OPINION
While the parties in this case raise issues of international policy, constitutional rights, and the fortuities of the Internet age, this case ultimately turns on the plain language of the relevant statute. Suzlon Energy Ltd. (“Suzlon”) has demanded that Microsoft Corp. (“Microsoft”) produce documents from the Microsoft Hotmail email account of Rajagopalan Sridhar, an Indian citizen imprisoned abroad. Microsoft objected to the production and the district court agreed, finding that Sridhar was entitled to the protection of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2522, even though he was a foreign citizen. We affirm.
BACKGROUND
The facts of this case are straightforward and largely undisputed, with any disputed facts not affecting the resolution of this case. Suzlon sought emails under 28 U.S.C. § 1782 to use in a civil fraud proceeding pending against Sridhar and others in the Federal Court of Australia (the “Australian Proceedings”). Although Sridhar is a citizen of India and is imprisoned abroad, the relevant emails are stored on a domestic server by a domestic corporation, Microsoft. The district court initially granted Suzlon’s petition for production of documents (“Production Order”). In response, Microsoft filed objections that the district court deemed to be a motion to quash.
Microsoft and Sridhar raised several arguments below to support the motion to quash. First, Microsoft argued that the documents sought must be discoverable in the foreign proceeding. The district court rejected this argument based on
Intel Corp. v. Advanced Micro Devices, Inc.,
DISCUSSION
1. ECPA
The threshold question in this case is whether the plain language of the ECPA extends to foreign citizens.
See, e.g., Lamie v. U.S. Trustee,
1.1 Statutory Framework of the ECPA
As noted, Suzlon filed a petition for production of documents to assist in the Australian Proceedings. Suzlon sought this relief under 28 U.S.C. § 1782, which states in part:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court....
The Ninth Circuit has previously held that the ECPA limits § 1782 by making it illegal for an entity that provides an electronic communication service to the public to produce the contents of its stored communications.
See Theofel v. Farey-Jones,
The question now presented is whether the protections of the ECPA extend to the contents of communications of foreign citizens. In other words, does the mere fact that Sridhar happens to lack U.S. citizenship mean that Microsoft has to produce his emails under a § 1782 order? The answer depends on the proper interpretation of “any person” in § 2510(13). To resolve this dispute, the Court turns to the plain text of the statute.
The Court affirms the district court’s finding that the plain text of the ECPA applies its terms to “any person,” without qualification. 18 U.S.C. § 2510(13). Any person means any person, including foreign citizens.
The Court also finds that the statute as a whole confirms that Congress intended the term “any person” to cover non-citizens. Two strong arguments bolster this conclusion. First, 18 U.S.C. § 2702(b) and (c) list numerous exceptions to the rule as set forth in § 2702(a), which prohibits the knowing divulgence of the contents of a communication while in electronic storage. But neither § 2702(b) nor (c) list citizenship as an exception.
Second, 18 U.S.C. § 2510(13) defines a user as “any person or entity who—(A) uses an electronic communication service; and (B) is duly authorized by the provider of such service to engage in such use.” The statute starts with the very broad term “any person or entity” and then limits it with two conjunctive qualifications. Microsoft and Sridhar argue that Congress could have added other requirements, such as U.S. citizenship, if that were the intent behind the ECPA. The fact that Congress did not do so indicates that it did not want to impose any additional limitations.
The reasoning of
O’Rourke v. U.S. Dept. of Justice,
The Court finds that the plain language of the ECPA extends its protections to non-citizens. The Court is therefore obligated to enforce the statute as written.
See Lamie,
1.3 Legislative History of the ECPA
Because we find that the plain language of the ECPA is clear, we accept the district court’s finding that it did not need to consider the legislative history of the ECPA. Stated otherwise, “[[legislative history cannot trump the statute.”
Bonneville Power Admin. v. FERC,
Still, the Court will analyze the statute’s history for its instructive value. Suzlon argues that the ECPA was enacted against a backdrop of Fourth Amendment protections, citing the following passage:
With the advent of computerized record keeping systems Americans have the ability to lock away a great deal of personal and business information ... [T]he law must advance with technology toensure the continued vitality of the fourth amendment.... Congress must act to protect the privacy of our citizens ... The Committee believes that [this Act] represents a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.
S.Rep. No. 99-541, at 3557-59 (1986), 1986 U.S.C.C.A.N. 3555, 3559.
This passage indicates that Congress’ primary intent in passing the ECPA was to protect the privacy interests of American citizens. Suzlon therefore argues that the intent of the ECPA was to protect only American citizens. But the fact that the ECPA was intended to shore up Fourth Amendment rights does not mean that Congress specifically intended to exclude foreign citizens from the scope of the Amendment.
To the contrary, to fully protect American citizens it might be necessary to extend the ECPA to all domestic communications, regardless of who sent them. Further, Suzlon’s restrictive reading of the ECPA would put email service providers in an untenable position. By limiting the ECPA only to those people entitled to Fourth Amendment protection, as urged by Suzlon, an email service provider would need to assess whether a particular account holder was at all times a U.S. citizen, or later became a citizen, or was a resident alien with some Fourth Amendment protection, or if there were other reasons to provide Fourth Amendment rights. This would be a costly, fact-intensive, and difficult determination. But under Microsoft’s interpretation of “any person,” it’s clear that the ECPA at least applies whenever the requested documents are stored in the United States. The Court does not address here whether the ECPA applies to documents stored or acts occurring outside of the United States.
See Zheng v. Yahoo! Inc.,
Suzlon also argues that nowhere in the legislative history or text of the ECPA does Congress address civil litigation, indicating that perhaps Congress intended for the ECPA to only apply to government law enforcement. This argument ignores Ninth Circuit cases holding exactly the opposite.
Theofel,
We conclude that nothing in the legislative history clearly refutes the plain language of the text. In fact, the underlying policy implications of the statute are most consistent with the plain text of the ECPA. Thus, the Court remains firm in its initial finding that the ECPA unambiguously applies to foreign citizens.
2. IMPLIED CONSENT
As a further argument, Suzlon claims that Sridhar gave his implied consent to the production of his documents. The district court’s Quash Order did not address this point, perhaps failing, as does this Court, to see the logic of Suzlon’s claim.
Under Suzlon’s own reasoning, Sridhar himself is the person who should be responsible for disclosing his own emails. Suzlon’s supposed implied consent argument has no bearing on its efforts to get those emails from Microsoft, who is not a party to the litigation. Not surprisingly, Microsoft takes no position on the issue of whether Sridhar could be deemed to have given implied consent in this particular case.
In contrast, Sridhar vigorously argues— both in his papers and at oral argument— that his actions do not establish implied consent. Sridhar argues that he has consistently objected to the disclosure of his Hotmail emails and, accordingly, has not consented to their production.
Nor has Sridhar consented to Microsoft producing his emails on his behalf. He reasonably relied upon his Hotmail service agreement, which stated that his emails would be disclosed only according to U.S. law and under other circumstances not relevant here. Microsoft never told Sridhar that his communications might be monitored or disclosed. Thus, there is no argument that Sridhar waived his reasonable expectation of privacy by continuing to use the service after such notice.
See, e.g., Flagg v. City of Detroit,
We find that Suzlon’s argument for implied consent fails.
CONCLUSION
The ECPA protects the domestic communications of non-citizens like Sridhar. Thus, the decision of the district court denying the production of documents is AFFIRMED.