SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - UNITED STATES, ) Petitioner, v. ) ) No. 17-2 MICROSOFT CORPORATION, Respondent. ) ) - - - - - - - - - - - - - - - - - - Pages: 1 through 64 Place: Washington, D.C. Date: February 27, 2018 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 UNITED STATES, 4 5 6 Petitioner, v. ) ) No. 17-2 MICROSOFT CORPORATION, 7 8 ) Respondent. ) ) - - - - - - - - - - - - - - - - - - 9 10 11 Washington, D.C. 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 22 E. JOSHUA ROSENKRANZ, ESQ., New York, New York; on behalf of the Respondent. 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 MICHAEL R. DREEBEN 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 E. JOSHUA ROSENKRANZ, ESQ. 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF: 9 MICHAEL R. DREEBEN 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 3 32 61 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 3 (10:21 a.m.) 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 10 11 MR. DREEBEN: Mr. Chief Justice, and may it please the Court: Section 2703 of the Stored 12 Communications Act focuses on classically 13 domestic conduct. 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 It requires disclosure in a JUSTICE SOTOMAYOR: It actually 18 requires a search. 19 is really a substitute for the government's 20 searching. 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 It's -- the disclosure here The Act permits the government to So why -- you describe it as if it's Heritage Reporting Corporation Official - Subject to Final Review 4 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. 5 directly on the provider. 6 provider to make disclosure of information. 7 That is a function that's classically performed 8 by a subpoena or a discovery order. 9 not authorize the government to go in, sit down The first function operates It requires a It does 10 at Microsoft's facilities, put hands on 11 keyboards -­ 12 JUSTICE SOTOMAYOR: Well, actually, it 13 does. 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 If you read -- if you read the MR. DREEBEN: So, presumably, not 19 because the statute actually says that the 20 government can get a warrant requiring 21 disclosure. 22 case is an act on the provider. 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 The act that -- that occurs in the And the Heritage Reporting Corporation Official - Subject to Final Review 5 1 2 information. 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. 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: 25 JUSTICE GINSBURG: And here a Mr. Dreeben -­ Mr. Dreeben, may I Heritage Reporting Corporation Official - Subject to Final Review 6 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. 4 of storage didn't exist. This kind 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. 13 it isn't just all or nothing. 14 And 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. 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 And we think Heritage Reporting Corporation Official - Subject to Final Review 7 1 2 whether it's stored overseas. Microsoft here made a unilateral 3 decision to move information overseas. 4 in the law requires it. 5 prohibits it. 6 Nothing Nothing in the law 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? Heritage Reporting Corporation Official - Subject to Final Review 8 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. 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 What we're saying is that it has 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. 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 25 I mean, there are computers MR. DREEBEN: Yes. And this Court has a test for determining whether an application Heritage Reporting Corporation Official - Subject to Final Review 9 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. 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 11 If the focus of the abroad. 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? 17 mean, there's a chain of activity that's 18 required here. 19 MR. DREEBEN: 20 JUSTICE GORSUCH: 21 22 I There -­ Why should we divorce the first half from the second? 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 Heritage Reporting Corporation Official - Subject to Final Review 10 1 from that text what is the focus of the 2 statute. 3 4 JUSTICE GORSUCH: I understand that, 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: 10 JUSTICE GORSUCH: 11 ignore that, I think. 12 position? 13 Yes, it does, but -­ MR. DREEBEN: And you'd ask us to Is that -- is that your 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. 25 all located abroad. Heritage Reporting Corporation They're Official - Subject to Final Review 11 1 I am fairly confident that the courts 2 would say the obligation falls on you. 3 raise the money is your concern. 4 extraterritorial application of the statute to 5 say bring the money home and pay the fine. 6 It's not an And that's the same that we're asking 7 to happen with the warrant. 8 of the statute says nothing about 9 extraterritorial conduct. 10 How you In fact, the text 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. 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 25 But I think it's fair to say that Things have changed. But what you're asking us to do is to imagine what Congress Heritage Reporting Corporation Official - Subject to Final Review 12 1 would have done or intended in a totally 2 different situation today. 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 9 And the problem Now I understand there's a bill that's 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 Heritage Reporting Corporation Official - Subject to Final Review 13 1 here. 2 is seeking to create. 3 This is largely a mirage that Microsoft For the 20 or so -­ 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 9 MR. DREEBEN: No foreign government has come to this Court saying that the order 10 that we seek would conflict with its law. 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 The In fact, the complaints all run the 17 other way. 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 The complaints are that when And the Microsoft decision has caused Heritage Reporting Corporation Official - Subject to Final Review 14 1 grave interference with our ability to help our 2 foreign law enforcement partners enforce their 3 own laws. 4 puts us out of compliance with our 5 international obligations. 6 It is -- the Microsoft decision also 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. 15 is exactly what the government is arguing for, 16 and we are the ones who are really urging the 17 status quo. 18 So the international baseline here 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. 24 where it is in the legislative process? 25 bipartisan. Can you tell me It's It's supported by the Department Heritage Reporting Corporation Official - Subject to Final Review 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. 5 shouldn't we wait for that bill? 6 MR. DREEBEN: Why Well, first of all, this 7 Court's duty is to interpret the statute under 8 its own statutory interpretation canons. 9 don't think that any -­ 10 JUSTICE SOTOMAYOR: There's no circuit 11 split. 12 which is an unusual act to start with. 13 I We granted cert before a circuit split, MR. DREEBEN: Well, there are a couple 14 of reasons for that. 15 issued a written opinion since Microsoft has 16 agreed with the Second Circuit. 17 Circuit's decision has caused grave and 18 immediate harm to the government's ability to 19 enforce federal criminal law. 20 No other court that has And the Second 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. 23 has not been voted on by any committee. 24 certainly has not yet been enacted into law. 25 It And it And I think this Court's normal Heritage Reporting Corporation Official - Subject to Final Review 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: 6 MR. DREEBEN: 7 final point on this. Mr. Dreeben -­ 8 JUSTICE KAGAN: 9 MR. DREEBEN: If I can just make one Please. 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. 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 actually endorses in an 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 5 is not a new problem. 6 government has been very active in putting 7 subpoenas on branch offices of foreign banks 8 that have access to -­ 9 This In the banking area, the JUSTICE GORSUCH: Mr. Dreeben, you 10 used the word subpoena, and -- and we've talked 11 about that a lot. 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. And could you help me out 16 MR. DREEBEN: 17 JUSTICE GORSUCH: 18 MR. DREEBEN: 19 JUSTICE GORSUCH: 20 Yes. Yes. And elsewhere in the statute Congress used the word subpoenas. 21 MR. DREEBEN: 22 JUSTICE GORSUCH: 23 Unlike subpoenas. Yes. So we know it knew the difference. 24 MR. DREEBEN: Yes. 25 JUSTICE GORSUCH: Help me out with Heritage Reporting Corporation Official - Subject to Final Review 18 1 2 that. 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. 7 obligation on a provider to make disclosure. 8 What a warrant does, if it's in its 9 It puts an 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. 16 driver's seat. It puts the government in the 17 This statute says -­ 18 JUSTICE GORSUCH: It doesn't do that. 19 I got you. 20 what are we supposed to make of that? 21 But it uses the word warrant. MR. DREEBEN: So 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: 25 order, which is the intermediate form of A subpoena; a 2703(d) Heritage Reporting Corporation Official - Subject to Final Review 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. 12 territorial limitations of Rule 41 are not 13 incorporated into the statute. 14 statute has its own territorial provision which 15 provides for nationwide service of disclosure 16 orders. 17 The In fact, the 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 Heritage Reporting Corporation Official - Subject to Final Review 20 1 ex-ante objection before the instrument is 2 executed. 3 With a warrant, parties don't get that 4 opportunity. 5 Grubbs, the government shows up with a warrant. 6 The citizen's obligation is to comply. 7 Under United States versus 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. 14 the government to just come right in. 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 A warrant allows If we But we don't do that under 2703. And 21 Congress didn't intend that we do that. 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. What So the court Heritage Reporting Corporation Official - Subject to Final Review 21 1 below thought that two things were going on: 2 One was we were actually executing a warrant 3 overseas. 4 obligation on a domestic provider to comply 5 with a domestic court order with information 6 from wherever it's drawn. 7 8 That's not true. We're putting an And, second, the court below thought that we were invading privacy overseas. 9 There are two fallacies I think in the 10 view that this is a case about privacy. 11 not a case about privacy. It's 12 The government has the gold standard 13 of an instrument to address privacy interests 14 here: 15 a judge that describes with particularity what 16 we want. 17 system of how privacy interests are addressed. 18 19 20 a probable-cause-based warrant issued by That is the hallmark in our domestic JUSTICE BREYER: Well, I don't -- I don't know if you want to -­ 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. Heritage Reporting Corporation If the Official - Subject to Final Review 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? 5 you did that, would Microsoft have any 6 opportunity to contest that search? 7 MR. DREEBEN: And if 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. 24 is useful for us in certain circumstances for 25 the content of information under the way that The subpoena instrument Heritage Reporting Corporation Official - Subject to Final Review 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. 6 a court first. 7 The provider has to make disclosures. 8 9 We don't have to go to We just issue the instrument. JUSTICE ALITO: other question? Could I ask you one What is happening when these 10 orders are sought now outside of the Second 11 Circuit? 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? 16 they continuing to issue the kinds of orders 17 that were issued in the past? 18 MR. DREEBEN: I mean, there's been talk about Are they doing that, or are 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 25 And in the case of providers like Google, algorithms enable them to move Heritage Reporting Corporation Official - Subject to Final Review 24 1 information around the globe in order to 2 maximize the efficiency of their system. 3 much of the information that we're getting is 4 coming from overseas. 5 protests from foreign governments. 6 And And we have heard no JUSTICE ALITO: What is happening when 7 these district courts outside of the Second 8 Circuit are issuing these orders? 9 service providers are not appealing? 10 MR. DREEBEN: The Internet 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. 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. 19 information that's extremely vital to criminal 20 law enforcement because so much criminal law 21 enforcement today is international. 22 JUSTICE BREYER: And if Congress And it's 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 Heritage Reporting Corporation Official - Subject to Final Review 25 1 been bothering me on both sides. 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. 9 They're with Right? MR. DREEBEN: Yes. 10 JUSTICE BREYER: 11 MR. DREEBEN: 12 JUSTICE BREYER: That's what it says. Yes. 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: 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? 20 did. 21 think. 22 23 24 25 A magistrate judge Now, so that's what you You went to this person, a magistrate, I MR. DREEBEN: No, that's not what we did. JUSTICE BREYER: Oh, you went to the district judge? Heritage Reporting Corporation Official - Subject to Final Review 26 1 2 MR. DREEBEN: court -­ 3 4 We went to the district JUSTICE BREYER: problem. So it's the same 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: 9 MR. DREEBEN: Yeah. Okay. 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. 14 to the district where the crime is being 15 investigated -­ It can go 16 JUSTICE BREYER: 17 MR. DREEBEN: -- and that court has 18 nationwide authority. It's not trammeled by 19 Rule 45. 20 21 22 JUSTICE BREYER: did? Yeah. But is that what you What did you do here? MR. DREEBEN: We did that here. 23 did that here. 24 conducted out of one district -­ 25 We This is an investigation being JUSTICE BREYER: Okay. Okay. Heritage Reporting Corporation Second Official - Subject to Final Review 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: 10 11 Yes. JUSTICE BREYER: And what happens then? 12 MR. DREEBEN: 13 problem, and it's why I -- I -­ 14 15 16 So this is a very common JUSTICE BREYER: All right. So what is the answer? MR. DREEBEN: The answer is that 17 courts conduct a comity analysis. 18 the Restatement of Foreign Relations -­ 19 JUSTICE BREYER: Okay. They look to 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 -­ 25 MR. DREEBEN: Yes. Heritage Reporting Corporation Official - Subject to Final Review 28 1 2 JUSTICE BREYER: -- which you say is not here -­ 3 MR. DREEBEN: 4 JUSTICE BREYER: 5 Yes. if there is -­ 6 MR. DREEBEN: 7 JUSTICE BREYER: 8 -- this Italian law, Yes. -- which says you can't bring it. 9 MR. DREEBEN: 10 Yes. 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 14 MR. DREEBEN: Well, I think what's more -­ 15 JUSTICE BREYER: 16 MR. DREEBEN: Right. -- radical is that 17 Microsoft's position is that no court ever gets 18 to ask the question. 19 overseas, we're just out of luck. 20 even ask a court for an order that would 21 require its production. 22 If the data is stored We can't 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 -­ Heritage Reporting Corporation Official - Subject to Final Review 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: 5 JUSTICE KAGAN: 6 7 Yes. And if you are, what would that look like and when would it occur? 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 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. 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 It's a problem that courts have been JUSTICE KAGAN: We May I take you back to 13 the language of the statute? 14 argument in your brief focuses on 2703. 15 you say -­ 16 MR. DREEBEN: 17 JUSTICE KAGAN: Most of your And Yes. -- 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: 23 JUSTICE KAGAN: So -­ If you do expand your 24 field of vision and -- you know, what would you 25 say there Congress was -­ Heritage Reporting Corporation Official - Subject to Final Review 31 1 MR. DREEBEN: So 2701 is a statute 2 that blocks access. 3 hackers. 4 focused statute, but it would reach foreign 5 conduct that hacked into a computer located in 6 the United States. 7 8 And we think that is a domestically JUSTICE KAGAN: The computer is here -­ 9 MR. DREEBEN: 10 11 It's a protection against JUSTICE KAGAN: Yes. -- but the hacker is 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. 15 not taken a position in this Court on its 16 focus. 17 information by providers. 18 We have It prohibits certain divulgences of 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. 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 Microsoft's Heritage Reporting Corporation Official - Subject to Final Review 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. 7 that the Court should reverse that judgment. 8 If I could save the rest of my time 9 And we think that that's wrong and for rebuttal. 10 11 CHIEF JUSTICE ROBERTS: Thank you, counsel. 12 Mr. Rosenkranz. 13 ORAL ARGUMENT OF E. JOSHUA ROSENKRANZ 14 ON BEHALF OF THE RESPONDENT 15 16 17 MR. ROSENKRANZ: Mr. Chief Justice, and may it please the Court: 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. 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. Yet the government wants to use Heritage Reporting Corporation Official - Subject to Final Review 33 1 2 Now that is a foreign scenario, not a -- 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. 11 Is that so? 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 25 CHIEF JUSTICE ROBERTS: Well, but it -- it seems to me you're assuming the answer to Heritage Reporting Corporation Official - Subject to Final Review 34 1 the question. 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 The government's position, of It's not the government's fault that 6 it's located overseas. 7 government doesn't care. 8 subpoena where you go, and Mr. Dreeben used the 9 example of funds, but it could be any other 10 11 I suspect the Just like any other evidence. 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. 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 No one disputes that Heritage Reporting Corporation Official - Subject to Final Review 35 1 2 e-mails stored on their soil. 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? 9 where the owner of the e-mail lives or where 10 Aren't there some other factors, the service provider has its headquarters? 11 MR. ROSENKRANZ: 12 JUSTICE KENNEDY: 13 14 No, Justice -­ Or do we have -­ we're forced to this binary choice? MR. ROSENKRANZ: Your Honor, that is a 15 consequence of this Court's analysis in 16 Morrison, which no one is challenging. 17 so, yes, you've got to figure out what the 18 focus is at step 2. 19 But, 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. 23 that argument. 24 25 And I want to be sure to get to If you -- if you look at this statute, the focus is on the storage. This is the Heritage Reporting Corporation Official - Subject to Final Review 36 1 Stored Communications Act. 2 level, that's what the focus is. 3 specifically on securing communications sitting 4 in storage. 5 At the most basic And it's more Congress confronted this brave new 6 world of people entrusting their communications 7 to third-party storage providers. 8 make sure that Americans felt comfortable 9 putting their communications there. 10 JUSTICE ALITO: It wanted to Mr. Rosenkranz, let me 11 -- this is what troubles me. 12 if Congress enacted legislation that modernized 13 this, but in the interim, something has to be 14 done. 15 It would be good 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. 19 that there is evidence of this crime in e-mails 20 that are in the possession of an American 21 Internet service provider. 22 an urgent need for the information. 23 The government shows probable cause And there they have But the provider has chosen to store 24 the data overseas and, in fact, in some 25 instances, has actually broken it up into Heritage Reporting Corporation Official - Subject to Final Review 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. 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. 24 correct? 25 MR. ROSENKRANZ: And that is That's not No, Your Honor, Heritage Reporting Corporation Official - Subject to Final Review 38 1 that's not correct. 2 JUSTICE ALITO: All right. Well, all 3 right. 4 store it overseas. 5 information, other than through these -- these 6 very time-consuming MLAT procedures? 7 The service provider has chosen to There's no way to get the 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. 11 for the government, the other governments 12 respond urgently. 13 JUSTICE BREYER: If it's urgent Just -- there are two 14 parts to this in my mind. 15 which I'll have to work my way through. 16 heard the answer to that. 17 One is the language, You 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 22 fair shot. 23 account. 24 standards. 25 Everybody would get a You'd take foreign interests into Maybe you'd use Aerospatiale One brief tells us they're not good Heritage Reporting Corporation Official - Subject to Final Review 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. 8 interpret the statute Congress wrote, rather 9 than innovating and adopting its own new 10 And the job of this Court is to 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. 15 Congress wants to do that and it's a decision 16 that applies in certain -­ That's Congress's decision if 17 JUSTICE SOTOMAYOR: 18 JUSTICE KENNEDY: Mr. Rosenkranz -­ 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. Heritage Reporting Corporation Official - Subject to Final Review 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. 6 which the -- or a scenario in which the 7 government has used a warrant. 8 9 This is a statute in A subpoena could not reach a lot of 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: 18 JUSTICE KENNEDY: I'm sorry? It seems odd to me 19 that if -- you could voluntarily disclose, but 20 they couldn't ask for a subpoena. 21 quite mesh, does it? 22 23 24 25 MR. ROSENKRANZ: That doesn't Well, Your Honor, my point is -­ JUSTICE KENNEDY: I recognize we have a difficult statute here. Heritage Reporting Corporation Official - Subject to Final Review 42 1 MR. ROSENKRANZ: Your Honor, if we 2 voluntarily disclosed, it would be a violation 3 of our obligations to our customer. 4 also, by the way, in this context, be a 5 violation of European law. 6 7 Now I just -- I want to back up, though. 8 9 10 It would There are a lot of -­ JUSTICE GORSUCH: Mr. Rosenkranz, do you agree that after 180 days the government 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 5 Ireland. 6 and fetch them from Ireland. 7 They are stored in And the government is asking us to go 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. Heritage Reporting Corporation Official - Subject to Final Review 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? 4 mentally imagine this, what has to happen? 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 9 MR. ROSENKRANZ: happen in Ireland. If I'm trying to Something has to These e-mails, Justice 10 Sotomayor, exist only in Ireland. 11 happens in -- and it exists in a four -­ 12 JUSTICE KENNEDY: And what Something has to 13 happen electronically or with human 14 intervention? 15 MR. ROSENKRANZ: 16 intervention -- there's a human -­ 17 JUSTICE KENNEDY: 18 You No -- no human So someway you push the button in Washington? 19 MR. ROSENKRANZ: 20 JUSTICE KENNEDY: Yes. 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 Heritage Reporting Corporation Official - Subject to Final Review 45 1 seize evidence, it would certainly implicate 2 foreign interests. 3 4 5 And so if the DEA -- just let me just draw out this example. 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. 15 computer scientists' amicus brief spells this 16 out in great detail. And, by the way, the 17 JUSTICE SOTOMAYOR: 18 MR. ROSENKRANZ: Okay. What happens then? 19 It interfaces with a hardware computer in a 20 hardware facility. 21 for the e-mail on that disk after verifying 22 certain protocols. 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 spins a disk. It looks It reads physical Heritage Reporting Corporation It Official - Subject to Final Review 46 1 2 then safeguards them and sends them back here. 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. 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 11 If the government did what would be in Ireland. 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 18 19 20 21 22 23 MR. ROSENKRANZ: The government could issue a warrant -- I believe that's -­ JUSTICE GORSUCH: Push you aside and do the search in Redmond? MR. ROSENKRANZ: authorizes it. This warrant There's nothing -­ JUSTICE GORSUCH: No, could -- could 24 the government do that outside of the Stored 25 Communications Act? Could the government issue Heritage Reporting Corporation Official - Subject to Final Review 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. 6 there is no question that that search is going 7 on in Ireland and the government -­ 8 9 But if the government did that, JUSTICE ALITO: And what could -- and 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. 15 is -­ But my -- my point here 16 JUSTICE ALITO: 17 CHIEF JUSTICE ROBERTS: 18 JUSTICE ALITO: 19 20 would that be? What kind of -­ Counsel -­ -- what kind of suit But anyway, never mind. 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 5 provide that service to your customers? 6 MR. ROSENKRANZ: Could you Is it theoretically 7 possible, yes, but it would never happen. 8 the reason it would never happen is that we 9 have 200 million active customers here in the 10 United States. 11 tail -­ 12 And They -- this is really a CHIEF JUSTICE ROBERTS: Well -- I'm 13 sorry. 14 seriously compromised if the server is 15 overseas? 16 In -- in what way is their service 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. 22 service for those 200 -­ 23 It actually slows down the e-mail 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 6 sure that our customers get the best possible 7 service. 8 of a second's delay actually costs us 9 customers. 10 We build them in order to make Even a microsecond -- even a fraction And so we would -­ 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. 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 We 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. 23 e-mails abroad, it's 54 of them out of 60,000. 24 It's 99.9 -­ 25 The percentage of those that relate to CHIEF JUSTICE ROBERTS: I know, but my Heritage Reporting Corporation Official - Subject to Final Review 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. 11 going to be protected from disclosure to the 12 government? 13 From here to the next block, that is 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. 18 Microsoft's services whether they are in Canada 19 or Mexico because those are available by MLATs. 20 They don't use 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 Heritage Reporting Corporation Official - Subject to Final Review 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 14 15 MR. ROSENKRANZ: Yes, that is correct, Justice Alito. 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. Heritage Reporting Corporation Official - Subject to Final Review 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. 15 strained. The whole idea of territoriality is 16 Wouldn't you agree with that? 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. 21 Are they movable? 22 movable as well. 23 They are actually on a hard drive. Yes. But letters are And they are under protection of 24 foreign laws, which, by the way, are really 25 quite robust. So moving -- moving just back to Heritage Reporting Corporation Official - Subject to Final Review 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 7 That is what ties these provisions together and that is the focus of -­ 8 9 JUSTICE KAGAN: Well, why do we need 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? 12 MR. ROSENKRANZ: Well, Your Honor, 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. 17 allowed to look at how it relates to other 18 provisions. 19 You are at a minimum The focus is still on protecting 20 e-mails in electronic storage from government 21 intrusion. 22 It is not about -­ JUSTICE KAGAN: Well, how do we know, 23 really? I mean, it seems as though we have a 24 choice between two things: 25 Congress is doing is it's regulating the one is what Heritage Reporting Corporation Official - Subject to Final Review 54 1 disclosure in the United States of electronic 2 communications that are stored everywhere in 3 the world. 4 saying. 5 And that's what the government is 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 9 the United States. 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. 13 give me your best shot. 14 (Laughter.) 15 MR. ROSENKRANZ: Okay. So 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. 22 E-mails that are in electronic storage. 23 And that is what? Congress was concerned that e-mails 24 shared with a service provider would lose all 25 Fourth Amendment protection under the Heritage Reporting Corporation Official - Subject to Final Review 55 1 third-party doctrine. 2 pass 2703 to author disclosure by a warrant. 3 Law enforcement already had access by a 4 warrant. 5 Congress did not need to The focus was on enhancing the 6 security of e-mails that were in electronic 7 storage. 8 9 Now, back up and relate the various provisions, 2701, 2702, 2703. I was saying 10 earlier at the most basic level this is the 11 Stored Communications Act. 12 communications that are sitting in storage. 13 It's about securing 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. 19 Required Disclosure of Customer Communications 20 Or Records. 21 the Act when it amended it. 22 2703 is headed And Congress put that heading in And it seems to me that the government 23 might have a strong position there that the 24 statute focuses on disclosure. 25 takes place in Washington, not in Ireland. And disclosure Heritage Reporting Corporation Official - Subject to Final Review 56 1 MR. ROSENKRANZ: Well, Your Honor, 2 2703 -- this goes back to Justice Kagan's 3 question -- it cannot be read in isolation from 4 2702. 5 2701 and 2702 are with 2703. CHIEF JUSTICE ROBERTS: Well, 2702 6 says "voluntary disclosure of customer 7 communications or records." 8 takes place in Washington, not Ireland. 9 MR. ROSENKRANZ: And that, too, 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 20 21 And 2703 is simply an exception to 2702. 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 4 right? Is that 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. 9 right or do you know that well enough in your 10 Am I head? 11 MR. ROSENKRANZ: Yes, Your Honor. 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 21 So that's how I got in by -- into my 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 -­ Heritage Reporting Corporation Official - Subject to Final Review 58 1 2 MR. ROSENKRANZ: -- the provision that 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." 7 MR. ROSENKRANZ: Yes, Your Honor. 8 JUSTICE BREYER: So I said what is a 9 warrant? It is judge Francis's warrant. 10 in the Southern District of New York. 11 to Rule 41, and there 41-B-1, which -­ He is I went 12 MR. ROSENKRANZ: 41, yes. 13 JUSTICE BREYER: Yeah, so-- so what's 14 the answer to that? 15 Francis -- this says that Judge Francis has 16 authority to issue a warrant to search for 17 property in New York. 18 The answer says that Judge MR. ROSENKRANZ: Yeah, I -- I agree 19 with you, Justice Breyer. And -- and warrants 20 are distinctly territorial devices. 21 not extraterritorial devices. They are 22 So if we're looking at federal rule -­ 23 JUSTICE KAGAN: I think the question JUSTICE BREYER: But you didn't make 24 25 -- Heritage Reporting Corporation Official - Subject to Final Review 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 10 JUSTICE ALITO: -­ 11 12 13 No, but Mr. Rosenkranz MR. ROSENKRANZ: But this incorporates -­ 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? 18 question. That's the 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 Heritage Reporting Corporation Official - Subject to Final Review 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. 20 about the architecture of other providers. 21 It's -- there were conversations about where 22 the Internet is headed. 23 about whether this will kill the tech sector, 24 how much of an international consensus there is 25 about the sovereignty of data. It's There is conversations Heritage Reporting Corporation Official - Subject to Final Review 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. 12 respectfully request that the Court affirm the 13 Second Circuit. 14 15 16 17 CHIEF JUSTICE ROBERTS: Thank you, counsel. Two minutes, Mr. Dreeben. REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN 18 ON BEHALF OF THE PETITIONER 19 MR. DREEBEN: 20 21 And we I have four quick points, two technical and two substantive. The technical point first is, Justice 22 Breyer, you asked what the authority of the 23 district court is. 24 district court, in this case for a magistrate 25 judge, comes from, first, 2703, which entitles The authority of the Heritage Reporting Corporation Official - Subject to Final Review 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. 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 11 There is then a other bases. 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. 18 It's barred by 2702 from making disclosures, 19 except as authorized by that statute. 20 It couldn't. And one of the exceptions is that the 21 government can proceed under 2703 to compel the 22 same information. 23 claiming the authority, once it moves the 24 information overseas, to unilaterally disclose 25 it to anyone. So Microsoft is basically But if it's in, you know, Heritage Reporting Corporation Official - Subject to Final Review 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. 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 2703 begins by more provisions that address disclosure. 11 Section E says there is no cause of 12 action for disclosing in accordance with the 13 statute. 14 issue preservation orders of the information to 15 be disclosed. 16 complete the sentence? Section F allows the government to And Section G discusses -- may I 17 CHIEF JUSTICE ROBERTS: 18 MR. DREEBEN: Sure. -- 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. Heritage Reporting Corporation Official - Subject to Final Review 64 1 2 3 4 CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:22 a.m., the case was submitted.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 65 Official - Subject to Final Review � account [7] 5:6,9 6:12 29:21 39:3, answer [15] 24:25 27:15,16,19 33: 25 34:18 38:16 39:16 40:5 50:14 10:21 [2] 1:15 3:2 achieves [1] 5:19 56:9 57:21 58:14,14 61:2 11:22 [1] 64:3 across [2] 34:23 60:15 answered [2] 11:11 50:2 12A [1] 62:6 Act [27] 3:12,20 4:21,22 7:6,20 15: answers [1] 42:19 15 [1] 56:23 antecedent [2] 10:8,17 12,21 21:22 22:1 26:11 30:7 32: 17-2 [1] 3:4 anticipates [1] 10:7 19,21 33:20 34:2,20 36:1 40:11, 18.1a [1] 14:13 18 43:19 46:25 48:19 55:11,21 56: anybody [2] 18:13,15 180 [2] 41:11 42:9 anyplace [1] 52:9 10 62:11 1958 [2] 7:9 29:12 action [1] 63:12 anyway [1] 47:19 1986 [6] 6:3,11,20 11:13,14 60:6 actions [2] 42:21,22 apart [2] 16:24 18:10 1987 [1] 7:10 active [2] 17:6 48:9 appealing [1] 24:9 activity [2] 9:17 10:15 appeals [1] 24:11 2 [1] 47:14 acts APPEARANCES [1] 1:17 [1] 2 35:18 [1] 9:25 actual appendix [2] 62:4,6 20 [1] 13:2 [17] 3:17 4:12,19 16:12 actually application [7] 7:21 8:4,7,25 9:8 200 [3] 48:9,22 49:16 18:4 21:2 28:25 30:20 33:20 36: 10:19 11:4 [1] 2010 33:17 25 37:14,15 43:10 48:21 49:8 52: applied [1] 29:23 2018 [1] 1:11 applies [2] 19:18 40:16 2,20 27 [2] 1:11 57:22 [1] 39:19 adapt apply [1] 22:1 [5] 2701 30:21 31:1,13 55:9 56:4 [1] 17:1 add approach [1] 23:21 2702 [13] 30:21 31:14 40:21,23 55: [1] 22:22 adding approached [1] 9:23 9 56:4,4,5,13,14,15,20 62:18 [3] 17:1 21:13 63:10 address architecture [1] 60:20 2703 [27] 3:11 13:15,22 16:25 19: [1] 21:17 addressed area [1] 17:5 19 20:20 22:15,19,21 30:14,18 31: [3] 12:18 20:24 31:20 addresses areas [1] 22:18 20 53:10,13 54:12,18,19 55:2,9,18 [1] 32:3 adds aren't [2] 22:18 35:8 56:2,4,13,19 61:25 62:21 63:6 [1] 40:9 adopting argue [1] 30:19 2703(a [1] 57:23 [2] 7:9 39:23 Aerospatiale arguing [3] 8:6 14:15 35:19 [1] 2703(d 18:24 Affairs [1] 13:12 argument [13] 1:14 2:2,5,8 3:4,7 3 affirm [1] 61:12 10:4 30:14 32:13 35:20,21,23 61: age [1] 12:16 17 3 [1] 2:4 agree [9] 6:2,19 7:19 32:18 42:9, arguments [1] 6:5 32 [1] 2:7 around [2] 24:1 52:13 12 52:15,16 58:18 35 [1] 13:22 agreed [1] 15:16 aside [5] 14:22 20:18 46:7,8,19 4 agreeing [1] 29:1 asks [1] 60:3 41 [9] 18:9 19:11,11,12 20:15 22:8 agreement [1] 28:11 aspect [1] 5:7 57:7 58:11,12 agrees [2] 46:4 53:15 asserted [1] 28:22 41-B-1 [1] 58:11 ahead [1] 46:16 assertion [1] 30:2 45 [1] 26:19 algorithms [1] 23:25 assets [1] 10:24 [18] 9:4 21:20 23:8 24:6 36: Alito Assistance [1] 13:20 5 10 37:10,22 38:2 47:8,16,18 51: associated [1] 20:10 50 [1] 14:7 10,14,15 52:5,17 59:9,13 assume [3] 14:18 31:18 48:25 [1] 54 49:23 allowed [1] 53:17 assumed [1] 57:7 6 allowing [1] 5:8 assuming [2] 14:22 33:25 allows [6] 19:24 20:13 23:4 26:12 assure [1] 49:11 60,000 [2] 49:21,23 63:13,22 Atlantic [1] 43:17 61 [1] 2:10 alludes [1] 12:3 attention [1] 61:11 6A [1] 62:3 alone [1] 23:12 author [1] 55:2 9 alphabet [1] 45:24 authority [11] 14:9 16:10 25:16,16 99.9 [1] 49:24 already [1] 55:3 26:18 57:17 58:16 61:22,23 62:12, alternative [2] 3:22 4:14 23 A although [1] 59:23 authorization [1] 18:11 a.m [3] 1:15 3:2 64:3 [2] 6:21 55:21 amended authorize [1] 4:9 ability [7] 14:1 15:18 16:13,19,20 Amendment [2] 54:25 62:11 authorized [2] 6:23 62:19 20:22 59:24 [2] 36:16,20 American authorizes [2] 5:22 46:22 able [4] 42:16 48:2 49:13 59:21 [1] 36:8 Americans available [2] 50:19 51:6 above-entitled [1] 1:13 [3] 13:4,6 27:20 amici avoids [1] 20:12 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 [1] 5:10 analogous B absolutely [2] 27:5 42:11 analysis [4] 27:17 29:3,21 35:15 access [10] 15:3 17:8 31:2 34:25 [2] 57:8,16 B-1 [1] analyzed 33:18 35:4 48:1 49:13 50:7 54:20 55:3 back [13] 7:7 8:22 11:18 12:23 14: angles [1] 26:9 accesses [1] 44:6 19 24:24 30:12 42:6 46:1 52:25 another [4] 33:15 41:5 45:25 48: accordance [1] 63:12 55:8 56:2 60:9 19 1 23 51:12 backdrop [2] 7:7 8:2 backs [1] 63:9 bank [2] 27:3,6 banking [1] 17:5 banks [1] 17:7 barred [1] 62:18 based [1] 16:1 baseline [1] 14:14 bases [1] 62:10 basic [8] 7:10 23:4 26:10 36:1 48: 16 50:1 53:1 55:10 basically [2] 8:11 62:22 begins [1] 63:6 behalf [8] 1:20,22 2:4,7,10 3:8 32: 14 61:18 believe [2] 34:23 46:18 below [2] 21:1,7 best [3] 49:6,17 54:13 between [4] 4:23 35:6 53:24 54: 10 big [1] 41:5 bilateral [1] 16:18 bill [5] 12:8,15 14:23 15:5 16:9 billion [1] 49:4 billions [1] 60:14 binary [2] 35:6,13 bipartisan [2] 12:9 14:25 bit [2] 22:14 26:7 block [1] 50:10 blocking [1] 29:17 blocks [1] 31:2 both [3] 5:19 7:11 25:1 bothering [1] 25:1 box [1] 44:3 branch [1] 17:7 brave [3] 6:16 36:5 55:13 break [2] 51:7 61:8 breaks [1] 37:15 BREYER [39] 21:18 24:22 25:10, 12,24 26:3,6,8,16,20,25 27:10,14, 19 28:1,4,7,10,15 38:13 39:10,15 40:5 56:21,24,25 57:6,12,15,25 58:3,8,13,19,25 59:3,6,19 61:22 brief [7] 30:14 39:25 45:15 59:1,8 62:4,7 briefs [1] 13:6 bring [2] 11:5 28:8 broader [2] 6:1 54:12 broken [1] 36:25 brought [2] 18:3 49:18 Budapest [3] 14:6,13,21 build [2] 22:21 49:5 building [1] 50:5 built-in [1] 17:1 bunch [1] 13:6 burdensomeness [1] 20:9 button [2] 44:5,18 C call [1] 39:13 called [2] 15:21 48:20 came [1] 1:13 Canada [2] 47:24 50:18 cannot [1] 56:3 Heritage Reporting Corporation Sheet 1 10:21 - cannot 66 Official - Subject to Final Review � canons [1] 15:8 compliance [1] 14:4 care [2] 34:7 52:2 complicated [1] 43:21 Carpenter [1] 19:1 comply [5] 7:15 20:6 21:4 28:23 Case [23] 3:4 4:22 7:24 9:12 10:14 42:24 19:1 21:10,11 23:24 27:1,21 28: complying [1] 33:6 24 31:19 33:5,7 37:16 42:24 43: compromised [1] 48:14 21 59:5 61:24 62:2 64:2,3 computer [9] 5:12,13 31:5,7 32:24 44:21 45:15,19 46:2 cases [3] 16:1 24:11 37:21 categories [2] 22:21 63:8 computers [4] 8:20,22 47:2 52:8 category [1] 54:21 concept [1] 11:17 cause [3] 36:18 50:10 63:11 conceptual [1] 39:16 caused [2] 13:25 15:17 concern [1] 11:3 cell [1] 50:25 concerned [3] 37:12,13 54:23 cert [1] 15:11 concerns [1] 17:2 certain [6] 10:7 15:2 22:24 31:16 concession [1] 7:24 40:16 45:22 concretely [1] 28:25 certainly [6] 15:24 37:11,16 45:1 condition [1] 39:19 59:7 60:6 conduct [21] 3:13 5:23 8:14,15,18 9:1,2,7,9 10:8,17 11:9 22:3,12 27: chain [1] 9:17 17 29:3,20 31:5,13 47:2 63:22 challenging [1] 35:16 changed [1] 11:24 conducted [1] 26:24 CHIEF [16] 3:3,9 32:10,15 33:24 confident [1] 11:1 47:17,20 48:12,23 49:10,25 55:17 conflict [3] 13:5,10 30:2 56:5 61:14 63:17 64:1 conflicts [3] 12:11 13:7 29:22 choice [3] 35:6,13 53:24 confronted [2] 17:3 36:5 chose [2] 4:17 51:19 Congress [34] 6:9,16,23 7:6 11:25 12:15 17:20 19:5 20:21,22 23:1 chosen [3] 7:16 36:23 38:3 24:13 30:25 36:5,12 39:5,11,12 circuit [10] 15:10,11,16 23:11,15, counts [1] 31:24 couple [3] 6:19 15:13 54:16 course [2] 34:2 50:8 COURT [50] 1:1,14 3:10,14 6:6,20, 22 7:12,13 8:10,10,12,12,24 9:5, 23 10:22 13:9,22 14:11 15:14 19: 25 20:25 21:5,7 23:6,18 26:2,17 28:17,20 29:2,11,14,18 31:15 32: 7,16 33:13 37:13 40:7 60:3,19 61: 11,12,23,24 62:1,5 63:24 Court's [9] 7:7 8:2,17 10:14 15:7, 25 24:12 35:15 61:2 courts [8] 11:1 14:8 17:3 24:7 27: 17 29:24 30:4 62:12 covered [1] 22:18 create [5] 12:7,20 13:2 18:5 61:4 crime [3] 3:15 26:14 36:19 crimes [1] 36:17 criminal [8] 15:19 18:10 24:19,20 25:8,13 50:8 58:6 cross-reference [1] 53:3 custody [1] 5:17 customer [4] 32:23 42:3 55:19 56: 6 customer's [1] 20:25 customers [9] 40:25 47:25 48:5,9 49:6,9,11,16 50:15 Cybercrime [1] 14:6 devices [2] 58:20,21 difference [2] 17:23 31:22 different [4] 12:2 19:3,4 26:6 difficult [4] 22:14 31:14 41:25 51: 20 digital [2] 32:24 43:14 directly [3] 4:5 34:18 44:6 disagree [2] 14:20 52:18 disagreement [1] 14:22 disclose [7] 10:7 31:25 40:19 41: 15,19 62:16,24 [4] 9:16 33:9 42:2 63: 15 disclosing [1] 63:12 disclosure [32] 3:13,18 4:1,6,21 5: 4,21 7:14 10:4 18:6,7,24 19:8,15, 18,21 25:4 33:6 35:8,21 50:6,11 54:1,7 55:2,19,24,24 56:6 63:6,7, 10 disclosures [3] 23:7 31:20 62:18 discover [1] 25:14 discovery [2] 4:8 63:23 discusses [2] 63:15,18 disk [3] 45:20,21,25 disposition [1] 24:12 dispute [1] 46:14 disputes [1] 34:22 distinction [1] 4:23 40:6,8,15 53:10,25 54:6,19,23 55: 20 24:8,16 41:12 61:13 distinctly [1] 58:20 D 1,14,20 60:5,16 61:2,3,7 Circuit's [2] 15:17 23:21 district [13] 23:18 24:7 25:16,18, D.C [3] 1:10,19 46:3 25 26:1,14,24 57:3,19 58:10 61: circumstance [1] 29:2 Congress's [2] 22:23 40:14 data [5] 16:16 28:18 35:7 36:24 60: 23,24 circumstances [1] 22:24 consensus [1] 60:24 25 citizen [1] 36:16 consequence [1] 35:15 divorce [1] 9:21 dating [1] 7:7 citizen's [1] 20:6 construing [1] 6:20 divulgences [1] 31:16 days [2] 41:11 42:9 claiming [1] 62:23 contempt [1] 29:8 doctrine [1] 55:1 DEA [3] 43:24 45:3 46:2 classic [1] 47:1 content [1] 22:25 documents [1] 29:16 deal [3] 15:2 29:19 34:14 classically [2] 3:12 4:7 contents [1] 33:9 doing [5] 12:4 23:15 33:17 53:25 dealing [1] 38:18 54:6 clear [3] 5:21 22:20 26:7 contest [2] 22:6,9 decades [2] 13:15 30:5 clearly [1] 8:4 context [3] 5:2 37:20 42:4 dollar [1] 49:4 decide [1] 16:1 CLOUD [4] 15:20 33:15 40:11 61: contexts [1] 17:4 domain [1] 51:25 decided [1] 23:15 8 continuing [2] 23:16,22 domestic [15] 3:13 7:11 8:14,15, decision [12] 7:3,8,10 8:2 13:25 17 9:1,2,7,8 10:18,24 21:4,5,16 clouds [1] 6:3 control [3] 7:17 22:11 43:9 14:3 15:17 29:13 40:14,15 41:12 31:20 cognizance [1] 9:13 Convention [1] 14:14 51:17 collected [1] 9:14 conventional [2] 21:24 22:8 domestically [1] 31:3 decisions [3] 8:9,10,17 come [7] 12:23 13:9,19 19:25 20: conversation [1] 40:12 done [4] 12:1 27:21 28:12 36:14 decisive [1] 43:22 14 30:6 47:12 conversations [2] 60:21,22 down [3] 4:9 20:19 48:21 defendant [2] 10:22,23 comes [1] 61:25 convicted [1] 10:22 draw [1] 45:4 defer [2] 61:3,3 comfortable [1] 36:8 cooperation [2] 16:18 18:13 drawn [1] 21:6 defines [1] 62:7 coming [1] 24:4 copies [1] 45:25 DREEBEN [71] 1:18 2:3,9 3:6,7,9 definition [1] 62:5 4:2,18 5:24,25 6:18 7:22 8:1,24 9: comity [4] 27:17,23 29:3,20 copy [1] 32:22 delay [1] 49:8 11,19,22 10:5,9,13 11:10 12:17,21 committed [1] 36:17 CORPORATION [2] 1:6 3:5 Department [5] 1:19 13:11,12 14: 13:8 15:6,13 16:5,6,9 17:9,16,18, committee [2] 15:22,23 correct [6] 7:19 33:4 37:24 38:1 25 15:1 21,24 18:2,21 21:20 22:7 23:18 51:10,13 common [4] 27:12 53:2,4,9 depend [1] 13:20 24:10 25:9,11,22 26:1,5,9,17,22 communication [1] 25:5 correlate [1] 19:4 [2] 27:9,12,16,25 28:3,6,9,13,16 29:2, Communications [26] 3:12 11:16, correspondence [2] 32:23 60:14 Deputy 1:18 60:8 describe [1] 3:25 4,7 30:16,22 31:1,9,12 34:8 46:6 22 21:22 22:1 26:11 30:7 32:19 costly [1] 48:4 described [3] 25:7 46:6 58:5 61:16,17,19 63:18 33:10 36:1,3,6,9 46:25 47:23 48:2 costs [1] 49:8 describes [1] 21:15 49:2 53:4 54:2,8 55:11,12,19 56:7, couldn't [4] 41:12,15,20 62:17 drive [2] 43:11 52:20 [1] 12,17 counsel [4] 32:11 47:17 61:15 64: describing 55:13 driver's [1] 18:16 [1] 62:12 designed 2 compel [3] 20:23 23:22 62:21 duty [1] 15:7 [1] competent [2] 62:1,5 countries [7] 30:1 34:23 37:3,7 39: detail 45:16 E determining [1] 8:25 1 42:20 60:12 complaining [1] 13:4 [7] 35:9 37:15 45:21 48:21 [1] 10:18 e-mail detract complaints [3] 13:13,16,17 country [7] 23:13,14 24:17,18 33: 49:2 50:3 51:12 device [2] 22:23 51:5 16 37:2 60:8 complete [1] 63:16 disclosed Heritage Reporting Corporation Sheet 2 canons - e-mail 67 Official - Subject to Final Review � e-mails [22] 8:22 35:1,4 36:19 41: 9,10 43:3,11,23 44:9 48:19 49:13, 23 50:15 51:8 52:19 53:20 54:21, 22,23 55:6,16 earlier [3] 43:23 55:10,13 easy [1] 59:4 efficiency [1] 24:2 efforts [1] 33:8 either [9] 6:6,6 9:9 21:23 30:8,9 37:18,20 47:23 electronic [12] 25:5 53:5,20 54:1, 8,22 55:6,16 56:12,16,17,17 electronically [1] 44:13 elsewhere [1] 17:19 enable [1] 23:25 enact [1] 24:14 enacted [2] 15:24 36:12 encountered [1] 29:24 endorses [1] 16:12 enforce [2] 14:2 15:19 enforcement [8] 14:2 18:12 24:20, 21 54:20 55:3 60:6,11 engage [2] 47:12 60:11 enhancing [1] 55:5 enough [2] 40:1 57:9 ensures [1] 20:7 entitles [1] 61:25 entity [1] 25:4 entrusting [1] 36:6 equally [1] 50:14 ESQ [2] 1:21 2:6 essentially [2] 5:10 54:5 establishing [1] 50:9 European [2] 14:8 42:5 even [7] 9:9 28:20 39:7 49:7,7 53: 13,15 Everybody [1] 39:21 everyone [2] 46:4 52:4 everything [1] 53:14 everywhere [3] 23:13 54:2 60:12 evidence [6] 34:10 36:19 38:9 45: 1 59:24 60:10 ex-ante [2] 20:1 22:9 exact [3] 24:15,16 42:14 exactly [2] 14:15 46:16 example [3] 10:20 34:9 45:4 except [2] 37:6 62:19 exception [1] 56:19 exceptions [1] 62:20 excuse [1] 37:19 executed [2] 20:2 46:6 executes [1] 5:6 executing [1] 21:2 execution [1] 63:19 exist [3] 6:4 16:24 44:10 existence [1] 11:20 existing [1] 22:22 exists [3] 16:2 44:11 52:8 expand [2] 30:23 62:12 extraordinary [1] 60:4 extraterritorial [15] 7:20 8:4,7 9:3 11:4,9 33:20 34:2,20 42:23 43:18 47:4,14 58:21 60:1 extraterritoriality [3] 12:5 34:22 42:14 extraterritorially [1] 42:23 extremely [1] 24:19 F fabric face [1] 54:11 facilitate [1] 16:19 facilities [3] 4:10 49:4,5 facility [2] 43:12 45:20 facing [1] 55:14 fact [13] 9:13 10:16 11:7 12:3 13: [1] 16:11 16 17:12 19:13,23 27:4 33:18,22 36:24 43:3 factors [3] 27:23 35:8 40:13 failure [1] 29:20 fair [2] 11:17 39:22 fairly [2] 11:1,11 fallacies [1] 21:9 falls [2] 11:2 19:20 far [3] 37:11,12,12 fault [1] 34:5 feature [2] 51:1,1 features [1] 20:10 February [1] 1:11 federal [7] 10:22 15:19 18:9 25:7, 13 58:5,22 fell [2] 57:7,15 felt [1] 36:8 fetch [2] 43:6,25 field [2] 22:16 30:24 figure [1] 35:17 final [1] 16:7 finally [1] 20:12 financial [1] 29:25 fine [3] 10:23 11:5 39:17 first [16] 3:4 4:4 6:19 9:21 12:23 15:6 23:6 25:14 33:7 34:17 37:11 52:18 53:14 56:10 61:21,25 fix [1] 61:9 focus [22] 9:6,6,12 10:1,15 30:18, 21 31:13,16,19 35:6,18,19,25 36:2 53:1,7,13,19 55:5,18 63:5 focused [1] 31:4 focuses [5] 3:12 30:14 35:20,21 55:24 focusing [2] 17:12 54:18 follow [1] 23:14 forbid [1] 38:22 forced [1] 35:13 forcing [1] 43:24 foreign [30] 9:2 12:11 13:5,8,13,18 14:2 15:4 17:7 24:5 27:18 28:23 29:22 30:1,2,11 31:4 32:21,24,25 33:1 37:2,2 38:18,22 39:22 43:12 44:25 45:2 52:24 forget [1] 12:24 form [2] 18:9,25 forth [1] 14:19 four [2] 44:11 61:19 Fourth [1] 54:25 fraction [1] 49:7 framework [1] 29:23 Francis [5] 57:2,16,16 58:15,15 Francis's [1] 58:9 free [4] 22:17 31:25 32:2 34:13 friend [2] 18:4 19:25 function [2] 4:4,7 functions [2] 4:4 5:19 fundamental [2] 4:23 16:25 fundamentally [1] 56:11 funds [1] 34:9 furnish [1] 14:10 further [1] 61:10 G gain [1] 49:11 gather [2] 34:15 60:10 General [1] 1:18 gentleman [1] 20:17 geographic [1] 11:19 gets [4] 5:5,16 28:17 35:4 getting [4] 21:25 22:16 24:3,16 GINSBURG [7] 5:25 6:18 8:19 12: 3 33:3,14 42:21 Ginsburg's [3] 11:12 17:2 60:17 give [5] 12:10 23:1 54:13,16,16 giving [1] 39:16 glad [1] 18:2 globe [1] 24:1 Gmail [1] 37:23 gold [1] 21:12 Google [2] 23:25 37:18 GORSUCH [17] 9:11,20,24 10:3,6, 10 17:9,17,19,22,25 18:18 42:8 43:23 46:14,19,23 Gorsuch's [1] 24:25 got [6] 12:21 13:6 18:19 22:7 35: 17 57:20 gotten [1] 40:12 governing [1] 34:25 government [68] 3:20 4:9,16,20, 25 5:5,6,9,11,16,23 13:8 14:15 16: 11 17:6 18:15,23 19:7 20:5,14 21: 12 22:10 25:4 26:12 29:9 32:20 33:21 34:7,12,14 36:18 38:11,19 40:20 41:2,7 42:9 43:5 46:5,12,15, 17,24,25 47:5,7,11 48:1 49:1,12, 19 50:7,12,16,24 51:3,9 53:15,20 54:3 55:22 56:15 57:23 60:3 62: 17,21 63:13,20 government's [9] 3:19 15:18 16: 13 18:4 34:1,5 35:20 62:3,6 governments [4] 13:14,18 24:5 38:11 grab [1] 4:25 grand [6] 21:25 22:2,3,13,17 29:24 grant [3] 60:3,7,16 granted [1] 15:11 granting [1] 60:5 grappling [1] 30:5 grave [2] 14:1 15:17 great [3] 12:11 29:19 45:16 Grubbs [1] 20:5 guard [1] 52:4 guess [2] 45:6 52:5 H hacked [2] 31:5 46:3 hacker [1] 31:10 hackers [1] 31:3 half [2] 9:21 49:4 hallmark [1] 21:16 hand [1] 5:6 hands [2] 4:10 51:4 happen [9] 8:20,21 11:7 44:4,7,9, 13 48:7,8 happening [3] 23:9 24:6 46:11 happens [12] 27:2,10 36:15 37:4,9, 14 43:8,9 44:11,21 45:18 49:12 hard [3] 43:11,17 52:20 hardware [3] 43:14 45:19,20 harm [1] 15:18 head [1] 57:10 headed [2] 55:18 60:22 heading [1] 55:20 headquarters [2] 20:17 35:10 hear [2] 3:3 57:13 heard [5] 6:3 13:13 24:4 37:21 38: 16 heart [1] 34:20 held [1] 33:23 help [6] 10:21 14:1 17:11,25 26:7 56:22 helpful [1] 39:6 hold [1] 24:11 home [1] 11:5 Honor [19] 33:11 34:16 35:14 37: 25 38:7 41:22 42:1,12 49:3,14 50: 13 51:22 53:12 56:1,10 57:5,11, 22 58:7 human [5] 44:13,15,16,23 45:12 hybrid [1] 4:3 I idea [1] 52:14 identify [1] 9:25 ignorance [1] 44:2 ignore [1] 10:11 illegal [1] 47:5 illustrate [1] 10:21 imagination [1] 45:6 imagine [3] 11:25 27:5 44:4 immediate [1] 15:18 implicate [1] 45:1 implicated [1] 23:3 implications [1] 42:18 import [1] 32:22 important [1] 19:22 impose [1] 29:10 imposing [1] 35:3 impractical [1] 38:19 include [1] 62:7 including [1] 14:7 incorporated [1] 19:13 incorporates [1] 59:11 incorrect [1] 33:5 indeed [1] 63:5 individual [4] 5:11,14 7:13 51:11 individual's [1] 41:13 information [54] 3:14 4:6 5:1,18 6: 25 7:3,14,16 8:13 9:14 13:18,23 Heritage Reporting Corporation Sheet 3 e-mails - information 68 14:10,12 15:3 16:14,20,21 19:5 20:23 21:5,23 22:16,25 23:5,22 24:1,3,17,19 29:25 31:17,23,25 34:12 36:22 37:6 38:5,8 44:6 49: 21 51:17,24 52:1,3,4,6 59:14 62: 17,22,24 63:3,8,14 innovating [1] 40:9 innovation [1] 6:10 instances [1] 36:25 instant [1] 51:2 instead [2] 19:9 22:17 instructions [1] 45:14 instrument [10] 4:3,24 5:2 6:23 19:19 20:1 21:13 22:23 23:6 63: 21 instruments [2] 19:3 22:22 intend [2] 20:21 60:7 intended [2] 12:1 20:22 interest [2] 51:21,23 interests [8] 6:12 20:25 21:13,17 23:2 39:22 45:2 51:23 interfaces [1] 45:19 interference [1] 14:1 interim [1] 36:13 intermediate [1] 18:25 international [10] 7:11 8:18 12:7, 25 13:12 14:5,14 24:21 60:24 61: 5 Internationale [2] 7:8 29:12 Internet [5] 24:8 36:21 52:12 60: 13,22 interpret [2] 15:7 40:8 interpretation [1] 15:8 intervention [2] 44:14,16 introduced [1] 15:21 intrusion [2] 49:1 53:21 intrusiveness [1] 20:13 invading [1] 21:8 investigated [3] 26:15 36:17 62:9 investigation [2] 26:23 50:8 invoke [1] 13:22 invoked [1] 57:23 involving [1] 12:12 Ireland [21] 8:21 43:5,6,8,8,9,17, 24 44:6,7,9,10,21 46:3,5,10 47:7 51:16,18 55:25 56:8 Ireland's [2] 51:21,22 Irish [1] 51:16 isn't [2] 6:13 26:4 isolate [1] 53:13 isolation [1] 56:3 issuance [1] 29:19 issue [16] 19:1 23:6,16 24:12 25: 17 46:15,18,25 48:17 57:17 58:16 59:16,21 62:1,13 63:14 issued [6] 15:15 21:14 23:17 25:6 58:4 63:1 issues [2] 7:13 8:12 issuing [1] 24:8 it'll [1] 39:6 Italian [1] 28:4 Italy [2] 27:4,4 itself [3] 16:9 26:11 46:7 Official - Subject to Final Review � 42:5 43:12 51:7 54:20 55:3 60:5, J 11 James [1] 57:2 job [2] 40:7 61:3 joined [1] 14:7 JOSHUA [3] 1:21 2:6 32:13 judge [13] 21:15 25:15,25 27:22,22 57:3,16 58:9,14,15 59:15 61:25 62:8 judges [1] 23:13 judgment [1] 32:7 jurisdiction [7] 7:12 16:15 29:15 62:1,5,8 63:25 jurisdictional [1] 26:11 jurisdictions [1] 14:9 jurisprudence [1] 12:6 jury [6] 21:25 22:2,3,13,18 29:24 Justice [148] 1:19 3:3,9,17 4:2,12 5:24,25 6:18 7:18,22,23 8:19 9:4, 11,20,23 10:3,6,10 11:10,11 12:3, 18 13:3,12 14:18 15:1,10 16:5,8 17:2,9,17,19,22,25 18:18 21:18,20 23:8 24:6,22,25 25:10,12,24 26:3, 6,8,16,20,25 27:10,14,19 28:1,4,7, 10,15 29:1,5 30:12,17,23 31:7,10 32:10,15,17 33:3,13,24 35:5,11,12 36:10 37:10,22 38:2,13 39:10,15 40:5,17,18 41:1,14,18,24 42:8,21 43:22 44:1,9,12,17,20 45:5,9,17 46:14,19,23 47:8,16,17,18,20 48: 12,23 49:10,25 51:10,14,15 52:5, 17 53:8,22 55:17 56:2,5,21,24,25 57:6,12,15,25 58:3,8,13,19,23,25 59:3,6,9,13,19 60:17 61:14,21 62: 15 63:17 64:1 K KAGAN [12] 16:5,8 29:1,5 30:12, 17,23 31:7,10 53:8,22 58:23 Kagan's [1] 56:2 keep [1] 50:23 KENNEDY [15] 7:18,22,23 32:17 35:5,12 40:18 41:1,14,18,24 44: 12,17,20 62:15 key [1] 50:24 keyboard [1] 20:18 keyboards [1] 4:11 kill [1] 60:23 kind [5] 6:3 22:3 33:9 47:16,18 kinds [1] 23:16 lawful [1] 32:5 laws [4] 14:3 34:25 52:3,24 least [2] 61:4 63:9 leave [3] 6:15,22 12:14 leaving [1] 23:12 left [1] 22:17 Legal [3] 13:19 16:11 33:18 legislation [2] 24:14 36:12 legislative [2] 14:24 16:3 less [1] 41:10 letters [2] 45:24 52:21 level [2] 36:2 55:10 levels [1] 19:4 lifetime [1] 60:14 likely [2] 61:4,8 limit [1] 54:20 limitations [3] 12:12 15:3 19:12 limited [2] 17:14 32:19 line [1] 8:11 linguistic [1] 57:21 litigation [1] 30:9 little [4] 22:14 26:7 48:24 51:20 lives [1] 35:9 located [9] 10:25 13:24 25:18 29: 16,25 31:5 34:6,13 57:18 location [3] 16:15 35:7,7 locations [2] 11:23 15:4 lock [1] 50:24 lockbox [1] 32:24 locked [1] 44:3 longer [2] 48:24,25 look [14] 5:18 6:9 9:5,24 11:14 25: 2 27:17,23 29:6 35:24 38:25 53:9, 10,17 looked [1] 57:1 looking [1] 58:22 looks [1] 45:20 lose [1] 54:24 lot [5] 14:19 17:11 41:8 42:7 43:20 lower [3] 8:10 17:3 29:24 luck [1] 28:19 M mentally [1] 44:4 mentioned [1] 21:24 mesh [1] 41:21 messaging [1] 51:2 Mexico [2] 47:24 50:19 MICHAEL [5] 1:18 2:3,9 3:7 61:17 microsecond [1] 49:7 MICROSOFT [27] 1:6 3:5 7:2 13:1, 25 14:3 15:15 20:17 22:5,8 27:2 30:9,10 31:22 32:3 33:5,9 37:17 38:20,24 42:22,25 47:22 50:3 51: 9 62:16,22 Microsoft's [6] 4:10 28:17 31:22 50:17,18 51:6 might [4] 38:22 40:13 49:11 55:23 million [2] 48:9 49:16 mind [2] 38:14 47:19 minimum [1] 53:16 minute [1] 33:19 minutes [1] 61:16 mirage [1] 13:1 mirrors [1] 31:19 MLAT [4] 13:20 27:7 38:6 48:3 MLATs [5] 37:7 38:8,10,10 50:19 model [1] 29:11 modern [1] 39:19 modernized [1] 36:12 money [2] 11:3,5 months [1] 37:8 morning [2] 3:4 40:12 Morrison [2] 8:2 35:16 most [6] 12:10 14:7 26:10 30:13 36:1 55:10 movable [2] 52:21,22 move [4] 7:3 23:25 51:19 52:13 moves [2] 31:23 62:23 moving [2] 52:25,25 much [9] 6:10 13:5,7 24:3,20 31: 14 39:6 59:1 60:24 multiple [1] 37:7 must [3] 7:15 9:9,14 Mutual [1] 13:19 N narrow made [3] 6:6 7:2 14:23 nationality [1] 51:11 magistrate [10] 25:15,15,20 27:22 nations [2] 14:7,8 38:24 39:2 57:2 59:15 61:24 62:8 nations' [1] 16:19 magnets [1] 45:23 nationwide [3] 19:15 26:18 59:24 manifestations [2] 43:15 45:23 necessarily [1] 10:7 manner [1] 16:13 need [6] 13:18 18:13 36:22 53:8 L [2] 27:20 37:8 many 55:1 63:20 land [2] 32:22 44:25 [1] 15:22 [1] 60:9 marked needed lands [1] 35:3 [1] 42:10 [2] 5:17 22:11 material needs language [6] 5:20 9:24 25:3 30:13 materials [3] 3:22,24 11:19 never [4] 30:6 47:19 48:7,8 38:14 39:18 [2] 1:13 49:12 matter New [17] 1:21,21 6:16 12:16 17:5 [3] laptop 5:12,15,16 [1] 24:2 maximize 22:22 28:12 30:3 33:14 36:5 40:9 largely [1] 13:1 [8] 8:20 9:17 13:3 23:11 36: mean 55:14 57:3 58:10,17 59:17,22 last [2] 12:22,24 [1] 50:10 next 16 42:15 49:20 53:23 [1] latency 48:21 [1] 4:15 [1] 28:25 meaning Nobody Laughter [3] 45:8 54:14 59:2 [2] 22:15,21 [1] 29:10 meant noncompliance law [36] 7:4,4,7,11 8:16,18 10:14 [1] 61:2 [1] 8:5 Meanwhile none 13:5,10 14:2 15:19,24 16:2 18:11 mechanism [1] 43:10 normal [2] 15:25 50:8 24:20,20 27:5 28:4,12,23 29:17, [2] 16:18 18:23 mechanisms nothing [10] 6:8,13 7:3,4 11:8 30: 22 30:2,11 32:2,25 38:18,22,25 [1] 17:14 Heritage Reporting Corporation Sheet 4 information - nothing 69 Official - Subject to Final Review � 3 46:22 47:21 50:2 51:18 notice [1] 23:1 notion [1] 33:15 nowhere [1] 11:21 nuanced [1] 6:8 number [1] 37:2 O object objected [1] 33:8 objection [2] 20:1 34:11 objections [1] 20:9 obligation [9] 5:4 11:2 16:25 18:7 [1] 52:10 19:18 20:6,8 21:4 63:2 [8] 5:21 14:5 18:6,14 33:19 40:25 42:3 63:24 obtain [3] 5:12 18:24 41:2 obtained [2] 28:24 37:6 obtaining [1] 21:23 obviously [1] 44:20 occupy [1] 22:16 occur [3] 9:9 29:6,8 occurred [1] 6:11 occurs [2] 4:21 10:16 odd [1] 41:18 offense [1] 62:9 Office [1] 13:11 officer [2] 18:12 60:7 offices [1] 17:7 Okay [10] 18:2 26:8,25,25 27:19 45: 17 48:23 54:15 57:6,12 old [1] 11:17 Once [4] 5:5,5,16 62:23 one [25] 6:3 9:5 16:6 21:2,25 22:22 23:8 26:10,24 27:24 30:19 31:22 34:22 35:16 37:1,15 38:14 39:25 47:23 48:19 50:14 52:8 53:24 62: 15,20 one's [1] 35:19 ones [3] 14:16 43:14 45:23 only [17] 4:1 8:16 25:5 31:20,21,24 32:3,4 38:9 42:15 44:10 51:6 54: 18 58:4 60:15 61:1,7 open [1] 14:20 operated [1] 13:15 operates [2] 4:4 5:3 operating [1] 6:24 operation [1] 8:5 operator [1] 46:8 opinion [3] 9:5 15:15 23:19 opportunity [3] 20:4 22:6,9 opposite [1] 54:6 oral [5] 1:13 2:2,5 3:7 32:13 order [28] 3:14 4:8 5:7,8,19 7:13, 15 8:12,22 10:6 13:9 18:25 19:8,8, 23 21:5 22:12 24:1 28:20,23,24 29:9,19 30:10 49:5 59:16 63:1,23 ordered [2] 10:23 29:15 orders [7] 19:16 23:10,16 24:8 33: 6 62:13 63:14 ordinary [3] 18:9 20:16 22:7 other [27] 6:7 9:9 10:17 13:17 15: 14 16:19 17:4 23:9 27:6 30:19 34: 7,9 35:8,19 37:19,21 38:5,11,17 obligations 39:1 42:18,20 50:3,4 53:17 60:20 62:10 otherwise [1] 12:23 ourselves [1] 20:19 out [10] 14:4 17:11,25 26:24 28:19 35:17 37:18 45:4,16 49:23 outside [7] 23:10,19 24:7 42:25 43:4 46:24 51:8 over [13] 3:24 7:12,17 14:7 16:14 24:17 29:14 34:4 43:17 57:7 60: 10 62:8 63:24 overseas [12] 7:1,3 21:3,8 24:4 28: 19 31:11 34:6 36:24 38:4 48:15 62:24 own [7] 3:23 14:3 15:8 19:14 22: 23 34:25 40:9 owner [1] 35:9 P packaged [1] 43:16 PAGE [3] 2:2 62:3,6 pairs [1] 56:13 part [4] 12:22,24 16:11 51:16 particular [3] 11:22 14:9 34:11 particularity [1] 21:15 parties [3] 7:19 20:3 63:24 partners [1] 14:2 parts [1] 38:14 party [5] 8:11,13 29:10,14 30:9 pass [4] 12:15 34:25 39:5 55:2 passed [4] 6:20 39:11,12 54:19 past [3] 11:16 23:17 33:8 path [1] 61:4 Patriot [1] 62:11 pay [2] 10:23 11:5 pending [1] 24:12 people [5] 36:6 50:7 51:7 55:15 38:3 54:24 7 60:18 61:21 pointed [1] 28:25 providers [15] 13:19 14:10 16:20, 21 20:23 22:17 23:23,24 24:9,17 points [2] 61:20 63:4 31:17 36:7 52:12 60:20 63:8 police [2] 60:7,9 posed [1] 29:13 provides [5] 4:15 10:14 18:23 19: position [9] 10:12 24:15 28:17 31: 15 63:19 15,21 34:1 35:3 47:21 55:23 provision [5] 4:14,15 19:14 26:12 58:1 possession [1] 36:20 possible [4] 29:21 48:7 49:6 60: provisions [5] 53:3,6,18 55:9 63: 13 10 possibly [1] 49:18 potential [1] 12:19 power [3] 60:4,4,16 practical [3] 38:17 39:21 50:14 practice [1] 16:1 premise [1] 52:18 presence [4] 50:22 52:9,10,20 preservation [1] 63:14 press [1] 44:5 presumably [2] 4:16,18 presumption [1] 34:21 prevents [3] 21:22 47:22 50:3 privacy [7] 20:25 21:8,10,11,13,17 23:2 private [2] 32:22 41:13 probable [2] 36:18 50:9 probable-cause-based [2] 5:8 21:14 probably [2] 12:24 50:25 problem [17] 12:2,25 17:4,5 24:22 26:4,6 27:13 29:18,20 30:4,4 38: 21,25 39:9 49:15 57:21 problems [3] 12:7,19 42:14 Procedure [5] 18:10 25:8,13 48:3 58:6 procedures [4] 19:11 25:7 38:6 58:5 60:15 proceed [1] 62:21 perceived [1] 19:6 process [5] 14:24 16:3 19:1 32:6 percentage [1] 49:22 37:7 performed [1] 4:7 procures [1] 29:9 perhaps [2] 28:10 44:2 produce [4] 6:25 8:13 29:15 63:3 permissible [1] 8:8 production [2] 5:15 28:21 permits [2] 3:20 39:18 prohibits [2] 7:5 31:16 person [12] 5:3,4 6:24,25 7:15 23: promise [1] 50:22 2 25:18,20 27:6 32:4 44:22 51:15 property [6] 22:11 25:18 47:12 48: personal [1] 7:12 17 57:18 58:17 Petitioner [6] 1:4,20 2:4,10 3:8 61: proposed [1] 12:9 18 proposes [1] 28:12 phenomenon [2] 33:14 48:20 protect [1] 52:1 phones [1] 51:1 protected [5] 32:25 49:1 50:6,11 physical [7] 43:13,15 45:22 48:17, 56:18 20 52:10,19 protecting [3] 11:21 53:19 56:11 physically [2] 32:23 52:7 protection [4] 31:2 43:12 52:23 pick [1] 54:10 54:25 picture [1] 32:4 protections [4] 12:11 16:24 17:1 piece [1] 43:13 43:7 place [3] 48:19 55:25 56:8 protects [1] 51:24 places [4] 5:3,21 26:13 63:23 protests [2] 24:5 30:8 played [1] 51:16 protocols [1] 45:22 please [3] 3:10 16:8 32:16 provide [4] 8:3 16:17 20:23 48:5 plus [1] 22:22 provider [20] 3:16 4:5,6,22 5:22 point [14] 6:2 10:21 14:22 16:7 41: 13:23 16:14 18:7 19:20,24,24 21: 23 43:22,22 47:14 50:1 52:5 59:1, 4 23:7 25:5 35:10 36:21,23 37:20 public [1] 49:20 purposes [2] 7:24 31:19 pursuant [3] 13:21 25:6 58:4 pursuing [1] 37:6 push [2] 44:17 46:19 pushed [2] 46:7,8 put [6] 4:10 9:4 18:14 51:7 52:13 55:20 puts [4] 14:4 18:6,15 31:21 putting [5] 14:21 17:6 21:3 36:9 48:19 Q question [25] 6:1 11:12 12:22 14: 21 15:20 22:14,15 23:9 24:25 27: 1 28:18 29:13 34:1,18 40:3,5 41:5 47:6 53:1 56:3 57:14 58:23 59:14, 18 62:14 questions [4] 43:21 60:18 61:1,10 quick [1] 61:19 quintessentially [1] 43:18 quite [5] 30:5 41:21 48:25,25 52: 25 quo [2] 12:14 14:17 R radical [1] 28:16 raise [3] 11:3 20:8 34:13 raises [1] 42:13 random [1] 48:18 ratcheted [1] 19:6 rather [2] 16:2 40:8 reach [8] 31:4 32:21 41:8,10,12 51: 8 59:24 60:14 reaching [1] 35:2 read [6] 4:13,13 7:25 8:1 39:18 56: 3 reader [1] 43:13 reading [1] 12:19 reads [2] 43:14 45:22 reality [1] 11:13 realized [1] 33:19 realizing [1] 6:10 really [8] 3:19 4:1 14:16 38:21 43: 9 48:10 52:24 53:23 reason [2] 34:19 48:8 reasons [2] 15:14 38:23 REBUTTAL [3] 2:8 32:9 61:17 recipient [1] 20:8 recognize [1] 41:24 record [5] 27:6 37:12,13 38:9 57:1 records [5] 11:15 12:12 27:3 55: 20 56:7 Redmond [10] 34:3 45:13 46:8,16, Heritage Reporting Corporation Sheet 5 nothing - Redmond 70 Official - Subject to Final Review � 20 47:1,2 59:15,16,22 reference [1] 11:15 referred [1] 22:4 reflected [1] 8:16 regardless [6] 6:25 7:15 14:11 16: 15 19:18 23:23 regulate [2] 6:16 54:7 regulating [1] 53:25 rejected [1] 23:20 relate [2] 49:22 55:8 related [1] 3:15 relates [1] 53:17 Relations [1] 27:18 relevant [1] 62:2 rely [1] 42:16 relying [1] 49:16 remarkable [1] 30:6 remote [1] 43:9 request [1] 61:12 requests [2] 14:11 49:21 require [3] 14:10 25:4 28:21 required [2] 9:18 55:19 requires [6] 3:13,18 4:5 7:4 14:8 58:2 requiring [6] 4:20 5:14 6:24 7:14 46:12 63:7 respectfully [1] 61:12 respond [1] 38:12 Respondent [4] 1:7,22 2:7 32:14 responding [1] 63:1 response [1] 14:11 responses [1] 6:19 rest [3] 23:12 24:18 32:8 Restatement [1] 27:18 retrench [1] 16:10 reverse [1] 32:7 rights [1] 15:2 RJR [2] 8:3 9:5 ROBERTS [14] 3:3 32:10 33:24 47: 17,20 48:12,23 49:10,25 55:17 56: 5 61:14 63:17 64:1 robot [6] 44:24,25 45:10,11,13,14 robust [1] 52:25 Rogers [2] 7:8 29:12 ROSENKRANZ [60] 1:21 2:6 32: 12,13,15 33:3,11 34:16 35:11,14 36:10 37:10,25 38:7 39:9 40:4,17, 22 41:4,17,22 42:1,8,11 43:2 44:8, 15,19,23 45:12,18 46:17,21 47:3, 10 48:6,16 49:3,14 50:13 51:13, 22 52:16 53:12 54:15 56:1,9,24 57:5,11,13,22 58:1,7,12,18 59:6,9, 11,20 roughly [1] 29:11 rule [12] 7:10 8:9 18:9 19:11,11,12 20:15 22:8 26:19 57:7 58:11,22 Rules [4] 18:10 25:7,13 58:5 run [1] 13:16 running [2] 7:9 45:7 runs [1] 43:16 S safe [1] 55:16 safeguards [2] 16:22 46:1 same [11] 11:6 24:16 26:3,4 29:23 31:21 33:9 42:14,19 51:23 62:22 sanctions [1] 29:10 sat [1] 46:2 save [1] 32:8 saying [8] 8:8 13:9 19:9 34:4 43: 20 54:4,5 55:9 says [21] 4:19 8:13 10:14 11:8 16: 11 18:17 19:10 25:3,10,15 27:5 28:7 38:24 42:13 56:6 57:16 58:3, 14,15 63:2,11 SCA [1] 53:3 scenario [2] 33:1 41:6 scientists' [1] 45:15 scrambles [2] 51:2,3 search [28] 3:18,21,23 4:1,23,24 5: 9,13,17,23 18:12 22:4,6,10,12 25: 17 32:22 46:4,6,9,20 47:1,2,4,6 57:17 58:16 63:22 searching [1] 3:20 seat [1] 18:16 second [13] 9:21 15:16,16 21:7 23: 10,14,20,20 24:7,16 26:25 61:13 62:14 second's [1] 49:8 seconds [1] 56:23 Section [6] 3:11 14:13 53:11 63: 11,13,15 sector [1] 60:23 securing [2] 36:3 55:11 security [1] 55:6 see [5] 24:22,23 28:11 40:2 51:20 seek [2] 13:10,22 seeking [2] 13:2 29:25 seeks [1] 29:9 seems [4] 33:25 41:18 53:23 55: 22 seize [3] 25:17 45:1 57:18 seized [1] 50:16 seizure [1] 46:5 sell [1] 32:1 senators [1] 12:9 sends [2] 45:13 46:1 sense [2] 7:18 52:10 sensitivity [1] 19:5 sent [1] 44:25 sentence [1] 63:16 seriously [1] 48:14 serve [1] 5:13 server [1] 48:14 servers [1] 46:3 serves [1] 49:19 service [15] 3:16 19:15 23:22 24:9 35:10 36:21 37:19 38:3 48:5,13, 22 49:7,17 52:12 54:24 services [4] 50:17,18,20 51:6 several [1] 62:9 shards [2] 37:1,16 shared [1] 54:24 sheriff's [1] 60:8 short [1] 48:25 shot [2] 39:22 54:13 shots [1] 54:17 shouldn't [5] 12:14 15:5 33:23 39: 20 53:9 showing [1] 19:7 shows [2] 20:5 36:18 side [2] 6:7 50:4 sides [1] 25:1 signed [1] 57:2 simply [4] 22:1 40:6 51:9 56:19 since [3] 6:11 15:15 31:24 single [1] 5:19 sit [2] 4:9 20:18 sitting [3] 20:18 36:3 55:12 situation [6] 12:2 34:15,17 36:15 37:5 38:20 Sixth [1] 41:11 slightly [1] 26:5 slows [1] 48:21 sober-minded [1] 33:22 Societe [2] 7:8 29:12 soil [2] 35:1,4 sold [1] 50:21 Solicitor [1] 1:18 somebody [1] 50:4 someplace [2] 51:19 52:11 someway [1] 44:17 somewhere [2] 50:5 52:8 sorry [4] 41:17 44:1 45:5 48:13 sort [1] 39:13 SOTOMAYOR [15] 3:17 4:2,12 5: 24 11:10 12:18 13:3 14:18 15:10 40:17 44:1,10 45:5,9,17 sought [1] 23:10 sounds [1] 39:4 source [1] 3:23 Southern [2] 57:3 58:10 sovereign [2] 34:24 51:24 sovereignty [2] 34:24 60:25 special [1] 27:7 specific [1] 54:20 specifically [2] 36:3 50:21 specify [1] 19:17 spells [1] 45:15 spins [1] 45:20 split [2] 15:11,11 squarely [1] 29:13 stage [1] 29:8 standard [2] 21:12 40:10 standards [2] 39:6,24 start [5] 12:21 15:12 32:17 33:17 43:2 started [1] 32:18 starting [1] 6:2 State [2] 13:11 15:1 STATES [31] 1:1,3,14 3:5,14,15,16 8:16,23 9:16 10:16 11:20 13:21 20:4 23:21 30:1 31:6 32:5,20 36: 18 43:1,4 47:22 48:10 49:17,22 52:2 54:1,9 59:25 63:2 statistics [1] 49:20 status [2] 12:14 14:17 statute [52] 4:19 5:20 6:11,20 7:25 8:3 9:1,6,7,8,25 10:2,16 11:4,8,13, 14 13:21 15:7 17:13,20 18:5,11, 17,22 19:13,14 23:1 25:3,3 29:17 30:13 31:1,4,14 35:24 39:11,12, 13,18 40:6,8 41:5,11,25 42:13 54: 11,12 55:24 62:19 63:5,13 statutory [1] 15:8 step [2] 20:18 35:18 still [1] 53:19 storage [18] 6:4 31:24 33:15 35:22, 25 36:4,7 41:10 53:5,20 54:22 55: 7,12,16,18 56:12,17 63:6 store [5] 7:16 23:23 36:23 38:4 51: 17 Stored [31] 3:11 7:1 11:15,15,19, 22 12:13 14:12 15:4 21:22 22:1 26:10 28:18 30:7 32:19,23 35:1 36:1 37:1 43:3,4,11,24 46:24 50:5 51:24 52:1 53:4 54:2,8 55:11 storing [1] 47:22 strained [1] 52:15 strong [1] 55:23 structure [3] 5:20 8:5 18:22 study [1] 24:24 stymied [1] 24:15 subject [1] 43:7 submitted [2] 64:2,4 subpoena [18] 4:8 5:2,14 17:10 18:24 19:19 21:25 22:3,13,23 34: 8 41:3,8,9,16,20 42:10 63:23 subpoena-type [1] 4:24 subpoenas [6] 17:7,17,20 20:10 22:18 29:25 subscriber [1] 23:5 subsequently [1] 6:21 substantive [2] 61:20 63:4 substitute [1] 3:19 successfully [1] 30:5 sue [1] 47:11 suggest [1] 27:20 suggested [2] 38:19 56:15 suit [1] 47:18 supplementary [1] 16:23 supported [1] 14:25 Suppose [1] 10:21 supposed [2] 18:20 53:16 SUPREME [2] 1:1,14 suspect [2] 34:6 59:3 Swiss [1] 29:17 Switzerland [1] 29:16 system [2] 21:17 24:2 T tail [1] 48:11 tail-wagging-the-dog [1] 49:15 talked [1] 17:10 tech [1] 60:23 technical [4] 56:22 61:20,21 62: 14 technological [1] 44:2 technology [1] 11:16 tells [3] 39:25 45:10,13 tend [1] 14:20 tensions [1] 61:5 territorial [4] 19:12,14 42:17 58: 20 territoriality [1] 52:14 territorially [1] 17:15 Heritage Reporting Corporation Sheet 6 Redmond - territorially 71 Official - Subject to Final Review � test [3] 8:25 9:12 10:14 text [7] 8:5 9:25 10:1 11:7 17:13 18:3,4 theoretically [1] 48:6 theory [1] 31:23 there's [18] 6:8 9:17 12:8 14:19,20 15:10 21:21 23:11 28:11 30:3 36: 16 38:4,25 44:16 46:22 48:16,20 51:18 therefore [3] 19:6 47:4 50:23 thinking [1] 11:18 thinks [1] 38:21 third-party [2] 36:7 55:1 though [3] 22:20 42:7 53:23 thread [3] 53:2,4,9 three [3] 18:23 19:3 63:9 ties [2] 53:2,6 time-consuming [2] 38:6 48:4 tinker [1] 61:6 today [5] 12:2 16:12 24:15,21 60: 19 together [2] 53:2,7 tomorrow [1] 51:19 took [1] 29:21 tools [1] 61:7 totally [1] 12:1 trammeled [1] 26:18 transmitted [1] 9:15 Treaty [3] 13:20 14:6,21 trenching [1] 12:4 tried [1] 59:7 troubles [1] 36:11 true [1] 21:3 trust [1] 50:23 truth [1] 42:20 try [2] 9:25 61:6 trying [2] 44:3 53:11 Tuesday [1] 1:11 turn [2] 3:23 34:4 turns [1] 37:18 two [12] 4:3 21:1,9,24 22:3 26:9 38: 13 53:24 54:11 61:16,20,20 typically [2] 13:15 17:14 8:16,23 9:15 10:16 11:20 13:21 20:4 23:21 31:6 32:5,20 36:17 43: 1,4 47:22 48:10 49:17,21 52:2 54: 1,9 59:25 63:2 unless [2] 8:3 48:2 Unlike [1] 17:17 unqualified [1] 16:13 until [2] 33:5,17 unusual [1] 15:12 up [13] 15:22 18:3 19:6 20:5 26:7 30:7 36:25 37:15 42:6 43:16 55:8 60:2 63:9 urgent [2] 36:22 38:10 urgently [1] 38:12 urging [1] 14:16 useful [2] 16:17 22:24 uses [2] 17:13 18:19 using [4] 9:12 19:10 25:6 58:4 V variety [4] 17:4 26:13 38:23 63:7 various [4] 6:12 20:9 40:13 55:8 verifying [1] 45:21 versus [4] 3:5 7:8 20:4 29:12 view [4] 9:7 21:10 29:7 30:20 viewed [2] 8:15,17 violate [2] 28:23 30:11 violation [5] 40:20,23,24 42:2,5 vision [1] 30:24 vital [1] 24:19 voluntarily [6] 40:19,23 41:15,19 42:2 62:16 whom [3] 16:14 29:14 63:24 wild [1] 45:7 will [10] 10:21 16:18 24:14 27:24 34:14 37:8 39:5 52:14 54:15 60: 23 willing [1] 31:18 wires [1] 43:17 wiser [1] 6:14 within [8] 10:15 25:18 51:25 52:1 57:7,15,18 59:24 without [3] 27:7 39:7 61:7 word [6] 17:10,13,20 18:19 42:16, 18 words [1] 50:3 work [3] 20:19 38:10,15 working [1] 43:10 world [9] 6:17 32:1 34:23 36:6 54: 3,7 55:14 60:10,15 worry [1] 47:25 wrapping [1] 60:2 wrestling [1] 60:19 write [1] 6:11 written [3] 13:4 15:15 23:19 wrote [3] 23:1 40:7,8 Y years [1] 37:9 York [7] 1:21,21 57:3 58:10,17 59: 17,22 Z zeros [2] 43:14 45:24 voluntary [1] 56:6 voted [1] 15:23 W wait [3] 15:5 33:19 48:24 waiting [1] 16:2 wanted [6] 5:12 20:16 36:7 50:7 54:19 55:15 wants [5] 6:16 32:1,20 40:15 48:1 warrant [48] 3:21 4:15,20 5:7,17 11:7 17:13 18:8,11,19 19:2,10,10, 19 20:3,5,13,13,15,16,24 21:2,14 22:8 25:6,17 41:7 42:17,24 46:7, U 15,18,21 47:1 50:9 55:2,4 57:1,17 U.S [10] 8:12 13:18 29:14 32:2 33: 58:2,4,9,9,16 59:21 62:2 63:19,21 21 35:3 44:5 50:22,24 51:8 [5] 20:11 26:13 58:19 59: warrants [1] unable 59:16 23,25 unauthorized [1] 33:21 Washington [9] 1:10,19 34:3 44: unbroken [1] 8:11 18 55:25 56:8 59:15,17,22 [1] uncertain 16:3 way [21] 6:6 7:25 9:22 13:14,17 22: unconstitutional [1] 47:13 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: 3 52:24 60:2 5 40:18 41:11,11 43:12 47:21 50: [1] 21:24 ways 23 52:23 54:25 62:21 weighed [1] 40:14 underscores [1] 48:18 weighing [1] 39:14 understand [5] 10:3,4 12:8 40:4 Whereupon [1] 64:3 55:15 wherever [2] 13:23 21:6 understanding [1] 17:15 whether [9] 7:1 8:25 22:15 29:14 understands [1] 33:13 50:18 54:11,12 60:23 62:15 [1] unilateral 7:2 who's [1] 36:16 unilaterally [2] 32:21 62:24 [2] UNITED [30] 1:1,3,14 3:5,14,15,16 whole 33:15 52:14 Heritage Reporting Corporation Sheet 7 test - zeros