Ninth Circuit Holds EPCA Applies To Non-Citizens In Foreign Court Disputes

Here’s a little case out of the Ninth Circuit that extends the Electronic Communications Privacy Act (ECPA) to non-citizens involved in foreign proceedings.  The question arose in a civil case in Australia between Suzlon Energy Ltd. And Rajagopalan Sridhar.  Suzlon wants Sridhar’s emails contained in his Hotmail account, which happen to reside on Microsoft’s servers in the United States.  The District Court initially granted Suzlon’s request but reversed itself when Microsoft objected through a filing.  The Court took this as a motion to quash the request to produce the desired emails and granted it under the language of the ECPA.

The Ninth Circuit upheld the District Court’s decision, essentially holding that the plain language of the statute requires the result.  The statute uses the term “any person” as defining a user of an electronic communication service which is subject to the provision of the Act.  Citizen or not, Sridhar falls into the category of “any person” as far as the Court of Appeals is concerned.  The Court bolstered its decision by looking at the legislative history, though not relying on it as the basis of its decision. 

The legislative history used by the Court quotes a Senate Report stating “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.”  The Court, however, says it would be a time-consuming for a lower court to have to consider the citizenship status of someone to decide whether the Act applies to them, at least where the documents are stored in the United States.  In any event, “any person” means “any person.”  Circuit precedent states that the Act applies to requests pertaining to civil litigation.

I expect an appeal to the U.S. Supreme Court.  The case is Suzlon Energy v. Microsoft Corporation (10-35793, issued October 3, 2011).  Hat tip to the BNA Electronic Commerce & Law Report.  [MG]