987 [1] 7:10 active [2] 17:6 48:9 appealing [1] 24:9 basically [2] 8:11 62:22
2 activity [2] 9:17 10:15 appeals [1] 24:11 begins [1] 63:6
2 35:18
[1] acts [1] 47:14 APPEARANCES [1] 1:17 behalf [8] 1:20,22 2:4,7,10 3:8 32:
20 [1] 13:2 actual [1] 9:25 appendix [2] 62:4,6 14 61:18
200 [3] 48:9,22 49:16 actually [17] 3:17 4:12,19 16:12 application [7] 7:21 8:4,7,25 9:8 believe [2] 34:23 46:18
2010 33:17
[1] 18:4 21:2 28:25 30:20 33:20 36: 10:19 11:4 below [2] 21:1,7
25 37:14,15 43:10 48:21 49:8 52: applied [1] 29:23 best [3] 49:6,17 54:13
2018 [1] 1:11
27 [2] 1:11 57:22 2,20 applies [2] 19:18 40:16 between [4] 4:23 35:6 53:24 54:
2701 30:21 31:1,13 55:9 56:4
[5] adapt [1] 39:19 apply [1] 22:1 10
2702 [13] 30:21 31:14 40:21,23 55: add [1] 17:1 approach [1] 23:21 big [1] 41:5
9 56:4,4,5,13,14,15,20 62:18
adding [1] 22:22 approached [1] 9:23 bilateral [1] 16:18
2703 [27] 3:11 13:15,22 16:25 19: address [3] 17:1 21:13 63:10 architecture [1] 60:20 bill [5] 12:8,15 14:23 15:5 16:9
19 20:20 22:15,19,21 30:14,18 31:
addressed [1] 21:17 area [1] 17:5 billion [1] 49:4
20 53:10,13 54:12,18,19 55:2,9,18
addresses [3] 12:18 20:24 31:20 areas [1] 22:18 billions [1] 60:14
56:2,4,13,19 61:25 62:21 63:6
adds [1] 32:3 aren't [2] 22:18 35:8 binary [2] 35:6,13
2703(a [1] 57:23 adopting [1] 40:9 argue [1] 30:19 bipartisan [2] 12:9 14:25
2703(d 18:24[1] Aerospatiale [2] 7:9 39:23 arguing [3] 8:6 14:15 35:19 bit [2] 22:14 26:7
Affairs [1] 13:12 argument [13] 1:14 2:2,5,8 3:4,7 block [1] 50:10
3 affirm [1] 61:12 10:4 30:14 32:13 35:20,21,23 61: blocking [1] 29:17
3 [1] 2:4 age [1] 12:16 17 blocks [1] 31:2
32 [1] 2:7 agree [9] 6:2,19 7:19 32:18 42:9, arguments [1] 6:5 both [3] 5:19 7:11 25:1
35 [1] 13:22 12 52:15,16 58:18 around [2] 24:1 52:13 bothering [1] 25:1
agreed [1] 15:16 aside [5] 14:22 20:18 46:7,8,19 box [1] 44:3
4 agreeing [1] 29:1 asks [1] 60:3 branch [1] 17:7
41 [9] 18:9 19:11,11,12 20:15 22:8 agreement [1] 28:11 aspect [1] 5:7 brave [3] 6:16 36:5 55:13
57:7 58:11,12 agrees [2] 46:4 53:15 asserted [1] 28:22 break [2] 51:7 61:8
41-B-1 [1] 58:11 ahead [1] 46:16 assertion [1] 30:2 breaks [1] 37:15
45 [1] 26:19 algorithms [1] 23:25 assets [1] 10:24 BREYER [39] 21:18 24:22 25:10,
5 Alito [18] 9:4 21:20 23:8 24:6 36: Assistance [1] 13:20 12,24 26:3,6,8,16,20,25 27:10,14,
10 37:10,22 38:2 47:8,16,18 51: associated [1] 20:10 19 28:1,4,7,10,15 38:13 39:10,15
50 [1] 14:7
10,14,15 52:5,17 59:9,13 assume [3] 14:18 31:18 48:25 40:5 56:21,24,25 57:6,12,15,25
54 49:23
[1]
allowed [1] 53:17 assumed [1] 57:7 58:3,8,13,19,25 59:3,6,19 61:22
6 allowing [1] 5:8 assuming [2] 14:22 33:25 brief [7] 30:14 39:25 45:15 59:1,8
60,000 [2] 49:21,23 allows [6] 19:24 20:13 23:4 26:12 assure [1] 49:11 62:4,7
61 [1] 2:10 63:13,22 Atlantic [1] 43:17 briefs [1] 13:6
6A [1] 62:3 alludes [1] 12:3 attention [1] 61:11 bring [2] 11:5 28:8
alone [1] 23:12 author [1] 55:2 broader [2] 6:1 54:12
9 alphabet [1] 45:24 authority [11] 14:9 16:10 25:16,16 broken [1] 36:25
99.9 [1] 49:24 already [1] 55:3 26:18 57:17 58:16 61:22,23 62:12, brought [2] 18:3 49:18
A alternative [2] 3:22 4:14 23 Budapest [3] 14:6,13,21
although [1] 59:23 authorization [1] 18:11 build [2] 22:21 49:5
a.m [3] 1:15 3:2 64:3
amended [2] 6:21 55:21 authorize [1] 4:9 building [1] 50:5
ability [7] 14:1 15:18 16:13,19,20
Amendment [2] 54:25 62:11 authorized [2] 6:23 62:19 built-in [1] 17:1
20:22 59:24
American [2] 36:16,20 authorizes [2] 5:22 46:22 bunch [1] 13:6
able [4] 42:16 48:2 49:13 59:21
Americans [1] 36:8 available [2] 50:19 51:6 burdensomeness [1] 20:9
above-entitled [1] 1:13
amici [3] 13:4,6 27:20 avoids [1] 20:12 button [2] 44:5,18
abroad [10] 8:20 9:10,14,15 10:18,
amicus [1] 45:15 away [1] 24:13
25 11:20 12:13 31:23 49:23
analogous [1] 5:10
C
absolutely [2] 27:5 42:11
analysis [4] 27:17 29:3,21 35:15
B call [1] 39:13
access [10] 15:3 17:8 31:2 34:25 B-1 [2] 57:8,16 called [2] 15:21 48:20
analyzed 33:18 [1]
35:4 48:1 49:13 50:7 54:20 55:3 back [13] 7:7 8:22 11:18 12:23 14: came [1] 1:13
angles [1] 26:9
accesses [1] 44:6 19 24:24 30:12 42:6 46:1 52:25 Canada [2] 47:24 50:18
another [4] 33:15 41:5 45:25 48:
accordance [1] 63:12 55:8 56:2 60:9 cannot [1] 56:3
19

Sheet 1 10:21 - cannot
66
�
canons [1] 15:8 compliance [1] 14:4 counts [1] 31:24 devices [2] 58:20,21
care [2] 34:7 52:2 complicated [1] 43:21 couple [3] 6:19 15:13 54:16 difference [2] 17:23 31:22
Carpenter [1] 19:1 comply [5] 7:15 20:6 21:4 28:23 course [2] 34:2 50:8 different [4] 12:2 19:3,4 26:6
Case [23] 3:4 4:22 7:24 9:12 10:14 42:24 COURT [50] 1:1,14 3:10,14 6:6,20, difficult [4] 22:14 31:14 41:25 51:
19:1 21:10,11 23:24 27:1,21 28: complying [1] 33:6 22 7:12,13 8:10,10,12,12,24 9:5, 20
24 31:19 33:5,7 37:16 42:24 43: compromised [1] 48:14 23 10:22 13:9,22 14:11 15:14 19: digital [2] 32:24 43:14
21 59:5 61:24 62:2 64:2,3 computer [9] 5:12,13 31:5,7 32:24 25 20:25 21:5,7 23:6,18 26:2,17 directly [3] 4:5 34:18 44:6
cases [3] 16:1 24:11 37:21 44:21 45:15,19 46:2 28:17,20 29:2,11,14,18 31:15 32: disagree [2] 14:20 52:18
categories [2] 22:21 63:8 computers [4] 8:20,22 47:2 52:8 7,16 33:13 37:13 40:7 60:3,19 61: disagreement [1] 14:22
category [1] 54:21 concept [1] 11:17 11,12,23,24 62:1,5 63:24 disclose [7] 10:7 31:25 40:19 41:
cause [3] 36:18 50:10 63:11 conceptual [1] 39:16 Court's [9] 7:7 8:2,17 10:14 15:7, 15,19 62:16,24
caused [2] 13:25 15:17 concern [1] 11:3 25 24:12 35:15 61:2 disclosed [4] 9:16 33:9 42:2 63:
cell [1] 50:25 concerned [3] 37:12,13 54:23 courts [8] 11:1 14:8 17:3 24:7 27: 15
cert [1] 15:11 concerns [1] 17:2 17 29:24 30:4 62:12 disclosing [1] 63:12
certain [6] 10:7 15:2 22:24 31:16 concession [1] 7:24 covered [1] 22:18 disclosure [32] 3:13,18 4:1,6,21 5:
40:16 45:22 concretely [1] 28:25 create [5] 12:7,20 13:2 18:5 61:4 4,21 7:14 10:4 18:6,7,24 19:8,15,
certainly [6] 15:24 37:11,16 45:1 condition [1] 39:19 crime [3] 3:15 26:14 36:19 18,21 25:4 33:6 35:8,21 50:6,11
59:7 60:6 conduct [21] 3:13 5:23 8:14,15,18 crimes [1] 36:17 54:1,7 55:2,19,24,24 56:6 63:6,7,
chain [1] 9:17 9:1,2,7,9 10:8,17 11:9 22:3,12 27: criminal [8] 15:19 18:10 24:19,20 10
challenging [1] 35:16 17 29:3,20 31:5,13 47:2 63:22 25:8,13 50:8 58:6 disclosures [3] 23:7 31:20 62:18
changed [1] 11:24 conducted [1] 26:24 cross-reference [1] 53:3 discover [1] 25:14
CHIEF [16] 3:3,9 32:10,15 33:24 confident [1] 11:1 custody [1] 5:17 discovery [2] 4:8 63:23
47:17,20 48:12,23 49:10,25 55:17 conflict [3] 13:5,10 30:2 customer [4] 32:23 42:3 55:19 56: discusses [2] 63:15,18
56:5 61:14 63:17 64:1 conflicts [3] 12:11 13:7 29:22 6 disk [3] 45:20,21,25
choice [3] 35:6,13 53:24 confronted [2] 17:3 36:5 customer's [1] 20:25 disposition [1] 24:12
chose [2] 4:17 51:19 Congress [34] 6:9,16,23 7:6 11:25 customers [9] 40:25 47:25 48:5,9 dispute [1] 46:14
chosen [3] 7:16 36:23 38:3 12:15 17:20 19:5 20:21,22 23:1 49:6,9,11,16 50:15 disputes [1] 34:22
circuit [10] 15:10,11,16 23:11,15, 24:13 30:25 36:5,12 39:5,11,12 Cybercrime [1] 14:6 distinction [1] 4:23
20 24:8,16 41:12 61:13 40:6,8,15 53:10,25 54:6,19,23 55: distinctly [1] 58:20
Circuit's [2] 15:17 23:21 1,14,20 60:5,16 61:2,3,7
D district [13] 23:18 24:7 25:16,18,
circumstance [1] 29:2 Congress's [2] 22:23 40:14 D.C [3] 1:10,19 46:3 25 26:1,14,24 57:3,19 58:10 61:
circumstances [1] 22:24 consensus [1] 60:24 data [5] 16:16 28:18 35:7 36:24 60: 23,24
citizen [1] 36:16 consequence [1] 35:15 25 divorce [1] 9:21
citizen's [1] 20:6 construing [1] 6:20 dating [1] 7:7 divulgences [1] 31:16
claiming [1] 62:23 contempt [1] 29:8 days [2] 41:11 42:9 doctrine [1] 55:1
classic [1] 47:1 content [1] 22:25 DEA [3] 43:24 45:3 46:2 documents [1] 29:16
classically [2] 3:12 4:7 contents [1] 33:9 deal [3] 15:2 29:19 34:14 doing [5] 12:4 23:15 33:17 53:25
clear [3] 5:21 22:20 26:7 contest [2] 22:6,9 dealing [1] 38:18 54:6
clearly [1] 8:4 context [3] 5:2 37:20 42:4 decades [2] 13:15 30:5 dollar [1] 49:4
CLOUD [4] 15:20 33:15 40:11 61: contexts [1] 17:4 decide [1] 16:1 domain [1] 51:25
8 continuing [2] 23:16,22 decided [1] 23:15 domestic [15] 3:13 7:11 8:14,15,
clouds [1] 6:3 control [3] 7:17 22:11 43:9 decision [12] 7:3,8,10 8:2 13:25 17 9:1,2,7,8 10:18,24 21:4,5,16
cognizance [1] 9:13 Convention [1] 14:14 14:3 15:17 29:13 40:14,15 41:12 31:20
collected [1] 9:14 conventional [2] 21:24 22:8 51:17 domestically [1] 31:3
come [7] 12:23 13:9,19 19:25 20: conversation [1] 40:12 decisions [3] 8:9,10,17 done [4] 12:1 27:21 28:12 36:14
14 30:6 47:12 conversations [2] 60:21,22 decisive [1] 43:22 down [3] 4:9 20:19 48:21
comes [1] 61:25 convicted [1] 10:22 defendant [2] 10:22,23 draw [1] 45:4
comfortable [1] 36:8 cooperation [2] 16:18 18:13 defer [2] 61:3,3 drawn [1] 21:6
coming [1] 24:4 copies [1] 45:25 defines [1] 62:7 DREEBEN [71] 1:18 2:3,9 3:6,7,9
comity [4] 27:17,23 29:3,20 copy [1] 32:22 definition [1] 62:5 4:2,18 5:24,25 6:18 7:22 8:1,24 9:
committed [1] 36:17 CORPORATION [2] 1:6 3:5 delay [1] 49:8 11,19,22 10:5,9,13 11:10 12:17,21
committee [2] 15:22,23 correct [6] 7:19 33:4 37:24 38:1 Department [5] 1:19 13:11,12 14: 13:8 15:6,13 16:5,6,9 17:9,16,18,
common [4] 27:12 53:2,4,9 51:10,13 25 15:1 21,24 18:2,21 21:20 22:7 23:18
communication [1] 25:5 correlate [1] 19:4 depend [1] 13:20 24:10 25:9,11,22 26:1,5,9,17,22
Communications [26] 3:12 11:16, correspondence [2] 32:23 60:14 Deputy 1:18 60:8
[2]
27:9,12,16,25 28:3,6,9,13,16 29:2,
22 21:22 22:1 26:11 30:7 32:19 costly [1] 48:4 describe [1] 3:25 4,7 30:16,22 31:1,9,12 34:8 46:6
33:10 36:1,3,6,9 46:25 47:23 48:2 costs [1] 49:8 described [3] 25:7 46:6 58:5 61:16,17,19 63:18
49:2 53:4 54:2,8 55:11,12,19 56:7, couldn't [4] 41:12,15,20 62:17 describes [1] 21:15 drive [2] 43:11 52:20
counsel [4] 32:11 47:17 61:15 64: describing 55:13
[1]
12,17 driver's [1] 18:16
compel [3] 20:23 23:22 62:21 2 designed [1] 62:12
duty [1] 15:7
countries [7] 30:1 34:23 37:3,7 39: detail 45:16
[1]
competent [2] 62:1,5
complaining [1] 13:4 1 42:20 60:12 determining [1] 8:25 E
complaints [3] 13:13,16,17 country [7] 23:13,14 24:17,18 33: detract [1] 10:18 e-mail [7] 35:9 37:15 45:21 48:21
complete [1] 63:16 16 37:2 60:8 device [2] 22:23 51:5 49:2 50:3 51:12

Sheet 2 canons - e-mail
67
�
e-mails [22] 8:2235:1,4 36:19 41: 42:14 Francis's [1] 58:9 hacked [2] 31:5 46:3
9,10 43:3,11,23 44:9 48:19 49:13, extraterritorially [1] 42:23 free [4] 22:17 31:25 32:2 34:13 hacker [1] 31:10
23 50:15 51:8 52:19 53:20 54:21, extremely [1] 24:19 friend [2] 18:4 19:25 hackers [1] 31:3
22,23 55:6,16 function [2] 4:4,7 half [2] 9:21 49:4
earlier [3] 43:23 55:10,13
F functions [2] 4:4 5:19 hallmark [1] 21:16
easy [1] 59:4 fabric [1] 16:11
fundamental [2] 4:23 16:25 hand [1] 5:6
efficiency [1] 24:2 face [1] 54:11 fundamentally [1] 56:11 hands [2] 4:10 51:4
efforts [1] 33:8 facilitate [1] 16:19 funds [1] 34:9 happen [9] 8:20,21 11:7 44:4,7,9,
either [9] 6:6,6 9:9 21:23 30:8,9 facilities [3] 4:10 49:4,5 furnish [1] 14:10 13 48:7,8
37:18,20 47:23 facility [2] 43:12 45:20 further [1] 61:10 happening [3] 23:9 24:6 46:11
electronic [12] 25:5 53:5,20 54:1, facing [1] 55:14 happens [12] 27:2,10 36:15 37:4,9,
8,22 55:6,16 56:12,16,17,17 fact [13] 9:13 10:16 11:7 12:3 13: G 14 43:8,9 44:11,21 45:18 49:12
electronically [1] 44:13 16 17:12 19:13,23 27:4 33:18,22 gain [1] 49:11 hard [3] 43:11,17 52:20
elsewhere [1] 17:19 36:24 43:3 gather [2] 34:15 60:10 hardware [3] 43:14 45:19,20
enable [1] 23:25 factors [3] 27:23 35:8 40:13 General [1] 1:18 harm [1] 15:18
enact [1] 24:14 failure [1] 29:20 gentleman [1] 20:17 head [1] 57:10
enacted [2] 15:24 36:12 fair [2] 11:17 39:22 geographic [1] 11:19 headed [2] 55:18 60:22
encountered [1] 29:24 fairly [2] 11:1,11 gets [4] 5:5,16 28:17 35:4 heading [1] 55:20
endorses [1] 16:12 fallacies [1] 21:9 getting [4] 21:25 22:16 24:3,16 headquarters [2] 20:17 35:10
enforce [2] 14:2 15:19 falls [2] 11:2 19:20 GINSBURG [7] 5:25 6:18 8:19 12: hear [2] 3:3 57:13
enforcement [8] 14:2 18:12 24:20, far [3] 37:11,12,12 3 33:3,14 42:21 heard [5] 6:3 13:13 24:4 37:21 38:
21 54:20 55:3 60:6,11 fault [1] 34:5 Ginsburg's [3] 11:12 17:2 60:17 16
engage [2] 47:12 60:11 feature [2] 51:1,1 give [5] 12:10 23:1 54:13,16,16 heart [1] 34:20
enhancing [1] 55:5 features [1] 20:10 giving [1] 39:16 held [1] 33:23
enough [2] 40:1 57:9 February [1] 1:11 glad [1] 18:2 help [6] 10:21 14:1 17:11,25 26:7
ensures [1] 20:7 federal [7] 10:22 15:19 18:9 25:7, globe [1] 24:1 56:22
entitles [1] 61:25 13 58:5,22 Gmail [1] 37:23 helpful [1] 39:6
entity [1] 25:4 fell [2] 57:7,15 gold [1] 21:12 hold [1] 24:11
entrusting [1] 36:6 felt [1] 36:8 Google [2] 23:25 37:18 home [1] 11:5
equally [1] 50:14 fetch [2] 43:6,25 GORSUCH [17] 9:11,20,24 10:3,6, Honor [19] 33:11 34:16 35:14 37:
ESQ [2] 1:21 2:6 field [2] 22:16 30:24 10 17:9,17,19,22,25 18:18 42:8 25 38:7 41:22 42:1,12 49:3,14 50:
essentially [2] 5:10 54:5 figure [1] 35:17 43:23 46:14,19,23 13 51:22 53:12 56:1,10 57:5,11,
establishing [1] 50:9 final [1] 16:7 Gorsuch's [1] 24:25 22 58:7
European [2] 14:8 42:5 finally [1] 20:12 got [6] 12:21 13:6 18:19 22:7 35: human [5] 44:13,15,16,23 45:12
even [7] 9:9 28:20 39:7 49:7,7 53: financial [1] 29:25 17 57:20 hybrid [1] 4:3
13,15 fine [3] 10:23 11:5 39:17 gotten [1] 40:12
Everybody [1] 39:21 first [16] 3:4 4:4 6:19 9:21 12:23 governing [1] 34:25 I
everyone [2] 46:4 52:4 15:6 23:6 25:14 33:7 34:17 37:11 government [68] 3:20 4:9,16,20, idea [1] 52:14
everything [1] 53:14 52:18 53:14 56:10 61:21,25 25 5:5,6,9,11,16,23 13:8 14:15 16: identify [1] 9:25
everywhere [3] 23:13 54:2 60:12 fix [1] 61:9 11 17:6 18:15,23 19:7 20:5,14 21: ignorance [1] 44:2
evidence [6] 34:10 36:19 38:9 45: focus [22] 9:6,6,12 10:1,15 30:18, 12 22:10 25:4 26:12 29:9 32:20 ignore [1] 10:11
1 59:24 60:10 21 31:13,16,19 35:6,18,19,25 36:2 33:21 34:7,12,14 36:18 38:11,19 illegal [1] 47:5
ex-ante [2] 20:1 22:9 53:1,7,13,19 55:5,18 63:5 40:20 41:2,7 42:9 43:5 46:5,12,15, illustrate [1] 10:21
exact [3] 24:15,16 42:14 focused [1] 31:4 17,24,25 47:5,7,11 48:1 49:1,12, imagination [1] 45:6
exactly [2] 14:15 46:16 focuses [5] 3:12 30:14 35:20,21 19 50:7,12,16,24 51:3,9 53:15,20 imagine [3] 11:25 27:5 44:4
example [3] 10:20 34:9 45:4 55:24 54:3 55:22 56:15 57:23 60:3 62: immediate [1] 15:18
except [2] 37:6 62:19 focusing [2] 17:12 54:18 17,21 63:13,20 implicate [1] 45:1
exception [1] 56:19 follow [1] 23:14 government's [9] 3:19 15:18 16: implicated [1] 23:3
exceptions [1] 62:20 forbid [1] 38:22 13 18:4 34:1,5 35:20 62:3,6 implications [1] 42:18
excuse [1] 37:19 forced [1] 35:13 governments [4] 13:14,18 24:5 import [1] 32:22
executed [2] 20:2 46:6 forcing [1] 43:24 38:11 important [1] 19:22
executes [1] 5:6 foreign [30] 9:2 12:11 13:5,8,13,18 grab [1] 4:25 impose [1] 29:10
executing [1] 21:2 14:2 15:4 17:7 24:5 27:18 28:23 grand [6] 21:25 22:2,3,13,17 29:24 imposing [1] 35:3
execution [1] 63:19 29:22 30:1,2,11 31:4 32:21,24,25 grant [3] 60:3,7,16 impractical [1] 38:19
exist [3] 6:4 16:24 44:10 33:1 37:2,2 38:18,22 39:22 43:12 granted [1] 15:11 include [1] 62:7
existence [1] 11:20 44:25 45:2 52:24 granting [1] 60:5 including [1] 14:7
existing [1] 22:22 forget [1] 12:24 grappling [1] 30:5 incorporated [1] 19:13
exists [3] 16:2 44:11 52:8 form [2] 18:9,25 grave [2] 14:1 15:17 incorporates [1] 59:11
expand [2] 30:23 62:12 forth [1] 14:19 great [3] 12:11 29:19 45:16 incorrect [1] 33:5
extraordinary [1] 60:4 four [2] 44:11 61:19 Grubbs [1] 20:5 indeed [1] 63:5
extraterritorial [15] 7:20 8:4,7 9:3 Fourth [1] 54:25 guard [1] 52:4 individual [4] 5:11,14 7:13 51:11
11:4,9 33:20 34:2,20 42:23 43:18 fraction [1] 49:7 guess [2] 45:6 52:5 individual's [1] 41:13
framework [1] 29:23 information [54] 3:14 4:6 5:1,18 6:
47:4,14 58:21 60:1
Francis [5] 57:2,16,16 58:15,15
H 25 7:3,14,16 8:13 9:14 13:18,23
extraterritoriality [3] 12:5 34:22
Sheet 3 e-mails - information
68
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14:10,12 15:3 16:14,20,21 19:5 42:5 43:12 51:7 54:20 55:3 60:5, mentally [1] 44:4
20:23 21:5,23 22:16,25 23:5,22
J 11 mentioned [1] 21:24
24:1,3,17,19 29:25 31:17,23,25 James [1] 57:2 lawful [1] 32:5 mesh [1] 41:21
34:12 36:22 37:6 38:5,8 44:6 49: job [2] 40:7 61:3 laws [4] 14:3 34:25 52:3,24 messaging [1] 51:2
21 51:17,24 52:1,3,4,6 59:14 62: joined [1] 14:7 least [2] 61:4 63:9 Mexico [2] 47:24 50:19
17,22,24 63:3,8,14 JOSHUA [3] 1:21 2:6 32:13 leave [3] 6:15,22 12:14 MICHAEL [5] 1:18 2:3,9 3:7 61:17
innovating [1] 40:9 judge [13] 21:15 25:15,25 27:22,22 leaving [1] 23:12 microsecond [1] 49:7
innovation [1] 6:10 57:3,16 58:9,14,15 59:15 61:25 left [1] 22:17 MICROSOFT [27] 1:6 3:5 7:2 13:1,
instances [1] 36:25 62:8 Legal [3] 13:19 16:11 33:18 25 14:3 15:15 20:17 22:5,8 27:2
instant [1] 51:2 judges [1] 23:13 legislation [2] 24:14 36:12 30:9,10 31:22 32:3 33:5,9 37:17
instead [2] 19:9 22:17 judgment [1] 32:7 legislative [2] 14:24 16:3 38:20,24 42:22,25 47:22 50:3 51:
instructions [1] 45:14 jurisdiction [7] 7:12 16:15 29:15 less [1] 41:10 9 62:16,22
instrument [10] 4:3,24 5:2 6:23 62:1,5,8 63:25 letters [2] 45:24 52:21 Microsoft's [6] 4:10 28:17 31:22
19:19 20:1 21:13 22:23 23:6 63: jurisdictional [1] 26:11 level [2] 36:2 55:10 50:17,18 51:6
21 jurisdictions [1] 14:9 levels [1] 19:4 might [4] 38:22 40:13 49:11 55:23
instruments [2] 19:3 22:22 jurisprudence [1] 12:6 lifetime [1] 60:14 million [2] 48:9 49:16
intend [2] 20:21 60:7 jury [6] 21:25 22:2,3,13,18 29:24 likely [2] 61:4,8 mind [2] 38:14 47:19
intended [2] 12:1 20:22 Justice [148] 1:19 3:3,9,17 4:2,12 limit [1] 54:20 minimum [1] 53:16
interest [2] 51:21,23 5:24,25 6:18 7:18,22,23 8:19 9:4, limitations [3] 12:12 15:3 19:12 minute [1] 33:19
interests [8] 6:12 20:25 21:13,17 11,20,23 10:3,6,10 11:10,11 12:3, limited [2] 17:14 32:19 minutes [1] 61:16
23:2 39:22 45:2 51:23 18 13:3,12 14:18 15:1,10 16:5,8 line [1] 8:11 mirage [1] 13:1
interfaces [1] 45:19 17:2,9,17,19,22,25 18:18 21:18,20 linguistic [1] 57:21 mirrors [1] 31:19
interference [1] 14:1 23:8 24:6,22,25 25:10,12,24 26:3, litigation [1] 30:9 MLAT [4] 13:20 27:7 38:6 48:3
interim [1] 36:13 6,8,16,20,25 27:10,14,19 28:1,4,7, little [4] 22:14 26:7 48:24 51:20 MLATs [5] 37:7 38:8,10,10 50:19
intermediate [1] 18:25 10,15 29:1,5 30:12,17,23 31:7,10 lives [1] 35:9 model [1] 29:11
international [10] 7:11 8:18 12:7, 32:10,15,17 33:3,13,24 35:5,11,12 located [9] 10:25 13:24 25:18 29: modern [1] 39:19
25 13:12 14:5,14 24:21 60:24 61: 36:10 37:10,22 38:2,13 39:10,15 16,25 31:5 34:6,13 57:18 modernized [1] 36:12
5 40:5,17,18 41:1,14,18,24 42:8,21 location [3] 16:15 35:7,7 money [2] 11:3,5
Internationale [2] 7:8 29:12 43:22 44:1,9,12,17,20 45:5,9,17 locations [2] 11:23 15:4 months [1] 37:8
Internet [5] 24:8 36:21 52:12 60: 46:14,19,23 47:8,16,17,18,20 48: lock [1] 50:24 morning [2] 3:4 40:12
13,22 12,23 49:10,25 51:10,14,15 52:5, lockbox [1] 32:24 Morrison [2] 8:2 35:16
interpret [2] 15:7 40:8 17 53:8,22 55:17 56:2,5,21,24,25 locked [1] 44:3 most [6] 12:10 14:7 26:10 30:13
interpretation [1] 15:8 57:6,12,15,25 58:3,8,13,19,23,25 longer [2] 48:24,25 36:1 55:10
intervention [2] 44:14,16 59:3,6,9,13,19 60:17 61:14,21 62: look [14] 5:18 6:9 9:5,24 11:14 25: movable [2] 52:21,22
introduced [1] 15:21 15 63:17 64:1 2 27:17,23 29:6 35:24 38:25 53:9, move [4] 7:3 23:25 51:19 52:13
intrusion [2] 49:1 53:21 K 10,17 moves [2] 31:23 62:23
intrusiveness [1] 20:13 KAGAN [12] 16:5,8 29:1,5 30:12, looked [1] 57:1 moving [2] 52:25,25
invading [1] 21:8 17,23 31:7,10 53:8,22 58:23
looking [1] 58:22 much [9] 6:10 13:5,7 24:3,20 31:
investigated [3] 26:15 36:17 62:9 Kagan's [1] 56:2 looks [1] 45:20 14 39:6 59:1 60:24
investigation [2] 26:23 50:8 keep [1] 50:23 lose [1] 54:24 multiple [1] 37:7
invoke [1] 13:22 KENNEDY [15] 7:18,22,23 32:17 lot [5] 14:19 17:11 41:8 42:7 43:20 must [3] 7:15 9:9,14
invoked [1] 57:23 35:5,12 40:18 41:1,14,18,24 44:
lower [3] 8:10 17:3 29:24 Mutual [1] 13:19
involving [1] 12:12 luck [1] 28:19
Ireland [21] 8:21 43:5,6,8,8,9,17,
12,17,20 62:15 N
24 44:6,7,9,10,21 46:3,5,10 47:7
key [1] 50:24 M narrow [1] 17:14
keyboard [1] 20:18 made [3] 6:6 7:2 14:23 nationality [1] 51:11
51:16,18 55:25 56:8
keyboards [1] 4:11 magistrate [10] 25:15,15,20 27:22 nations [2] 14:7,8
Ireland's [2] 51:21,22 kill [1] 60:23
Irish [1] 51:16 38:24 39:2 57:2 59:15 61:24 62:8 nations' [1] 16:19
kind [5] 6:3 22:3 33:9 47:16,18 magnets [1] 45:23 nationwide [3] 19:15 26:18 59:24
isn't [2] 6:13 26:4 kinds [1] 23:16
isolate [1] 53:13 manifestations [2] 43:15 45:23 necessarily [1] 10:7
isolation [1] 56:3 L manner [1] 16:13 need [6] 13:18 18:13 36:22 53:8
issuance [1] 29:19 land [2] 32:22 44:25 many [2] 27:20 37:8 55:1 63:20
issue [16] 19:1 23:6,16 24:12 25: lands [1] 35:3 marked [1] 15:22 needed [1] 60:9
17 46:15,18,25 48:17 57:17 58:16 language [6] 5:20 9:24 25:3 30:13 material [1] 42:10 needs [2] 5:17 22:11
59:16,21 62:1,13 63:14 38:14 39:18

materials [3] 3:22,24 11:19 never [4] 30:6 47:19 48:7,8
issued [6] 15:15 21:14 23:17 25:6 laptop 5:12,15,16
[3] matter [2] 1:13 49:12 New [17] 1:21,21 6:16 12:16 17:5
58:4 63:1 largely [1] 13:1 maximize [1] 24:2 22:22 28:12 30:3 33:14 36:5 40:9
issues [2] 7:13 8:12 last [2] 12:22,24 mean [8] 8:20 9:17 13:3 23:11 36: 55:14 57:3 58:10,17 59:17,22
issuing [1] 24:8 latency 48:21
[1] 16 42:15 49:20 53:23 next [1] 50:10
it'll [1] 39:6 Laughter [3] 45:8 54:14 59:2 meaning [1] 4:15 Nobody [1] 28:25
Italian [1] 28:4 law [36] 7:4,4,7,11 8:16,18 10:14 meant [2] 22:15,21 noncompliance [1] 29:10
Italy [2] 27:4,4 13:5,10 14:2 15:19,24 16:2 18:11

Meanwhile [1] 61:2 none [1] 8:5
itself [3] 16:9 26:11 46:7 24:20,20 27:5 28:4,12,23 29:17,

mechanism [1] 43:10 normal [2] 15:25 50:8
22 30:2,11 32:2,25 38:18,22,25
mechanisms [2] 16:18 18:23 nothing [10] 6:8,13 7:3,4 11:8 30:

Sheet 4 information - nothing
69
�
3 46:22 47:21 50:2 51:18 39:1 42:18,20 50:3,4 53:17 60:20 7 60:18 61:21 38:3 54:24
notice [1] 23:1 62:10 pointed [1] 28:25 providers [15] 13:19 14:10 16:20,
notion [1] 33:15 otherwise [1] 12:23 points [2] 61:20 63:4 21 20:23 22:17 23:23,24 24:9,17
nowhere [1] 11:21 ourselves [1] 20:19 police [2] 60:7,9 31:17 36:7 52:12 60:20 63:8
nuanced [1] 6:8 out [10] 14:4 17:11,25 26:24 28:19 posed [1] 29:13 provides [5] 4:15 10:14 18:23 19:
number [1] 37:2 35:17 37:18 45:4,16 49:23 position [9] 10:12 24:15 28:17 31: 15 63:19
outside [7] 23:10,19 24:7 42:25 15,21 34:1 35:3 47:21 55:23 provision [5] 4:14,15 19:14 26:12
O 43:4 46:24 51:8 possession [1] 36:20 58:1
object [1] 52:10
over [13] 3:24 7:12,17 14:7 16:14 possible [4] 29:21 48:7 49:6 60: provisions [5] 53:3,6,18 55:9 63:
objected [1] 33:8 24:17 29:14 34:4 43:17 57:7 60: 13 10
objection [2] 20:1 34:11 10 62:8 63:24 possibly [1] 49:18 public [1] 49:20
objections [1] 20:9 overseas [12] 7:1,3 21:3,8 24:4 28: potential [1] 12:19 purposes [2] 7:24 31:19
obligation [9] 5:4 11:2 16:25 18:7 19 31:11 34:6 36:24 38:4 48:15 power [3] 60:4,4,16 pursuant [3] 13:21 25:6 58:4
19:18 20:6,8 21:4 63:2 62:24 practical [3] 38:17 39:21 50:14 pursuing [1] 37:6
obligations [8] 5:21 14:5 18:6,14
own [7] 3:23 14:3 15:8 19:14 22: practice [1] 16:1 push [2] 44:17 46:19
33:19 40:25 42:3 63:24 23 34:25 40:9 premise [1] 52:18 pushed [2] 46:7,8
obtain [3] 5:12 18:24 41:2 owner [1] 35:9 presence [4] 50:22 52:9,10,20 put [6] 4:10 9:4 18:14 51:7 52:13
obtained [2] 28:24 37:6 preservation [1] 63:14 55:20
obtaining [1] 21:23 P press [1] 44:5 puts [4] 14:4 18:6,15 31:21
obviously [1] 44:20 packaged [1] 43:16 presumably [2] 4:16,18 putting [5] 14:21 17:6 21:3 36:9
occupy [1] 22:16 PAGE [3] 2:2 62:3,6 presumption [1] 34:21 48:19
occur [3] 9:9 29:6,8 pairs [1] 56:13 prevents [3] 21:22 47:22 50:3
occurred [1] 6:11 part [4] 12:22,24 16:11 51:16 privacy [7] 20:25 21:8,10,11,13,17
Q
occurs [2] 4:21 10:16 particular [3] 11:22 14:9 34:11 23:2 question [25] 6:1 11:12 12:22 14:
odd [1] 41:18 particularity [1] 21:15 private [2] 32:22 41:13 21 15:20 22:14,15 23:9 24:25 27:
offense [1] 62:9 parties [3] 7:19 20:3 63:24 probable [2] 36:18 50:9 1 28:18 29:13 34:1,18 40:3,5 41:5
Office [1] 13:11 partners [1] 14:2 probable-cause-based [2] 5:8 47:6 53:1 56:3 57:14 58:23 59:14,
officer [2] 18:12 60:7 parts [1] 38:14 21:14 18 62:14
offices [1] 17:7 party [5] 8:11,13 29:10,14 30:9 probably [2] 12:24 50:25 questions [4] 43:21 60:18 61:1,10
Okay [10] 18:2 26:8,25,25 27:19 45: pass [4] 12:15 34:25 39:5 55:2 problem [17] 12:2,25 17:4,5 24:22 quick [1] 61:19
17 48:23 54:15 57:6,12 passed [4] 6:20 39:11,12 54:19 26:4,6 27:13 29:18,20 30:4,4 38: quintessentially [1] 43:18
old [1] 11:17 past [3] 11:16 23:17 33:8 21,25 39:9 49:15 57:21 quite [5] 30:5 41:21 48:25,25 52:
Once [4] 5:5,5,16 62:23 path [1] 61:4 problems [3] 12:7,19 42:14 25
one [25] 6:3 9:5 16:6 21:2,25 22:22 Patriot [1] 62:11 Procedure [5] 18:10 25:8,13 48:3 quo [2] 12:14 14:17
23:8 26:10,24 27:24 30:19 31:22 pay [2] 10:23 11:5
34:22 35:16 37:1,15 38:14 39:25 pending [1] 24:12
58:6 R
procedures [4] 19:11 25:7 38:6 radical [1] 28:16
47:23 48:19 50:14 52:8 53:24 62: people [5] 36:6 50:7 51:7 55:15 58:5
15,20 60:15 raise [3] 11:3 20:8 34:13
proceed [1] 62:21 raises [1] 42:13
one's [1] 35:19 perceived [1] 19:6 process [5] 14:24 16:3 19:1 32:6
ones [3] 14:16 43:14 45:23 percentage [1] 49:22 random [1] 48:18
37:7
only [17] 4:1 8:16 25:5 31:20,21,24 performed [1] 4:7 ratcheted [1] 19:6
procures [1] 29:9 rather [2] 16:2 40:8
32:3,4 38:9 42:15 44:10 51:6 54: perhaps [2] 28:10 44:2 produce [4] 6:25 8:13 29:15 63:3
18 58:4 60:15 61:1,7 permissible [1] 8:8 reach [8] 31:4 32:21 41:8,10,12 51:
production [2] 5:15 28:21 8 59:24 60:14
open [1] 14:20 permits [2] 3:20 39:18 prohibits [2] 7:5 31:16
operated [1] 13:15 person [12] 5:3,4 6:24,25 7:15 23: promise [1] 50:22 reaching [1] 35:2
operates [2] 4:4 5:3 2 25:18,20 27:6 32:4 44:22 51:15 property [6] 22:11 25:18 47:12 48: read [6] 4:13,13 7:25 8:1 39:18 56:
operating [1] 6:24 personal [1] 7:12 3
17 57:18 58:17
operation [1] 8:5 Petitioner [6] 1:4,20 2:4,10 3:8 61: proposed [1] 12:9 reader [1] 43:13
operator [1] 46:8 18 reading [1] 12:19
proposes [1] 28:12 reads [2] 43:14 45:22
opinion [3] 9:5 15:15 23:19 phenomenon [2] 33:14 48:20 protect [1] 52:1
opportunity [3] 20:4 22:6,9 phones [1] 51:1 reality [1] 11:13
protected [5] 32:25 49:1 50:6,11 realized [1] 33:19
opposite [1] 54:6 physical [7] 43:13,15 45:22 48:17, 56:18
oral [5] 1:13 2:2,5 3:7 32:13 20 52:10,19 realizing [1] 6:10
protecting [3] 11:21 53:19 56:11 really [8] 3:19 4:1 14:16 38:21 43:
order [28] 3:14 4:8 5:7,8,19 7:13, physically [2] 32:23 52:7 protection [4] 31:2 43:12 52:23
15 8:12,22 10:6 13:9 18:25 19:8,8, pick [1] 54:10 9 48:10 52:24 53:23
54:25
23 21:5 22:12 24:1 28:20,23,24 picture [1] 32:4 reason [2] 34:19 48:8
protections [4] 12:11 16:24 17:1 reasons [2] 15:14 38:23
29:9,19 30:10 49:5 59:16 63:1,23 piece [1] 43:13 43:7
ordered [2] 10:23 29:15 place [3] 48:19 55:25 56:8 REBUTTAL [3] 2:8 32:9 61:17
protects [1] 51:24 recipient [1] 20:8
orders [7] 19:16 23:10,16 24:8 33: places [4] 5:3,21 26:13 63:23 protests [2] 24:5 30:8
6 62:13 63:14 played [1] 51:16 recognize [1] 41:24
protocols [1] 45:22 record [5] 27:6 37:12,13 38:9 57:1
ordinary [3] 18:9 20:16 22:7 please [3] 3:10 16:8 32:16 provide [4] 8:3 16:17 20:23 48:5
other [27] 6:7 9:9 10:17 13:17 15: plus [1] 22:22 records [5] 11:15 12:12 27:3 55:
provider [20] 3:16 4:5,6,22 5:22 20 56:7
14 16:19 17:4 23:9 27:6 30:19 34: point [14] 6:2 10:21 14:22 16:7 41: 13:23 16:14 18:7 19:20,24,24 21:
7,9 35:8,19 37:19,21 38:5,11,17 23 43:22,22 47:14 50:1 52:5 59:1, 4 23:7 25:5 35:10 36:21,23 37:20 Redmond [10] 34:3 45:13 46:8,16,

Sheet 5 nothing - Redmond
70
�
20 47:1,2 59:15,16,22 same [11] 11:6 24:16 26:3,4 29:23 20 53:9 13,18 40:6,8 41:5,11,25 42:13 54:
reference [1] 11:15 31:21 33:9 42:14,19 51:23 62:22 showing [1] 19:7 11,12 55:24 62:19 63:5,13
referred [1] 22:4 sanctions [1] 29:10 shows [2] 20:5 36:18 statutory [1] 15:8
reflected [1] 8:16 sat [1] 46:2 side [2] 6:7 50:4 step [2] 20:18 35:18
regardless [6] 6:25 7:15 14:11 16: save [1] 32:8 sides [1] 25:1 still [1] 53:19
15 19:18 23:23 saying [8] 8:8 13:9 19:9 34:4 43: signed [1] 57:2 storage [18] 6:4 31:24 33:15 35:22,
regulate [2] 6:16 54:7 20 54:4,5 55:9 simply [4] 22:1 40:6 51:9 56:19 25 36:4,7 41:10 53:5,20 54:22 55:
regulating [1] 53:25 says [21] 4:19 8:13 10:14 11:8 16: since [3] 6:11 15:15 31:24 7,12,16,18 56:12,17 63:6
rejected [1] 23:20 11 18:17 19:10 25:3,10,15 27:5 single [1] 5:19 store [5] 7:16 23:23 36:23 38:4 51:
relate [2] 49:22 55:8 28:7 38:24 42:13 56:6 57:16 58:3, sit [2] 4:9 20:18 17
related [1] 3:15 14,15 63:2,11 sitting [3] 20:18 36:3 55:12 Stored [31] 3:11 7:1 11:15,15,19,
relates [1] 53:17 SCA [1] 53:3 situation [6] 12:2 34:15,17 36:15 22 12:13 14:12 15:4 21:22 22:1
Relations [1] 27:18 scenario [2] 33:1 41:6 37:5 38:20 26:10 28:18 30:7 32:19,23 35:1
relevant [1] 62:2 scientists' [1] 45:15 Sixth [1] 41:11 36:1 37:1 43:3,4,11,24 46:24 50:5
rely [1] 42:16 scrambles [2] 51:2,3 slightly [1] 26:5 51:24 52:1 53:4 54:2,8 55:11
relying [1] 49:16 search [28] 3:18,21,23 4:1,23,24 5: slows [1] 48:21 storing [1] 47:22
remarkable [1] 30:6 9,13,17,23 18:12 22:4,6,10,12 25: sober-minded [1] 33:22 strained [1] 52:15
remote [1] 43:9 17 32:22 46:4,6,9,20 47:1,2,4,6 Societe [2] 7:8 29:12 strong [1] 55:23
request [1] 61:12 57:17 58:16 63:22 soil [2] 35:1,4 structure [3] 5:20 8:5 18:22
requests [2] 14:11 49:21 searching [1] 3:20 sold [1] 50:21 study [1] 24:24
require [3] 14:10 25:4 28:21 seat [1] 18:16 Solicitor [1] 1:18 stymied [1] 24:15
required [2] 9:18 55:19 second [13] 9:21 15:16,16 21:7 23: somebody [1] 50:4 subject [1] 43:7
requires [6] 3:13,18 4:5 7:4 14:8 10,14,20,20 24:7,16 26:25 61:13 someplace [2] 51:19 52:11 submitted [2] 64:2,4
58:2 62:14 someway [1] 44:17 subpoena [18] 4:8 5:2,14 17:10
requiring [6] 4:20 5:14 6:24 7:14 second's [1] 49:8 somewhere [2] 50:5 52:8 18:24 19:19 21:25 22:3,13,23 34:
46:12 63:7 seconds [1] 56:23 sorry [4] 41:17 44:1 45:5 48:13 8 41:3,8,9,16,20 42:10 63:23
respectfully [1] 61:12 Section [6] 3:11 14:13 53:11 63: sort [1] 39:13 subpoena-type [1] 4:24
respond [1] 38:12 11,13,15 SOTOMAYOR [15] 3:17 4:2,12 5: subpoenas [6] 17:7,17,20 20:10
Respondent [4] 1:7,22 2:7 32:14 sector [1] 60:23 24 11:10 12:18 13:3 14:18 15:10 22:18 29:25
responding [1] 63:1 securing [2] 36:3 55:11 40:17 44:1,10 45:5,9,17 subscriber [1] 23:5
response [1] 14:11 security [1] 55:6 sought [1] 23:10 subsequently [1] 6:21
responses [1] 6:19 see [5] 24:22,23 28:11 40:2 51:20 sounds [1] 39:4 substantive [2] 61:20 63:4
rest [3] 23:12 24:18 32:8 seek [2] 13:10,22 source [1] 3:23 substitute [1] 3:19
Restatement [1] 27:18 seeking [2] 13:2 29:25 Southern [2] 57:3 58:10 successfully [1] 30:5
retrench [1] 16:10 seeks [1] 29:9 sovereign [2] 34:24 51:24 sue [1] 47:11
reverse [1] 32:7 seems [4] 33:25 41:18 53:23 55: sovereignty [2] 34:24 60:25 suggest [1] 27:20
rights [1] 15:2 22 special [1] 27:7 suggested [2] 38:19 56:15
RJR [2] 8:3 9:5 seize [3] 25:17 45:1 57:18 specific [1] 54:20 suit [1] 47:18
ROBERTS [14] 3:3 32:10 33:24 47: seized [1] 50:16 specifically [2] 36:3 50:21 supplementary [1] 16:23
17,20 48:12,23 49:10,25 55:17 56: seizure [1] 46:5 specify [1] 19:17 supported [1] 14:25
5 61:14 63:17 64:1 sell [1] 32:1 spells [1] 45:15 Suppose [1] 10:21
robot [6] 44:24,25 45:10,11,13,14 senators [1] 12:9 spins [1] 45:20 supposed [2] 18:20 53:16
robust [1] 52:25 sends [2] 45:13 46:1 split [2] 15:11,11 SUPREME [2] 1:1,14
Rogers [2] 7:8 29:12 sense [2] 7:18 52:10 squarely [1] 29:13 suspect [2] 34:6 59:3
ROSENKRANZ [60] 1:21 2:6 32: sensitivity [1] 19:5 stage [1] 29:8 Swiss [1] 29:17
12,13,15 33:3,11 34:16 35:11,14 sent [1] 44:25 standard [2] 21:12 40:10 Switzerland [1] 29:16
36:10 37:10,25 38:7 39:9 40:4,17, sentence [1] 63:16 standards [2] 39:6,24 system [2] 21:17 24:2
22 41:4,17,22 42:1,8,11 43:2 44:8, seriously [1] 48:14 start [5] 12:21 15:12 32:17 33:17
15,19,23 45:12,18 46:17,21 47:3, serve [1] 5:13 43:2
T
10 48:6,16 49:3,14 50:13 51:13, server [1] 48:14 started [1] 32:18 tail [1] 48:11
22 52:16 53:12 54:15 56:1,9,24 servers [1] 46:3 starting [1] 6:2 tail-wagging-the-dog [1] 49:15
57:5,11,13,22 58:1,7,12,18 59:6,9, serves [1] 49:19 State [2] 13:11 15:1 talked [1] 17:10
11,20 service [15] 3:16 19:15 23:22 24:9 STATES [31] 1:1,3,14 3:5,14,15,16 tech [1] 60:23
roughly [1] 29:11 35:10 36:21 37:19 38:3 48:5,13, 8:16,23 9:16 10:16 11:20 13:21 technical [4] 56:22 61:20,21 62:
rule [12] 7:10 8:9 18:9 19:11,11,12 22 49:7,17 52:12 54:24 20:4 23:21 30:1 31:6 32:5,20 36: 14
20:15 22:8 26:19 57:7 58:11,22 services [4] 50:17,18,20 51:6 18 43:1,4 47:22 48:10 49:17,22 technological [1] 44:2
Rules [4] 18:10 25:7,13 58:5 several [1] 62:9 52:2 54:1,9 59:25 63:2 technology [1] 11:16
run [1] 13:16 shards [2] 37:1,16 statistics [1] 49:20 tells [3] 39:25 45:10,13
running [2] 7:9 45:7 shared [1] 54:24 status [2] 12:14 14:17 tend [1] 14:20
runs [1] 43:16 sheriff's [1] 60:8 statute [52] 4:19 5:20 6:11,20 7:25 tensions [1] 61:5
short [1] 48:25 8:3 9:1,6,7,8,25 10:2,16 11:4,8,13, territorial [4] 19:12,14 42:17 58:
S shot [2] 39:22 54:13 14 13:21 15:7 17:13,20 18:5,11, 20
safe [1] 55:16 shots [1] 54:17 17,22 19:13,14 23:1 25:3,3 29:17 territoriality [1] 52:14
safeguards [2] 16:22 46:1 shouldn't [5] 12:14 15:5 33:23 39: 30:13 31:1,4,14 35:24 39:11,12, territorially [1] 17:15

Sheet 6 Redmond - territorially
71
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test [3] 8:25 9:12 10:14 8:16,23 9:15 10:16 11:20 13:21 whom [3] 16:14 29:14 63:24
text [7] 8:5 9:25 10:1 11:7 17:13 20:4 23:21 31:6 32:5,20 36:17 43: wild [1] 45:7
18:3,4
1,4 47:22 48:10 49:17,21 52:2 54: will [10] 10:21 16:18 24:14 27:24
theoretically [1] 48:6 1,9 59:25 63:2 34:14 37:8 39:5 52:14 54:15 60:
theory [1] 31:23 unless [2] 8:3 48:2 23
there's [18] 6:8 9:17 12:8 14:19,20 Unlike [1] 17:17 willing [1] 31:18
15:10 21:21 23:11 28:11 30:3 36: unqualified [1] 16:13 wires [1] 43:17
16 38:4,25 44:16 46:22 48:16,20

until [2] 33:5,17 wiser [1] 6:14
51:18 unusual [1] 15:12 within [8] 10:15 25:18 51:25 52:1
therefore [3] 19:6 47:4 50:23 up [13] 15:22 18:3 19:6 20:5 26:7 57:7,15,18 59:24
thinking [1] 11:18 30:7 36:25 37:15 42:6 43:16 55:8 without [3] 27:7 39:7 61:7
thinks [1] 38:21 60:2 63:9 word [6] 17:10,13,20 18:19 42:16,
third-party [2] 36:7 55:1 urgent [2] 36:22 38:10 18
though [3] 22:20 42:7 53:23 urgently [1] 38:12 words [1] 50:3
thread [3] 53:2,4,9 urging [1] 14:16 work [3] 20:19 38:10,15
three [3] 18:23 19:3 63:9 useful [2] 16:17 22:24 working [1] 43:10
ties [2] 53:2,6 uses [2] 17:13 18:19 world [9] 6:17 32:1 34:23 36:6 54:
time-consuming [2] 38:6 48:4 using [4] 9:12 19:10 25:6 58:4 3,7 55:14 60:10,15
tinker [1] 61:6 worry [1] 47:25
today [5] 12:2 16:12 24:15,21 60:
V wrapping [1] 60:2
19 variety [4] 17:4 26:13 38:23 63:7 wrestling [1] 60:19
together [2] 53:2,7 various [4] 6:12 20:9 40:13 55:8 write [1] 6:11
tomorrow [1] 51:19 verifying [1] 45:21 written [3] 13:4 15:15 23:19
took [1] 29:21 versus [4] 3:5 7:8 20:4 29:12 wrote [3] 23:1 40:7,8
tools [1] 61:7 view [4] 9:7 21:10 29:7 30:20
totally [1] 12:1 viewed [2] 8:15,17 Y
trammeled [1] 26:18 violate [2] 28:23 30:11 years [1] 37:9
transmitted [1] 9:15 violation [5] 40:20,23,24 42:2,5 York [7] 1:21,21 57:3 58:10,17 59:
Treaty [3] 13:20 14:6,21 vision [1] 30:24 17,22
vital [1] 24:19
trenching [1] 12:4
voluntarily [6] 40:19,23 41:15,19
Z
tried [1] 59:7 zeros [2] 43:14 45:24
troubles [1] 36:11 42:2 62:16
true [1] 21:3 voluntary [1] 56:6
trust [1] 50:23 voted [1] 15:23
truth [1] 42:20 W
try [2] 9:25 61:6 wait [3] 15:5 33:19 48:24
trying [2] 44:3 53:11 waiting [1] 16:2
Tuesday [1] 1:11 wanted [6] 5:12 20:16 36:7 50:7
turn [2] 3:23 34:4 54:19 55:15
turns [1] 37:18 wants [5] 6:16 32:1,20 40:15 48:1
two [12] 4:3 21:1,9,24 22:3 26:9 38: warrant [48] 3:21 4:15,20 5:7,17
13 53:24 54:11 61:16,20,20
11:7 17:13 18:8,11,19 19:2,10,10,
typically [2] 13:15 17:14 19 20:3,5,13,13,15,16,24 21:2,14
U 22:8 25:6,17 41:7 42:17,24 46:7,
U.S [10] 8:12 13:18 29:14 32:2 33: 15,18,21 47:1 50:9 55:2,4 57:1,17
21 35:3 44:5 50:22,24 51:8 58:2,4,9,9,16 59:21 62:2 63:19,21
unable 59:16
[1] warrants [5] 20:11 26:13 58:19 59:
unauthorized [1] 33:21 23,25

unbroken [1] 8:11 Washington [9] 1:10,19 34:3 44:
uncertain 16:3[1] 18 55:25 56:8 59:15,17,22
unconstitutional [1] 47:13 way [21] 6:6 7:25 9:22 13:14,17 22:
under [22] 5:19 7:10 13:15,19 15:7 25 30:19 37:5 38:4,8,15,17 39:20
18:9 20:4,20 22:8,25 27:7 30:7 32: 40:11 42:4 45:14 48:13 50:25 51:
5 40:18 41:11,11 43:12 47:21 50: 3 52:24 60:2
23 52:23 54:25 62:21 ways [1] 21:24
underscores [1] 48:18 weighed [1] 40:14

understand [5] 10:3,4 12:8 40:4 weighing [1] 39:14
55:15 Whereupon [1] 64:3
understanding [1] 17:15 wherever [2] 13:23 21:6
understands [1] 33:13 whether [9] 7:1 8:25 22:15 29:14
unilateral 7:2[1] 50:18 54:11,12 60:23 62:15
unilaterally [2] 32:21 62:24 who's [1] 36:16
UNITED [30] 1:1,3,14 3:5,14,15,16 whole 33:15 52:14
[2]

Sheet 7 test - zeros

United States v. Microsoft

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SUPREME COURT

OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES

Place: Washington, D.C.

Date: February 27, 2018

HERITAGE REPORTING CORPORATION

1 IN THE SUPREME COURT OF THE UNITED STATES

11 Tuesday, February 27, 2018

13 The above-entitled matter came on for oral

14 argument before the Supreme Court of the United States

18 MICHAEL R. DREEBEN, Deputy Solicitor General,

19 Department of Justice, Washington, D.C.; on

20 behalf of the Petitioner.

21 E. JOSHUA ROSENKRANZ, ESQ., New York, New York; on

22 behalf of the Respondent.

Heritage Reporting Corporation

Official - Subject to Final Review

2 ORAL ARGUMENT OF: PAGE:

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF:

6 E. JOSHUA ROSENKRANZ, ESQ.

7 On behalf of the Respondent 32

8 REBUTTAL ARGUMENT OF:

10 On behalf of the Petitioner 61

Heritage Reporting Corporation

Official - Subject to Final Review

3 CHIEF JUSTICE ROBERTS: We'll hear

4 argument first this morning in Case 17-2,

5 United States versus Microsoft Corporation.

7 ORAL ARGUMENT OF MICHAEL R. DREEBEN

8 ON BEHALF OF THE PETITIONER

9 MR. DREEBEN: Mr. Chief Justice, and

10 may it please the Court:

11 Section 2703 of the Stored

12 Communications Act focuses on classically

13 domestic conduct. It requires disclosure in a

14 court order by the United States of information

15 related to United States crime and here by a

16 United States service provider.

17 JUSTICE SOTOMAYOR: It actually

18 requires a search. It's -- the disclosure here

19 is really a substitute for the government's

20 searching. The Act permits the government to

21 have a warrant and go in and search for these

22 materials or, in the alternative, to ask the

23 source to do its own search and then turn the

25 So why -- you describe it as if it's

Heritage Reporting Corporation

Official - Subject to Final Review

1 only a disclosure, but it's really a search.

2 MR. DREEBEN: So, Justice Sotomayor,

3 it -- it's a hybrid instrument that has two

4 functions. The first function operates

5 directly on the provider. It requires a

6 provider to make disclosure of information.

7 That is a function that's classically performed

8 by a subpoena or a discovery order. It does

9 not authorize the government to go in, sit down

10 at Microsoft's facilities, put hands on

24 JUSTICE SOTOMAYOR: Mr. Dreeben -