07.19.2016 1

2nd Circuit rejects globalization of U.S. law over the web

internet_questionsBy Nathan Mehrens

Observers with concerns regarding the rule of law have grown accustomed to disappointing decisions from our courts occurring on a too frequent basis. For them, a recent decision from the U.S. Court of Appeals for the Second Circuit in an important case regarding the application of our laws should provide some hope.

Last week in a 3-0 decision the Second Circuit held for the Microsoft Corporation on its appeal of a motion to quash a warrant that had been issued pursuant to the Stored Communications Act (SCA). While this sounds like a boring technical issue regarding procedure, the decision has important implications for the rule of law and shows how courts should interpret legislation.

The warrant in question sought electronic records (email) that are located outside the United States on a server in Ireland.

The SCA was passed thirty years ago in 1986, at a time when electronic communications and electronic records were handled much differently than they are now. “The cloud” at that point in time referred to fluffy white objects in the sky from which rain falls, not server farms.

At issue in the case is whether the SCA, the text of which does not apply to electronic records located outside of the United States, should be interpreted in such a way as to reach those records. As the court noted, “neither explicitly nor implicitly does the statute envision the application of its warrant provisions overseas.”

Ultimately, the issue is this: do we live under the rule of law, or can laws simply be stretched by the Department of Justice when convenient to achieve a desired result.

In U.S. law there is a strong presumption against extraterritorial application of federal statutes such as the SCA. The court noted this presumption stating that Congressional legislation generally “is meant to apply only within the territorial jurisdiction of the United States.” This is the case, the court stated, “unless a contrary intent clearly appears.” Looking at the plain language the court found that “no relevant definition” in the law “suggests that Congress envisioned any extraterritorial use for the statute.”

In interpreting legislation there is a common-sense principle that Congress, if it so desires, knows how to adjust the application of a particular statute. Congress also is deemed to intend only what it actually says in the statute, and the discovery of hidden meanings is a disfavored method of statutory interpretation.

In this specific case, Congress, if it desired, could have extended the reach of the warrants in question to areas outside the U.S. As Congress chose to not extend the SCA’s application beyond the U.S., the Second Circuit was correct to hold for Microsoft. The court noted the Supreme Court’s holding that an “affirmative indication” regarding the application of a statute to areas outside the U.S. will be present when Congress so intends.

Simply put, this case is about forcing the federal government to comply with the law. That is, the law as actually written and passed by Congress, not some post enactment transmogrification to achieve a specific end. If there are unforeseen issues in the applicability of the SCA to situations occurring thirty years beyond the statute’s enactment, then Congress can consider making changes. It is not, however, the place of the judiciary to do this for them.

Given the general proclivity of the judiciary, from the Supreme Court down, to rewrite laws to achieve a specific end, the decision in this case is a blast of fresh air. The decision also places the correct focus on Congress as the body of our government entrusted to write laws.

Nathan Mehrens is President of Americans for Limited Government Foundation.

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