SUZLON ENERGY LTD. v. MICROSOFT CORP. No. 10-35793.
671 F.3d 726 (2011)
SUZLON ENERGY LTD., Petitioner-Appellant, and Rajagopalan Sridhar, Intervenor-Defendant-Appellee, v. MICROSOFT CORPORATION, Respondent-Appellee.
United States Court of Appeals, Ninth Circuit.
Filed October 3, 2011.
Jeremy J.O. Harwood, New York, NY, for the petitioner-appellant.
Blake Marks-Dias, Seattle, WA, for the respondent-appellee.
Michael A. Barcott, Seattle, WA, Svetlana P. Spivak, Law Offices of Holmes Weddle & Barcott, Seattle, WA, for the intervenor-defendant-appellee.
Before: JOHN T. NOONAN and MILAN D. SMITH, JR., Circuit Judges, and ANDREW J. GUILFORD, District Judge.
GUILFORD, District Judge:
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.
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.,
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 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.
1.2 Plain Text of the ECPA
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, 540 U.S. at 534, 124 S.Ct. 1023 ("It is well established that when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.") (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,
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, "[l]egislative 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:
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., 2009 WL 4430297 at *4, No. C-08-1068 MMC (Dec. 2, 2009) (finding that the ECPA does not cover acts outside of the United States).
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, 359 F.3d at 1071-72, 1077 (applying the ECPA to subpoena requests). As before, even if Congress' most pressing concern was law enforcement agencies issuing subpoenas, that does not mean that Congress was not also concerned about civil litigants issuing discovery requests. Declaring an implicit exception to the ECPA for civil litigation would erode the safety of the stored electronic information and trigger Congress' privacy concerns. See id. at 1073-74 (finding that because the "subpoena caused disclosure of documents that otherwise would have remained private[,]" it invaded "the specific interests that the [ECPA] seeks to protect." (citations and quotation marks omitted)).
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, 252 F.R.D. 346, 366 (E.D.Mich.2008) (finding that implied consent rests on a theory of waiver, such as when a person uses a service after being informed of a policy of disclosure and monitoring.)
We find that Suzlon's argument for implied consent fails.
The ECPA protects the domestic communications of non-citizens like Sridhar. Thus, the decision of the district court denying the production of documents is
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