No. 17-2

In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
MICROSOFT CORPORATION
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

MOTION TO VACATE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE WITH DIRECTIONS TO
DISMISS AS MOOT

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 TABLE OF CONTENTS

Page
Statement ...................................................................................... 2
A. The Section 2703 warrant issued to Microsoft ............... 2
B. The passage of the CLOUD Act ...................................... 3
Argument....................................................................................... 5
A. This case is now moot........................................................ 5
B. The judgment below should be vacated under
Munsingwear .................................................................... 9
1. The government did not attempt to evade
judicial review ........................................................... 10
2. Vacatur of the court of appeals’ decision
remains important ................................................... 13
TABLE OF AUTHORITIES

Cases:
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .................... 9
Alvarez v. Smith, 558 U.S. 87 (2009) ....................... 11, 12, 13
American Bar Ass’n v. FTC, 636 F.3d 641
(D.C. Cir. 2011) ............................................................... 7, 11
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)................................................................ 10
Burke v. Barnes, 479 U.S. 361 (1987) .............................. 9, 11
Camreta v. Greene, 563 U.S. 692 (2011) .................... 9, 13, 14
Diffenderfer v. Central Baptist Church of Miami,
Fla., Inc., 404 U.S. 412 (1972) ........................................ 6, 11
Grand Jury Subpoena Duces Tecum, 91-02922,
In re, 955 F.2d 670 (11th Cir. 1992) .................................. 12
Great W. Sugar Co. v. Nelson, 442 U.S. 92 (1979) ......... 9, 10
Hall v. Beals, 396 U.S. 45 (1969) ............................................ 7
Karcher v. May, 484 U.S. 72 (1987) ..................................... 10
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ..... 5, 6, 8

(I)

 II
Cases—Continued:

Page

Marshall v. Whittaker Corp., Berwick Forge &
Fabricating Co., 610 F.2d 1141 (3d Cir. 1979) ............. 8, 12
Morrison v. National Austl. Bank Ltd., 561 U.S. 247
(2010) .................................................................................... 14
RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.
2090 (2016) ........................................................................... 14
Society for Propagation of the Gospel v. Wheeler,
22 F. Cas. 756 (C.C.N.H. 1814) (No. 13,156) ...................... 8
Trump v. Hawaii, 138 S. Ct. 377 (2017) ................................ 9
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) ................................................... 10, 11, 13
United States v. Chesapeake & Potomac Tel. Co.,
516 U.S. 415 (1996) .................................................... 15
United States v. Munsingwear, Inc., 340 U.S. 36
(1950) .................................................................2, 9, 10, 13, 15
United States v. Weatherhead, 528 U.S. 1042 (1999) ......... 12
United States v. Zakharia, 418 Fed. Appx. 414
(6th Cir.), cert. denied, 565 U.S. 945 (2011) ..................... 12
United States Dep’t of Justice v. Provenzano,
469 U.S. 14 (1984) ........................................................... 6, 11
United States Dep’t of the Treasury v. Galioto,
477 U.S. 556 (1986)................................................................ 6
Vartelas v. Holder, 566 U.S. 257 (2012)................................. 8
Constitution, statutes, and rule:
U.S. Const. Amend. IV.......................................................... 15
Clarifying Lawful Overseas Use of Data Act,
H.R. 1625, Div. V, 115th Cong., 2d Sess. (2018) ............ 1, 3
§ 102(1)-(2).......................................................................... 4
§ 103(a) ................................................................... 2, 4, 5, 9
§ 103(b) ....................................................................... 4, 5
§ 103(c) ............................................................................ 5

 III
Statutes and rule—Continued:

Page

Consolidated Appropriations Act, 2018, H.R. 1625,
115th Cong., 2d Sess. (2018) ............................................ 2, 3
Freedom of Information Act, 5 U.S.C. 552 ........................... 6
Stored Communications Act, 18 U.S.C. 2701
et seq.:
18 U.S.C. 2701 .................................................................. 14
18 U.S.C. 2702 .................................................................. 14
18 U.S.C. 2703 ......................................................... passim
18 U.S.C. 2703(h) ........................................................... 5
18 U.S.C. 2703(h)(2) ....................................................... 4
18 U.S.C. 2713 .................................................................... 3
Sup. Ct. R. 21.2(b).................................................................... 1

 In the Supreme Court of the United States
No. 17-2
UNITED STATES OF AMERICA, PETITIONER
v.
MICROSOFT CORPORATION
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

MOTION TO VACATE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE WITH DIRECTIONS TO
DISMISS AS MOOT

Pursuant to Rule 21.2(b) of the Rules of this Court,
the Solicitor General, on behalf of the United States, respectfully moves that the Court vacate the judgment of
the United States Court of Appeals for the Second Circuit and remand the case to that court with instructions
to vacate the district court’s contempt finding and to direct the district court to dismiss the case as moot.
This case involves a challenge to a probable-causebased warrant issued under 18 U.S.C. 2703. The question presented is whether a United States provider of
email services must comply with such a warrant by
making disclosure in the United States of electronic
communications within that provider’s control, even if
the provider has decided to store that material abroad.
On March 23, 2018, Congress passed and the President
signed the Clarifying Lawful Overseas Use of Data Act

(1)

 2
(CLOUD Act) as part of the Consolidated Appropriations Act, 2018, H.R. 1625, Div. V, 115th Cong., 2d Sess.
(2018). The CLOUD Act resolves the question presented by specifying that a service provider responding
to a Section 2703 order must produce information within
its “possession, custody, or control, regardless of
whether such * * * information is located within or outside of the United States.” CLOUD Act § 103(a). The
United States has obtained a new warrant under the
CLOUD Act, and Microsoft’s sole objection—that the
prior warrant was impermissibly extraterritorial—no
longer applies.
The United States respectfully submits that this case
is now moot. As a result, pursuant to this Court’s “established practice,” the Court should “vacate the judgment below and remand with a direction to dismiss.”
United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950). Although the CLOUD Act precludes similar legal disputes in the future, vacatur remains appropriate
because the court of appeals’ erroneous opinion could
otherwise “spawn[] * * * legal consequences” in future
cases, id. at 41, on critical issues involving extraterritoriality and privacy.
STATEMENT
A. The Section 2703 Warrant Issued To Microsoft

As explained in the government’s initial brief (at 47), this case involves a warrant issued to Microsoft under the Stored Communications Act, 18 U.S.C. 2703, requiring disclosure of email information for a particular
email account. J.A. 22-26. The government’s application for the warrant established probable cause to believe that the account was being used to further illegal
drug activity in, or manufacturing for importation into,
the United States. Pet. App. 2a; see J.A. 25. Microsoft

 3
moved to quash the warrant with respect to the contents
of the emails in the account, which it had “migrate[d]”
to a datacenter in Ireland. Pet. App. 7a, 10a. Microsoft
contended that it would be an impermissible extraterritorial application of Section 2703 to require a service
provider to disclose electronic information stored outside the United States. See id. at 20a-21a, 73a-74a.
The magistrate judge denied the motion to quash,
concluding that the Section 2703 warrant at issue did
not operate extraterritorially. Pet. App. 97a. The district court affirmed. Id. at 102a. After the parties stipulated that Microsoft had not complied with the warrant
and would not do so while it sought further review, the
district court held Microsoft in civil contempt, without
imposing any sanctions, in order to ensure jurisdiction
for an appeal. Id. at 12a n.9, 103a. A panel of the court
of appeals then reversed the denial of the motion to
quash and vacated the civil contempt finding. Id. at 1a48a.
This Court granted the government’s petition for a
writ of certiorari on October 16, 2017. The parties filed
briefs, and the Court heard oral argument on February
27, 2018.
B. The Passage Of The CLOUD Act

On March 23, 2018, Congress enacted the Consolidated Appropriations Act, 2018, H.R. 1625, 115th Cong.,
2d Sess. (2018). The President signed the Act into law
on the same day.
Division V of the Consolidated Appropriations Act is
called the Clarifying Lawful Overseas Use of Data Act,
or the CLOUD Act. The CLOUD Act amends the
Stored Communications Act by adding 18 U.S.C. 2713,
which states:

 4
A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose
the contents of a wire or electronic communication
and any record or other information pertaining to a
customer or subscriber within such provider’s possession, custody, or control, regardless of whether
such communication, record, or other information is
located within or outside of the United States.
CLOUD Act § 103(a). The CLOUD Act includes legislative findings that “[t]imely access to electronic data
held by communications-service providers is an essential component of government efforts to protect public
safety and combat serious crime” and that such efforts
have been “impeded by the inability to access data
stored outside the United States that is in the custody,
control, or possession of communications-service providers that are subject to jurisdiction of the United
States.” Id. § 102(1)-(2).
The CLOUD Act also establishes a statutory comity
analysis, under which a service provider subject to a
Section 2703 disclosure order may move to modify or
quash the order if the provider reasonably believes both
that the customer whose data is requested is neither a
U.S. person nor a U.S. resident and that “the required
disclosure would create a material risk that the provider
would violate the laws of a qualifying foreign government.”
CLOUD Act § 103(b) (adding 18 U.S.C.
2703(h)(2)). “[Q]ualifying foreign government[s]” will
include governments that provide appropriate protections for data and that enter agreements under the
CLOUD Act with the United States to facilitate data
sharing. Ibid. In those circumstances, the CLOUD Act

 5
authorizes courts to perform a comity analysis to determine whether to enforce the full scope of the Section
2703 order. Ibid. When the statutory comity analysis
under Section 2703(h) does not apply, the CLOUD Act
does not affect the availability or application of a
common-law comity analysis. Id. § 103(c); see U.S. Br.
50-52.
The CLOUD Act does not specify an effective date.
ARGUMENT
A. This Case Is Now Moot

Under the CLOUD Act, Microsoft must produce information of the sort requested here. The government
sought and received a probable-cause-based Section
2703 warrant requiring Microsoft to disclose information pertaining to a user’s email account that Microsoft stores in a foreign datacenter. Microsoft is a
U.S. provider, subject to the jurisdiction of U.S. courts.
And Microsoft has never contested that the requested
information is within its “possession, custody, or control.” CLOUD Act § 103(a).
1. The CLOUD Act directly governs the warrant at
issue in this case because it changes the law in a way
that does not have an impermissibly retroactive effect.
The Court has long applied a presumption against the
retroactive application of new legislation. See Landgraf
v. USI Film Prods., 511 U.S. 244, 265 (1994). But “[a]
statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Id. at 269. “Rather,
the court must ask whether the new provision attaches
new legal consequences to events completed before its
enactment.” Id. at 269-270. “Changes in procedural

 6
rules,” for example, “may often be applied in suits arising before their enactment without raising concerns
about retroactivity.” Id. at 275.
The application of the CLOUD Act to the original
Section 2703 warrant at issue in this case would not be
retroactive. Microsoft’s production of the requested
information has not been “completed,” Landgraf,
511 U.S. at 270, as it remains possible for Microsoft to
comply fully with the government’s demand for disclosure. The Section 2703 warrant remained valid after
the CLOUD Act, and no real consequences have attached to Microsoft’s failure to comply with the warrant
up to this point. (The contempt finding was entered
only to facilitate appellate review, and no sanctions have
or will attach if Microsoft now complies. See pp. 7-8,
infra.)
In that sense, this case mirrors United States Department of Justice v. Provenzano, 469 U.S. 14 (1984)
(per curiam). In Provenzano, the parties disputed
whether certain records should have been disclosed under the Freedom of Information Act, 5 U.S.C. 552, or
had been properly withheld under a withholding statute. 469 U.S. at 14. While the case was pending in this
Court, Congress amended the relevant statute to make
clear that it did not permit withholding. Id. at 14-15.
The Court then explained that “[t]he new legislation
* * * plainly renders moot” the question presented, as
the “requests for records now are to be judged under
the law presently in effect.” Id. at 15. Other cases have
adopted similar approaches to new legislation. See, e.g.,
United States Dep’t of the Treasury v. Galioto, 477 U.S.
556, 559 (1986) (finding case moot where the new legislation “significantly alter[ed] the posture of th[e] case”);
Diffenderfer v. Central Baptist Church of Miami, Fla.,

 7
Inc., 404 U.S. 412, 414 (1972) (per curiam) (explaining
that the Court evaluates state “law as it now stands, not
as it stood when the judgment below was entered” and
that “[t]he case has therefore lost its character as a present, live controversy”) (citation omitted); Hall v. Beals,
396 U.S. 45, 48 (1969) (per curiam) (similar); see also
American Bar Ass’n v. FTC, 636 F.3d 641, 643 (D.C.
Cir. 2011) (“It is well established that a case must be
dismissed as moot if new legislation addressing the matter in dispute is enacted while the case is still pending.”).
2. Nevertheless, Microsoft has refused to acknowledge either that the CLOUD Act applies to the Section
2703 warrant at issue in this case or that Microsoft plans
to disclose the required information under the original
warrant.
Microsoft has suggested that the CLOUD Act does
not apply to the original warrant and render this case
moot because the case involves Microsoft’s appeal of a
contempt order issued by the district court. See J.A.
27-28; Pet. App. 103a. If Microsoft were to face sanctions based on a period of non-compliance before the
CLOUD Act was enacted, application of the CLOUD
Act to that dispute would raise serious retroactivity
concerns under Landgraf. The contempt citation in this
case, however, creates no meaningful risk based on Microsoft’s pre-CLOUD Act conduct. The district court
“impose[d] no other sanctions” when it held Microsoft
in contempt—which it did “to permit prompt appellate
review.” Pet. App. 103a. And the court noted that the
government could seek sanctions only if there were
“materially changed circumstances in the underlying
criminal investigation” or if Microsoft were to maintain

 8
its non-compliance after the government prevailed on
appeal. Ibid.
The government has not sought sanctions to this
point, and Microsoft’s disclosure of the requested information under the CLOUD Act would negate both of the
avenues identified by the district court for doing so.
Meanwhile, the civil contempt finding itself poses no
real consequences. See Marshall v. Whittaker Corp.,
Berwick Forge & Fabricating Co., 610 F.2d 1141, 1145
(3d Cir. 1979) (“Unlike a criminal conviction or involuntary commitment to a mental hospital, an adjudication
of civil contempt carries with it no possibility of collateral deprivations of civil rights or other specifically legal consequences.”) (footnote omitted). As a result, the
CLOUD Act does not attach “ ‘a new disability’ to conduct over and done” before its enactment. Vartelas v.
Holder, 566 U.S. 257, 267 (2012) (quoting Society for
Propagation of the Gospel v. Wheeler, 22 F. Cas. 756,
767 (C.C. N.H. 1814) (No. 13,156) (Story, J.)); see Landgraf, 511 U.S. at 268-269.
3. Because Microsoft has thus far refused to comply
with the original warrant, the government has determined that the most efficient means of acquiring the information sought is through a new warrant under the
CLOUD Act. The specific legal question that prompted
the government to seek certiorari has now been resolved by the CLOUD Act. The government is now unquestionably entitled to require Microsoft to disclose
foreign-stored data under the Stored Communications
Act (absent a comity showing that Microsoft has never
sought to make). The resolution of the question presented is thus no longer necessary to address a critical
threat to public safety and national security, as the government urged in its petition for certiorari (at 26-29).

 9
Nor is it essential for this Court (or the lower courts) to
resolve any dispute about the retroactivity of the
CLOUD Act.
Accordingly, on March 30, 2018, the government applied for a new warrant covering the relevant information requested in the Section 2703 warrant at issue
in this case. A magistrate judge issued the warrant that
same day. Under the new warrant, which will replace
the original warrant and which the CLOUD Act indisputably governs, Microsoft must produce any covered
information within its “possession, custody, or control.”
CLOUD Act § 103(a). Microsoft no longer has any basis
for suggesting that such a warrant is impermissibly extraterritorial because it reaches foreign-stored data,
which was the sole contention in its motion to quash.
See C.A. App. 20-34. There is thus no longer any live
dispute between the parties, and the case is now moot.
See Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)
(“A case becomes moot * * * when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”) (citation and internal quotation marks omitted).
B. The Judgment Below Should Be Vacated Under
Munsingwear

Where, as here, an appeal becomes moot before the
appealing party can obtain review, the Court’s “established practice” is to “vacate the judgment below and
remand with a direction to dismiss.” United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950). That rule is
“commonly utilized,” id. at 41, and is the “normal” procedure for mootness, Camreta v. Greene, 563 U.S. 692,
713 (2011). See, e.g., Trump v. Hawaii, 138 S. Ct. 377
(2017); Burke v. Barnes, 479 U.S. 361, 365 (1987); Great

 10
W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam). The rule serves important purposes: Vacatur
“clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of
which was prevented through happenstance.” Munsingwear, 340 U.S. at 40.
1. The government did not attempt to evade judicial
review

Vacatur generally protects a “party who seeks review of the merits of an adverse ruling, but is frustrated
by the vagaries of circumstance” and “ought not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25
(1994) (Bancorp). Because vacatur is an “equitable
remedy,” the Court has carved out an exception where
“the party seeking relief from the judgment below
caused the mootness by voluntary action.” Id. at 24-25.
Thus, where a party agrees to a settlement, he often
“voluntarily forfeit[s] his legal remedy.” Id. at 25. But
even that is not a rigid rule: The ultimate “determination is an equitable one, and exceptional circumstances
may conceivably counsel in favor of” vacatur even when
a party acts to produce the mootness. Id. at 29; see, e.g.,
Arizonans for Official English v. Arizona, 520 U.S. 43,
75 (1997).
This Court has accordingly refused to vacate lowercourt judgments where a party voluntarily initiates action to eliminate the controversy—for example, by
agreeing to a settlement, see Bancorp, 513 U.S. at 25,
or by failing to pursue an appeal, see Karcher v. May,
484 U.S. 72, 83 (1987). By contrast, even where a party
exercises some agency in resolving a dispute, the Court
has applied its default rule of vacatur so long as neither

 11
a “desire to avoid review” nor “the presence of th[e] federal case” played any “significant role” in motivating
the circumstances that caused mootness. Alvarez v.
Smith, 558 U.S. 87, 96-97 (2009). For example, although
the parties in Alvarez resolved underlying property disputes before this Court could decide a due process challenge to state forfeiture laws, the Court concluded that
the resolution of the case “f [e]ll on the ‘happenstance’
side of the line.” Id. at 95. As a result, the Court followed its “ordinary practice” of vacating the judgment
below and remanding with instructions to dismiss the
case. Id. at 97.
In this case, “the vagaries of circumstance” have deprived the case of an ongoing adversarial conflict.
Bancorp, 513 U.S. at 25. After oral argument, Congress
enacted the CLOUD Act, which resolved any question
about a provider’s obligation to disclose foreign-stored
data under Section 2703. As this Court has previously
recognized, vacatur is the proper course when a case becomes moot because of the expiration of a challenged
law. See Burke, 479 U.S. at 365. The same is true when
a case becomes moot because of the repeal of a challenged law. See Diffenderfer, 404 U.S. at 414-415 (vacating and remanding with leave to amend). And vacatur is equally warranted when a case becomes moot because of the amendment of a challenged law. See
Provenzano, 469 U.S. at 15 (vacating and remanding for
consideration of remaining disputes); see also American Bar Ass’n, 636 F.3d at 649 (explaining that the Bancorp exception does not apply when “a case is rendered
moot by intervening legislation” and when the government seeks vacatur).
The government believes that the CLOUD Act settled the dispute in this case. But even if the CLOUD

 12
Act alone did not render this case moot, the legislation
resolved the key legal dispute in this case and set in motion the events leading to mootness. Although the government obtained a new warrant to avoid a needless and
potentially protracted dispute about the retroactive effect of the CLOUD Act, any government contribution to
this case’s mootness is, as in Alvarez, not motivated by
a “desire to avoid review” of the question presented.
558 U.S. at 97. It is motivated by the investigatory need
for information that the government has sought since
late 2013, see J.A. 22, and to which it is now clearly entitled.
The government does not believe that seeking a new
warrant was necessary in order to compel Microsoft to
act: In light of the CLOUD Act, Microsoft should have
simply complied with the existing warrant, to which it
can have no valid legal objection, purging any contempt.
See, e.g., United States v. Zakharia, 418 Fed. Appx.
414, 415 (6th Cir.) (concluding that “no live controversy
remains” once the party in contempt “purged the contempt by complying with the court’s order, with no resultant sanctions”), cert. denied, 565 U.S. 945 (2011); In
re Grand Jury Subpoena Duces Tecum, 91-02922, 955
F.2d 670, 671-672 (11th Cir. 1992) (stating that the appellant “mooted this issue by surrendering the materials and purging his contempt,” and collecting cases);
Marshall, 610 F.2d at 1144 (adhering to “the rule enunciated by various courts of appeals that an appeal is
moot once civil contempt has been purged”). Microsoft,
however, chose not to do so. The government has thus
shouldered the responsibility of taking a formal step to
end the particular dispute that prompted this case.
That formal last step does not preclude Munsingwear
vacatur. See United States v. Weatherhead, 528 U.S.

 13
1042 (1999) (vacating court of appeals’ judgment as
moot); Gov’t Mot. to Vacate, Weatherhead, supra (No.
98-1904) (explaining that the government produced the
requested documents, formally causing the mootness, in
light of changed circumstances beyond its control).
In these unusual circumstances, the case’s inevitable
mootness “fall[s] on the ‘happenstance’ side of the line”
and does not reflect a deliberate government decision
“to avoid review” in this Court. Alvarez, 558 U.S. at 95,
97; see Bancorp, 513 U.S. at 26 (noting the “emphasis
on fault in [the Court’s] decisions”). To the contrary,
the government actively sought this Court’s review, and
continues to believe that the Second Circuit’s errors
should be cleared away by this Court. Its actions here
reflect only the lack of prospective importance of the
construction of Section 2703 in light of Congress’s action clearly addressing that issue. Even if the Court attributes mootness in part to the government’s decision
to reissue the Section 2703 warrant, this case thus presents the “exceptional circumstances” discussed in
Bancorp, 513 U.S. at 29. The Court should therefore
adhere to its “established practice” of “vacat[ing] the
judgment below and remand[ing] with a direction to dismiss.” Munsingwear, 340 U.S. at 39.
2. Vacatur of the court of appeals’ decision remains
important

Although the CLOUD Act revises the Stored Communications Act and supersedes the court of appeals’
specific holding, several aspects of the court of appeals’
opinion could still “spawn[] * * * legal consequences”
if the decision were to remain on the books. Munsingwear, 340 U.S. at 41. Vacatur would eliminate that
risk. In Camreta, for example, the Court reviewed a

 14
lower-court opinion that had found a constitutional violation but also had held that the defendants were
shielded by qualified immunity. The case thereafter became moot, and this Court held that vacatur was appropriate because “a constitutional ruling in a qualified
immunity case is a legally consequential decision.”
563 U.S. at 713. Even though the defendants had ultimately prevailed on qualified-immunity grounds, the
Court explained that the “adverse constitutional ruling”
would continue to “injur[e]” them, because an official
who “regularly engages in that conduct as part of his
job * * * must either change the way he performs his
duties or risk a meritorious damages action.” Id. at 703.
Here, several parts of the court of appeals’ decision
have the potential to remain “legally consequential.”
Camreta, 563 U.S. at 713. First, in its extraterritoriality analysis, the court assessed the entire chapter in
which Section 2703 appears rather than engaging in a
provision-specific analysis. See Pet. App. 37a-39a, 41a42a. As the government explained, that approach conflicts with this Court’s decisions in RJR Nabisco, Inc. v.
European Community, 136 S. Ct. 2090 (2016), and Morrison v. National Australia Bank Ltd., 561 U.S. 247
(2010). U.S. Br. 18-21. That erroneous analysis could
infect the court of appeals’ interpretation of the “focus”
of other provisions of the Stored Communications Act
(e.g., 18 U.S.C. 2701, 2702) that were not at issue in this
case and not addressed by the CLOUD Act. Second, the
court made sweeping statements about recipients of
disclosure orders who store the communications of third
parties, suggesting that such entities “seize[]” information within their control “as an agent of the government.” Pet. App. 43a-44a. Yet this Court has never

 15
treated parties who comply with orders to disclose information already within their control as government
agents who seize the property of others. U.S. Br. 29-31.
Third, and relatedly, the court of appeals further endorsed a “caretaker” exception to ordinary subpoena
rules, Pet. App. 34a—an exception for which it provided
no support in history or precedent, U.S. Br. 40-41.
Leaving the court of appeals’ decision in place as circuit precedent could therefore generate uncertainty in
future extraterritoriality, Fourth Amendment, or subpoena cases arising in the Second Circuit. Given the serious flaws in the court’s reasoning, this case implicates
the traditional need for vacatur to “clear[] the path for
future relitigation of the issues” and to “eliminate[] a
judgment, review of which was prevented through happenstance.” Munsingwear, 340 U.S. at 40.
* * * * *
For the foregoing reasons, the Court should vacate
the court of appeals’ judgment and remand to the court
of appeals with instructions to vacate the district
court’s contempt finding and to direct the district court
to dismiss the case as moot. In the alternative, the
Court should vacate the decision below and remand to
the court of appeals for further proceedings as may be
necessary in light of the CLOUD Act. See, e.g., United
States v. Chesapeake & Potomac Tel. Co., 516 U.S. 415,
416 (1996) (per curiam) (vacating judgment and remanding “for consideration of the question whether
[the cases] are moot”). Finally, if the Court elects to
decide the question presented in the ordinary course
in order to address the legal approach of the court of

 16
appeals in this case, the judgment of the court of appeals should be reversed for the reasons described in
the government’s briefs and at oral argument.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General

MARCH 2018