Mu-Chia Kao
9th Circuit: ECPA protects domestic communications of non-US citizens
In Suzlon Energy Ltd. v. Microsoft Corp., the U.S. Court of Appeals for the Ninth Circuit uphold a trial court’s quashing of a subpoena and concluded that even foreign citizens are entitled to the protection of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2522.
In this case, the plaintiff, Suzlon Energy Ltd. (“Suzlon”) has demanded that the defendant, Microsoft Corp. (“Microsoft”) produce documents from its Hotmail email account of Rajagopalan Sridhar, an Indian citizen imprisoned abroad. Microsoft objected to the production and argued that production of the emails would violate the ECPA. The district court agreed and held that the plain terms of the statute applied the ECPA to all persons, and granted the motion to quash.
The relevant provision of the ECPA states that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C.§ 2702(a)(1) and it defines a “user” as “any person or entity who — (A) uses an electronic communication service; and (B) is duly authorized by the provider of such service to engage in such use.” 18 U.S.C. § 2510(13) The question at issue is whether the protections of the ECPA extend to the contents of communications of foreign citizens.
According to the Court, just like the Freedom of Information Act, “the ECPA does not facially restrict its applicability to U.S. citizens.” The Court also recognized in O’Rourke that “Congress knows how to explicitly limit a statute to U.S. citizens when it intends to do so.” (O’Rourke v. U.S. Dept. of Justice, 684 F.Supp. 716 (D.D.C. 1988) Therefore, it affirms the district court’s finding that “the plain text of the ECPA applies its terms to ‘any person,’ without qualification, including foreign citizens.” 18 U.S.C. § 2510(13)
Moreover, considering legislative history, the Court noted that “in order to fully protect American citizens, it might be necessary to extend the ECPA to all domestic communications, regardless of who sent them.” The Court also said, “Suzlon’s restrictive reading of the ECPA would put email service providers in an untenable position. By limiting the ECPA only to those people entitled to Fourth Amendment protection, as urged by Suzlon, an email service provider would need to assess whether a particular account holder was at all times a U.S. citizen, or later became a citizen, or was a resident alien with some Fourth Amendment protection, or if there were other reasons to provide Fourth Amendment rights. This would be a costly, fact-intensive, and difficult determination.” In sum, this ruling indicates that the ECPA at least applies whenever the requested documents are stored in the United States. But the Court specifically noted that it does not address whether the ECPA applies to documents stored or acts occurring outside of the United States.
Although this case is a civil litigation involving discovery request, as the Court rejects the argument that the ECPA only applies to government law enforcement, we may reasonably concludes that this ruling applies to cases involving law enforcement issues as well. And since almost all major email servers are located in U.S., this ruling may impose a significant impact on email users all over the world for gaining protections from the ECPA.
Full context of the court’s opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/03/10-35793.pdf