we'll hear argument first this morning in case seventeen two united states versus microsoft corporation mr greenberg mr chief justice and may it please the court section twenty seven zero three of the stored communications act focuses on classically domestic conduct it were choir's disclosure and a court order by the united states of information related to united states crime and here by united states service provider did not actually requires disclosure here is really a substitute for the government searching the act permits the government to have a warrant and go in and search for these materials or in the alternative to asked the source to do its own search and then turn the materials over so why don't you describe it as if it's only a disclosure but it's really a hybrid instrument that has two functions the first function operates directly on the provider it requires a provider to make disclosure of information that is a function that's classically performed by a subpoena or a discovery order does not authorize the government to go in sit down at microsoft's facilities put hands on keyboards well actually it does if you read the provision it's the or no charge it is for that meaning the provision provides for a warrant that presumably would let the government do just that if it shows so presumably not because the statute actually says that the government can get a warrant requiring disclosure the act that that occurs in the case is an act on the provider and the fundamental distinction between a search and a subpoena type instrument is that in a search the government does go right in and grab the information in a subpoena context the instrument operates on a person and it places an obligation on that person to make disclosure once it gets to the government once the government has the account in the hands it executes the warrant aspect of the order which is a probable cause based order allowing the government to search the account so it's essentially analogous to if the government knew that an individual had a laptop computer and it wanted to obtain that computer and search it it can serve a subpoena on the individual requiring the production of the laptop once the government gets the laptop into its custody it needs a search warrant to get in and look at the information and hear a single order achieves both functions under a statute whose structure and language makes clear that it places disclosure of ations on a provider and it then authorizes the government to conduct  didn't exist and there are good arguments that can be made either way but a court can say either you are right or right on the other side it's all right and there's nothing n subsequently and we think the court should leave things as they are with the instrument that congress authorized operating on a person and requiring that person to produce information regardless of whether it's stored  overseas microsoft here made a unilateral decision to move information overseas nothing in the law requires it nothing in the law prohibits it what congress did was act against a backdrop of law dating back to this personal jurisdiction over an individual before the court and issues an order requiring disclosure of information that person must comply with the order regardless of where it has chosen to store the information over which it has control in that e read out against the backdrop of this court's decision in morrison in our jr which provides that unless the statute clearly has extraterritorial application in its tax structure or operation it has none and we're not here arguing that this application is extraterritorial and permissible what we're saying is that it has always been the rule from decisions in this court and decisions in the lower court in a basically unbroken line that when a party is before a us court a court issues in order to that party that says produce information that's domestic conduct it's viewed as domestic conduct not only in united states law are reflected in this court's decisions it's viewed as domestic conduct in international has a test for determining whether an application of a statute that has some domestic conduct in some foreign conduct is domestic or extraterritorial and as justice alito put it for the court in the r j our opinion one has to look at the focus of the statute if the focus of the statute has domestic conduct in view then it is a domestic application of the statute either if even if other conduct must occur abroad mr johnson why would that be the case using the focus test that we wouldn't take cognizance of the fact that the information must be collected abroad and transmitted from abroad to the united states before it could then be disclosed i mean there's a chain of activity that's required here there why should we divorce the first half from the second because i think the way that the court has an approach this justice course which is to look at the language of the statute in the actual text and try to identify from that text what is the focus of this i understand the disclosure i that's within the focus of the statute occurs in the united states the fact that there may be antecedents or other conduct abroad doesn't detract from the domestic application and i have an example that i think will help illustrate that point suppose that a defendant in federal court  convicted and ordered to pay a fine and the defendant said i i can't do that with my domestic assets they're all located abroad i am fairly confident that the courts would say the obligation falls on you how you raise the money is your concern it's not an extra territorial application of the statute to say bring the money home and pay the fine and that's the same that we're asking to happen with the wiring in fact the text of the statute says nothing about extraterritorial conduct  driven i don't know that you fairly answered justice ginsburg's question this is a nine hundred eighty six statute the reality in one nine hundred eighty six if you look at the statute and its reference to stored records to storage communications was a think it's a past technology old concept but i think it's fair to say that back then they were thinking that where these materials was stored had a geographic existence in the united states not a broader nowhere else and that they were protecting the communications that were stored in particular locations things have changed but what you're asking us to do is to imagine what congress would have done or intended in a doesn't want to do what our tourist prudence doesn't want to do which is to create international problems now i understand there's a bill that's being proposed by bipartisan senators that would give you most of what you want but with great protections against foreign conflicts there are limitations involving records that are stored abroad why shouldn't we leave the status quo as it is and let congress pass a bill in this new age so that addresses the potential problems that your reading would create to start with the last part of your question and then come back to the first because otherwise i'll probably forget with the last part is there is not an international problem here this is largely a mirage that microsoft is seeking to create for the tw guy who have written complaining about how this would conflict with so much more and wrong we've got a bunch of in the briefs telling us how much of this conflicts no foreign government has come to this court saying that the order that we seek would conflict with its law the state department and the office of international affairs and the justice department have heard no complaints from foreign governments about the way that we have typically operated under twenty seven o three for decades in fact the complaints all run the other way the complaints are that when foreign governments need information from u s providers they come here under a mutual legal assistance treaty  and they depend on the united states pursuant to a statute to go into court invoke thirty five twenty seven o three and seek the information from the provider wherever it may be located and the microsoft decision has caused grave interference with our ability to help our foreign law enforcement partners in force their own laws it is the microsoft decision also puts us out of compliance with our international obligations the budapest cyber crime treaty which is joined by over fifteen nations including most of the european nations requires courts to in in particular jurisdictions to have the authority to require providers to furnish information in response to court requests were gargle somewhere in the information is stored that section eighteen point one a of the budapest convention so the international baseline here is exactly what the government is argue in for and we are the ones who are really urging this is because there's been a lot of back and forth and i tend to disagree there's an open question on the glucose treaty but putting that disagreement aside assuming the point that i me there is a bill can you tell me where it is in the legislative process it's bipartisan it's supported by the department of state and the department of justice it does deal with certain rights and limitations to the access to this information when it's stored in foreign locations why shouldn't we wait for that bill well first of all this court studious to interpret the statute under its own statutory canons i don't think there's no circuit split we granted seared before circuits which is an unusual act of start with well that there are a couple of reasons for that no other court that has issued a written opinion since microsoft has agreed with the second circuit and the second circuit and secession has caused grave and immediate harm to the government's ability to enforce federal criminal law but as to the question about the clown act as it's called it has been introduced it's not been a  any committee it has not been voted on by any committee and it certainly has not yet been acted into law and i think this court's normal practice is decide cases before it based on the law as it exists rather than waiting for an uncertain legislative process and as to the facts like one following final point on this as to the bill itself it does not retrench on the authority that the government says is part of the legal fabric here today it actually endorsers in an unqualified manner the government's ability to get information from the provider over whom it has jurisdiction regardless of the location of the data it goes on to provide very useful mechanisms for bilateral cooperation that will facilitate other nations ability to get in permission from our providers and our ability to get information from their providers with safeguards but those are supplementary protections that do not exist apart from the fundamental twenty seven  three obligation which i would add does have built in protections to address justice ginsburg's concerns lower courts have confronted this problem in a variety of other contexts this is not a new problem in the banking area the government has been very active in putting subpoenas on branch offices of foreign banks that have access to grieve and use were subpoenaed and we've talked about that a lot and could you help me out with the fact that when we're focusing on the text  the statute uses the word warrant which typically has a very limited in their own understanding territorially yes unlike subpoenas yes and also in the statute congress used the word subpoenas yes so we know if it knew the difference yes help me out with that ok so i'm glad that you brought up the text because i think the text is actually the government's friend here what the statute does is create obligations of disclosure it puts an obligation on a provider to make disclosure what a warrant to does if it's its ordinary form under rule forty one of the federal rules of criminal procedure apart from the statute a warrant is a authorization to a law enforcement officer to go in and search doesn't need the cooperation of anybody doesn't put the obligations to do anything on anybody else it puts the government in the driver's seat this statute says doesn't do that i gotcha but but but it uses the word warrants who always supposed to make of that i think what you make of it is that the structure of the statute provides three mechanisms for the government to obtain disclosure a subpoena a twenty seven zero three d order which is the intermediate form a process that's at issue in the carpenter case and a warrant and those three different instruments correlate with the different levels of sensitivity of information that congress perceived and therefore it ratcheted up the showing that the government had to make in order to get the disclosure order and so instead of saying just go get a warrant it says warrant using the procedures of rule forty one not all of will forty one the territorial limitations of will forty one are not incorporated into the statute in fact the statute has its own territorial provision which provides for nationwide service of disclosure orders and it goes on to specify that this disclosure obligation applies regardless of the instrument be it subpoena twenty seven zero three or warrant it all falls on the provider to make disclosure and i  think that that's an important fact because when you have an order to a provider it allows the provider to do what my friend here did come into court and make an ex ante objection before the instrument is executed with a warrant parties don't get that opportunity under united states forces grubb's the government shows up with a warrant the citizens obligation is to comply it also ensures that that the that the recipient has the obligation to raise various objections about burdensome this which are also features associated with subpoenas not warrants and finally it avoids the intrusiveness of a warrant or warrant allows the government to just come right in if we had a warrant and we could get a war forty one ordinary warrant if we wanted to we would go to microsoft headquarters and ask the gentleman sitting at the keyboard to step aside and sit down and do the work ourselves but we don't do that under twenty seven zero three and congress didn't intend that we do that w congress intended was that we have the ability to compel providers to provide information and the warrant then addresses the customer's privacy interests so the court below thought that two things were going on one was we were actually executing a warrant overseas that's not true we're putting an oblong nation on a domestic provider to comply with the domestic court order with information from wherever it's drawn and second the court below thought that we were invading privacy  overseas there are two fallacies i think in the view that this is a case about privacy it's not a case about privacy the government has the gold standard of an instrument to address privacy interests here a probable cause based warrant issued by a judge that describes with particularity what we want that is the hallmark in our domestic system of how privacy interests are addressed no i don't i don't know you want to do you think there's anything that the stored communications act prevents you from obtaining this information in either of the two conventional ways that you mentioned one by getting a grand jury subpoena if the store communication acts simply doesn't apply here could you go to a grand jury and get a grand jury subpoena or to conduct the connoisseur's that you just referred to and if you did that would microsoft have any opportunity to contest that search so if we got a ordinary conventional  microsoft does not have an ex ante opportunity to contest the search the government goes in and it takes control of what property it needs to in order to conduct the search the grand jury subpoena i think is a little bit of a more difficult question because  question would be whether twenty seven zero three meant to occupy the field in getting information from providers or instead left us free to use grand jury subpoenas in areas that aren't covered by twenty seven zero three what is clear i think though is that twenty  zero three was meant to build on categories of existing instruments plus adding a new one that of congress his own device the subpoena instrument is useful for us in certain circumstances for the content of information under the way that congress wrote the statute if we give notice to the person who's privacy interests are him ok did it also allows us to get very basic subscriber information we don't have to go to a court first we just issue the instrument the provider has to make disclos to question what is happening when these orders are sought now outside of the second circuit i mean there's been talk about leaving things alone but is the rest of the country going to the judge is everywhere in the country  follow what the second circuit decided are they doing that or are they continuing to issue the kinds of orders that were issued in the past every district court that has written an opinion outside of the second circuit has rejected the second circuit's approach and the united states is continuing to compel information from service providers regardless of where they store it and in the case of providers like google algorithms enable them to move information around the globe in order to maximize the efficiency of their system and much of the information that we're getting is coming from overseas and we have heard no protests from far and what is happening when these district courts outside of the second  internet service providers are not appealing i think that in some cases there are appeals that are on hold pending this court's disposition of this issue so it's not going to go away and if congress doesn't enact legislation we will be here in the exact position we are today stymied in the second circuit but getting the exact same information from providers all over the country in the rest of the country and it's information that's extremely vital to criminal law enforcement because so much criminal law enforcement today is international i see the problem i think but what i don't see yet maybe i just have to go back and study it is your answer to just discourse which is a question which has been bothering me on both sides there with you as you know but i look at the language of the statute and the statute says a government entity may require the disclosure by provider of electronic computer communication only pursuant to a warrant issued using the procedures described in the federal rules of criminal procedure that's what it says yes then i go to the federal rules of criminal procedure and there the first thing i discover is you ask a magistrate and it says a magistrate judge with authority in the district has authority to issue a warrant to search for and seize a person or property located within the district right now so that's what you did you went to this basic one is that the stored communications act itself has a jurisdictional provision that allows the government to go to a variety of places to get warrants it can go to the district where the crime is being investigated on that court has nationwide authority it's not trammelled by rule for does that would you did what did you do here did that here we did that here this is an investigation being conducted out of ok ok second question is maybe it's not this case but what happens if you go to microsoft and you ask sa some for some bank records that are in italy and in fact italy does have a law we have magine which says absolutely no bank record can be taken by any other person without some special that which many of my keeper suggest to us that what should be done in such a case is you go to the magistrate or the judge and you say judge i want you to look at the factors of comedy and one of them will be if there is we can say is not here this italian law if there is which says you can't bring yes so you so you can perhaps there is agreement we'll see about what should be done in this new law proposed as well i think what's more radical is that microsoft's position is that no court ever gets to ask the question if the data is stored overseas we're just out of luck we can't even ask a court for an order that would require its production they haven't to serve did that it would violate foreign law in order for them to comply with the order that we obtained in this case nobody has actually pointed concretely begin we're agreeing mr dri been the court in that circumstance should conduct a comedy analysis yet and if you are what would that look like and when would occur well in our view it would occur at the contempt stage after the government procures an order if it seeks to impose sanctions on a party for noncompliance that's roughly the model that this court used in society internets you now versus hundred fifty eight decision that squarely posed the question of whether a party over whom a u s court had jurisdiction could be ordered to produce documents that were located in switzerland when swiss law had a blocking statu and the court had no problem with the issuance of the order but it had a great deal of problem with failure to conduct any comedy analysis that took into account possible conflicts with foreign law and that same framework was applied by lower court when they encountered grand jury subpoenas seeking financial information located in foreign country states where and there was an assertion of a conflict with foreign law so there's nothing new about this problem it's a problem that courts have been grappling with for decades quite successfully and what's more remarkable is it's never come up under the stored communications act we have had no protests either before or after microsoft and no litigation by a party either before or after microsoft that said this order would violate foreign law may i take you back to the language of the statute most of your argument in your brief focuses on twenty seven zero three and you say we should just focus on twenty seven and three and i'm not going to argue with you one way or the other on that but i want to get your view actually of what the focus of twenty seven zero one and twenty seven o two is so if you do expand your field of vision and you know what would you say then twenty is a statute that blocks access it's a protection against hackers and we think that is a domestically focused statute but it would reach foreign conduct that hacked into a computer located in the united states a computer is here but the  the conduct that the focus of twenty seven or one would be here twenty seven o two is a much more difficult statute we have not taken a position in this court on its focus it prohibits certain divulgence is of information by providers we've been willing to assume for purposes of this case that its focus mirrors twenty seven zero three and addresses only domestic disclosures but that only puts us in the same position as microsoft with one difference microsoft's theory is that if it moves information abroad since storage is the only thing that counts it's then free to disclose that information to the world to sell it to do anything it wants free from u s law the only thing that microsoft adds to that picture is that the only person who can't get it is the united states under lawful process and we think that that's wrong and that the court should reverse that judgment if i can save the rest of my time for a bank  mr chief justice and may please the court i'll start with justice kennedy started which is where we all agree that the stored communications act is a limited to the united states yet the government wants to use the act to unilaterally reach into a foreign land to search for copy and import private customer correspondence physically stored in a digital lock box in a foreign computer where it's protected by foreign that until this very case microsoft was complying with these disclosure orders in this case if the first time it objected that they would pass every of the thing time and with just i want to make sure that you that the court understands justice ginsburg that this is a very new phenomenon this whole notion of cloud storage in another country we didn't start doing it till two thousand and ten so the fact that we analyzed what our legal obligations war and realized wait a minute this is actually an extra territorial act that is an authorized by the us government the fact that we were sober minded about it shouldn't be held against us well but it's it seems to me you're assuming the answer to the question of the government's position of course is it's not an extraterritorial act they're going to redmond washington and saying you have to turn this over to us it's not the government's fault that it's one created overseas i suspect the government doesn't care just like any other subpoena where you go and mr grieve and use the example who funds but it could be any other evidence and if there is a particular objection by the government where the information is located they're free to raise that in the government will have to deal with that but i gather that's not the situation here well your honor of the first it is the situation here but let me answer the question directly the reason that this is an extraterritorial act goes right to the heart of why we have a presumption against extraterritoriality no one disputes that countries across the world believe that they have the sovereignty and the sovereign right to pass their own laws governing the access to e mail stored on their soil and here we are reaching into  and imposing our u s position on who gets access to emails on their soil why should we have a binary joyce between a focus on the location of the data and the motivation of the disclosure are there some other factor where the owner of the e mail live where the service provider had headquarters know just we had we were to this binary choice your honor that is a consequence of this court analysis in morse in which no one is challenging but so yes you've got to figure out what the focus is at step two no one's arguing for any focus other than the government's argument focuses on disclosure and our argument that it focuses on a storage and i want to be sure to get to that argument if you if you look at this statute the focus is on the storage this is the storage of communications act at the most basic level that's what the focus is and it's more specifically communications sitting in storage congress confronted this brave new world of people in trusting their communications to third party storage providers it wanted to make sure that americans felt comfortable putting their communications there mr rosenkranz this is what troubles me it would be good if congress and acted legislation that modernized this but in the interim something has to be done so what happens in this situation an american citizen who's being investigated for crimes committed in the united states the government shows probable cause that there is evidence of this crime in e mails that are in the possession of an american internet service provider and there they have an urgent need for the information but the provider has chosen to store the data overseas and in fact in some instances has actually broken it up into shards so that it's stored not just in one foreign country but in a number of foreign countries now what happens in that situation there is no way in which the information can be obtained except by pursuing and lats against multiple countries a process that could that will take many months maybe years what happens will justice l that is not so far as certainly it so far as this record is concerned and not so far as any record before any court is concerned what actually happens no one actually breaks up the e mail into shards certainly not in this case that's not what microsoft does and that is not it turns out what google does either excuse me that is not what the other service provider does either in the context of these other cases that are being what we were told that that's what the g mail does that's not correct no your honor that's not correct all right well all right the service provider has chosen to store it overseas there's no way to get the information other than through these these very time consuming and lap procedures will your honor the way to get the information is through em lads in the only evidence in this record about em watts is that em let's do work if it's urgent for the government the other governments urgently just there are two parts to this do not mind one is the language which i'll have to work my way through you heard the answer to that the other is a practical way of dealing with the foreign law now the government suggested and what's impractical about this in any situation where say microsoft thinks that there really is a problem here because of a foreign law which might forbid it or variety of reasons what you do is you microsoft goes to the magistrate and says look there is a problem here because of the law of other countries because of this because of the out and the magistrate takes that into account that sounds to me like  then maybe congress will pass this and we'll have standards in it and it'll be much more helpful but but even without that out what's wrong with that that the problem with that justice breyer is that that's not the statute  congress passed the statute congress passed is a statute that does not call for this sort of where you're getting a conceptual answer which i think is fine but i want to know if the language permits can we read this statute to adapt to the modern condition and if we can then shouldn't we do it that way because it would be practical everybody get a fair shot you take foreign interests into account maybe you use eris spatial standards one brief tells us they're not good enough but it didn't say what we should use but the use of my question i do understand the standard now by the way the cloud act that that has gotten some conversation this morning does have various factors that might be weighed that's congress's decision if congress wants to do that and it would not be a violation of twenty seven o two if we voluntarily did something but it would be a violation of our obligations to our customers and if that so then why can't the government just well so that is another big question though this is a statute in which that they or the scenario which the government has used to warrant a subpoena could not reach a lot of these e mails because a subpoena would not reach e mails that are in storage for less than one hundred eighty days under the statute and under a six circuit decision couldn't reach them at all that is individuals private good voluntarily disclose that they couldn't have  disclosed it would be a violation of our obligations to our customer it would also by the way in this context be a violation of european law now i just i want to back up though there are a lot of  could get this material with a subpoena absolutely not your honor that is i agree with you that that is what the statute says but it raises the same exact problems of extraterritoriality because i mean the only thing that we wouldn't be able to do is rely on the word warrant in all of the territorial implications of that word but all of our other answers would be the same the truth is other  let's start with the fact that these e mails are stored outside the united states they are stored in ireland and the government is asking us to go in fetch them from ireland they are subject to protections in ireland so what happens in ireland what happens in ireland is really a remote control is actually working a mechanism where these emails are stored on a h rd drive in a facility under protection of foreign law and a a a reader which is a physical piece of hardware reads the digital ones and zeroes off of it which are also physical manifestations it's then packaged up and it runs through ireland on the hard wires in over the atlantic this is a quintessentially extraterritorial act now is just saying there are a lot of complicated questions in this case but the decisive point in the point that justice course which i was making earlier is that the emails are stored in ireland in the d e a s forcing us to fetch exist only in ireland and what happens in it exists and you can have more happen electronically or with human intervention no no human intervention there's a human button in washington yes then obviously something happened than ireland on that computer but there's some person have to be their human being doesn't have to do it it is a robot and if you if you sent a robot into a foreign land to seize evidence it would certainly implicate does the robot do a human being in let's say redmond tells the robot sends the robot instructions and by the way the computer scientist amicus brief spells this out in great detail what happens then it interfaces with a hardware computer in a hardware facility it spins a disk it looks for the email on that disk after verifying certain protocols it reads physical manifestations on magnets of the ones and zeroes which are like letters in the alphabet and then it copies them onto another disk it then safeguards them and sends them back here now if the da sat at a computer in c and hacked into our servers in ireland everyone agrees that that would be a search and seizure in ireland if the government did what mr dri been described executed a search warrant itself pushed us  or from the operator in red man pushed him aside and said i'll take it from here that search would be in ireland all that's happening now is that the government is requiring us to do something that it would want to do you dispute that the government could issue a warrant to go ahead and do exactly that in redmond the government could issue a warrant of putting aside and do the search and rescue warrant authorizes that there's there's would not be who could the government do that outside of the stored communications act could the government issue a classic search warrant go in to redmond and conduct the search on the computers in redmond it would be an extra territorial search it would therefore be illegal but what if the government did that there is no question that that search is going on and the government and what could you do about it or we could we could sue the government and say that you can't come onto our property and engage in these and constitute in these extra territorial acts but my my point kind of what going to assume with that the but anyway government there is nothing under your position that prevents microsoft from storing united states communications every one of them either in canada or mexico or anywhere else and then telling their customers don't worry if the government wants to get access to your communications they won't be able to unless they go through this and that procedure which which is costly and time consuming could you provide that service to your customers is it theoretically possible yes but it would never happen and the reason it would never happen is that we have two hundred million active customers here in the united states they that this is really a tale i'm sorry we in what way is their service seriously compromised if the server is overseas well there is a basic physical property at issue here that underscores that this is not just some random act of putting while longer but they're protected from any government intrusion into their e mail communications you're out of these facilities are hot the billion dollar facilities we build them in order to make sure that our customers get the best possible service is the tail wagging the dog problem we have two hundred million customers who are a lying on the best service here in the united states that can possibly be brought the government service on us say i mean these of these statistics are public sixty thousand requests for information in the united states the percentage of those that roll late to emails abroad it's fifty four of them out of  sixty thousand it's ninety nine point zero but my basic point and i'm not sure that you've answered it is that there is nothing that prevents microsoft you know words in email from me to somebody in the other side of the building that is going to be stored somewhere else would be protected from disclosure if people in the government wanted access in the normal course of the criminal investigation where they have a warrant establishing probable cause from here to the next block then is going to be protected from disclosure to the government and your honor that my answer is equally practical one and that is if customers do not want their e mails to be seized by the government they don't use microsoft services they don't use microsoft services whether they are in canada or mexico because those are available by m what's what do they do they use services that are sold specifically with the with the promise that we have no u s presence and therefore you can trust us to keep it under a lock and key from the us government by the way you probably all have cell phones with this feature it is a feature that scrambles your instant messaging in that scrambles it in a way that no government can get their hands on it so it's not like this is a device that is available only through microsoft's services if people want to break the law and put their emails outside the reach of the u s government they simply wouldn't use microsoft is it correct that we don't know the nationality of the individual who has this e mail account yes that is correct just so you know well if this person is not irish and ireland played no part in your decision to store the information there and there's nothing that ireland could do about it if you chose tomorrow to move it someplace else it is a little difficult for me to see what ireland interest is in this you are ireland's interests are the same interest of any sovereign who protects information stored where that within their domain we protect information stored within the united states and we don't actually care who information i because we have laws that guard the information and i guess the brain is that when we're talking about this information which are yes it it physically exists on one or more computers somewhere but it doesn't have a presence any place in the sense that a physical object has a presence someplace and the internet service providers can put it anywhere they want and move it around at will the whole idea of territor is strained would you agree with that i would not agree with that justice alito and here is why i firstly disagree with the premise this these e mails have a physical presence they are actually on a h d drive are they move a ball yes but letters are movable as well and they are under protection of foreign laws which by the way are really quite robust so moving moving just back to the to the basic question of focus the common thread that ties together all of these cross reference provisions of the s c a the common thread is stor communications that are in electronic storage that is what ties these provisions together and that is the focus why do we want to look for a common thread why shouldn't we just look at twenty seven o three and ask what congress was trying to do in that section where you aren't even if you focus on twenty seven zero three and in isolated from everything else the first thing i'd say is even the government agrees that that's not what you're supposed to do you are at a minimum allowed to look at how it relates to other provisions the focus is still on protecting e mails in electronic storage from government intrusion it is not how do we know really i mean it seems as though we have a choice between two things one is what congress is doing is it's regulating the disclosure of united states of alectryon a communications that are stored everywhere in the world and that's what the government is saying and you're essentially saying the opposite what congress was doing was to regulate the disclosure anywhere in the world of electronic communications that are stored in the united states i'm not sure how i pick between those two from the face of the statute whether it's twenty seven zero three or whether it's the broader statute so give me your best shot ok so i'll give you if i may i'll give you a couple shots if we're only focusing on twenty seven zero three congress passed the twenty seven zero three because it wanted to limit law enforcement access to a specific category of e mails and that is what e mails that are in electronic storage congress was concerned that e mail shared with a service provider would lose all fourth amendment protection under the third party doctrine congress did not need to pass twenty seven zero three to offer disclosure of bio warrant law enforcement already had access spy or warrant the focus was on in hansing the security of e mails that were in electronic storage now backed up in relate to various provisions twenty seven zero one twenty seven zero two twenty seven zero three i was saying earlier at the most basic level this is the stored communications act it's about securing communications that are sitting in storage i was describing earlier it is a brave new world that congress was facing were wanted people to to understand that their emails in electronic storage were safe but you focus on the storage twenty seven o three is headed require disclosure of customer communications or records and congress put that heading in the act when it amended it it seems to me that the government might have a strong position there that the statute focuses on disclosure and disclosure takes place in washington not in ireland well your honor twenty seven zero three this goes back to justice question it cannot be right in isolation from twenty seven zero to twenty so twenty seven zero one and twenty seven zero two are with twenty seven hundred twenty seven o two says voluntary disclosure of customer communications or records and that too takes place in washington not ireland and so the answer your honor is that the act was first in fundamentally about protecting the communications that were in electronic storage and so twenty seven zero three pairs with twenty seven zero to twenty seven o two is about making sure so twenty seven o two is as the government has  suggested is about making sure that the electronic him you sure you can get the electronic communications in electronic storage are protected and twenty seven zero three is simply an exception to twenty  seven if you're i'm going to ask a technical thing to help me without it and do it no more than fifteen seconds yes to what i did is i looked at the warrant which is in the rock and it's signed by james francis judge says southern district new york is that right yes wrong ok so then i went over to the rule forty one and i assume good fell within be a what is it it's it's b one am i right saying yes yes so so what's the answer to that the answer says the judge francis says the judge francis has authority to issue a warrant to search for property in new york yeah i agree with you in warrants are distinctly territorial devices they're not extra territorial devices so we're looking at federal and you didn't make much of a point of this in your brief and so i suspect that the magistrate judge be unable to issue the order because redmond washington is not in new york that's a question that's right oh he would not be able to issue the warrant and it's not because redmond washington is not in new york it's because warrants although there is nationwide ability to reach it ins with in the united states warrants are not extraterritorial no just by way of wrapping up the government asks this court to granted an extraordinary power and it's a power that congress did not think it was granting law enforcement in one thousand nine hundred eighty six and certainly did not intend to grant to every police officer and every sheriff's deputy anywhere in the country back then if the police needed to gather evidence from all over the world they would have to engage with law enforcement everywhere else in those countries the internet makes it possible now to reach a lifetime of correspondence for billions of people all across the world but only congress can grant that power and this goes to justice ginsburg's point think about the questions that the court has been wrestling with today it's about the architecture of other providers it's a when there were conversations about where the internet is headed there is conversation about whether this will kill the tech sector how much of an international consensus there is about the sovereignty of data these are all questions that only congress can answer meanwhile this court's job is to defer to defer to congress to take the path of it is the least likely to create international tensions and if you try to team with this without the tools that  that only congress has you are as likely to break the cloud as you are to fix it if there are no further questions i thank the court for its attention we were  jurisdiction to issue the relevant warrant in this case this is on page six a of the government's appendix to its brief there is then a definition of a court of competent jurisdiction on page twelve a in the appendix to the government's brief which defines it to include any magistrate judge that has just jurisdiction over the offense being investigated as well as several other bases this was a patriot act amendment designed to expand the authority of courts to issue orders  second technical question is the one asked by justice kennedy on whether microsoft could voluntarily disclose this information to the government it couldn't it's barred by twenty seven o two from making disclosures except as authorized by that statute and one of the exceptions is that the government can proceed under twenty seven o three to compel the same information so microsoft is basically claiming the authority once it moves the information overseas to unilaterally disclose it to anyone but if it's in you know responding to an order that's issued by the united states it says it has no obligation to produce the information and then the substantive points here are that this statute does indeed focus on disclosure not storage twenty seven zero three begins violent quire in disclosure as to the variety of categories of information the providers may have and it backs it up with at least three more provisions that address  disclosure section ease has there is no cause of action for disclosing in accordance with the statute section f allows the government to issue preservation orders of the information to be disclosed and section g discusses now complete  discusses the execution of the warrant and it provides that the government need not be there which makes this an instrument not like a warrant that allows us to conduct a search but like a subpoena or discovery order that places obligations on the parties over whom the