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Monday, October 3, 2011

Ninth Circuit Says ECPA Protects Foreign Citizens

by Thomas O'Toole

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Provisions of the Electronic Communications Privacy Act that forbid internet service providers from disclosing the contents of electronic communications protect e-mail accounts belonging to foreign citizens, the U.S. Court of Appeals for the Ninth Circuit held Oct. 3 in a case of first impression at the federal appellate level. The court affirmed a lower court's refusal to force Microsoft Corp. to turn over to a civil litigant e-mail messages belonging to an India-based user of Microsoft's Hotmail e-mail service.

The case is Suzlon Energy Ltd. v. Sridhar, No. 10-35793 (9th Cir., Oct. 3, 2011).

Following the Ninth Circuit's 2004 ruling in Theofel v. Farey-Jones, 359 F.3d 1066 (2004), internet service providers face civil liability under the ECPA if they disclose a subscriber's e-mail messages in response to a mere civil subpoena. Even before today's decision, the default response for e-mail service providers in the Ninth Circuit is to decline to honor civil subpoenas for the contents of e-mail communications. Today's ruling should bolster that position. Moreover, they won't face the additional burden of determining whether their subscriber is a U.S. citizen when handed a subpoena for e-mail contents--an outcome that would have resulted if Suzlon had prevailed in this appeal.

In a case involving an India citizen whose Microsoft-provided e-mail account was subpoenaed for use in a civil fraud proceeding in Australia, the court concluded that the ECPA's definition of the term "user" as "any person or entity who ... uses an electronic communications service," 18 U.S.C. §2510(13), was broad enough to reach foreign citizens. Congress could have, but did not, place any limitations on this definition of "user," District Judge Andrew J. Guilford wrote for a unanimous three-judge panel.

The court rejected arguments based on the ECPA's legislative history, in particular the argument that, because the Fourth Amendment's protections are limited to U.S. citizens, Congress could not have intended for the ECPA to protect non-citizens. The court found the legislative history inconclusive. Assuming that Congress' primary intent in passing the ECPA was to protect the privacy interests of American citizens, it does not follow that the intent of the ECPA was to protect only American citizens, the court said.

Key to the court's ruling was the fact that the e-mail messages at issue were stored on Microsoft Corp. servers located in the United States. Judge Guilford wrote that the panel opinion did not address whether the ECPA applies to documents stored or acts occurring outside of the United States--a topic that was addressed in Zheng v. Yahoo! Inc., No. 08-1068 (9th Cir., Dec. 2, 2009)(14 ECLR 1714, 12/9/09), where a different Ninth Circuit panel held that the EPCA does not cover e-mail interceptions that take place outside the United States.
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