The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

9th Circuit Rules ECPA Applies to Foreign Citizens

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On Monday, the Ninth Circuit announced its decision in Suzlon Energy Ltd. v. Microsoft Corp., — F.3d — (9th Cir. 2011), holding that the plain language of the Electronic Communications Privacy Act ("ECPA") applies to any person, including foreigners.

In Suzlon Energy, Suzlon Energy sought production of emails from Microsoft stored in the United States for use against an Indian citizen in a civil action in Australia. Initially the district court granted Suzlon Energy’s request, and in response, Microsoft filed an objection. The district court ultimately agreed with Microsoft and held that ECPA prohibited Microsoft’s disclosure of the emails.

The Ninth Circuit affirmed the district court’s decision, stating "[t]he 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."  The Ninth Circuit also examined the legislative history of ECPA, and found it did not "clearly refute" the plain language of the statute.  The Court cautioned however that ECPA’s protections only applied to information stored in the United States.

A full copy of the decision is located here.  It will be interesting to see what impact, if any, this decision has on the growing movement to modernize ECPA.

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Author: Heather Enlow-Novitsky

VP, Assistant General Counsel, Bank of America Merchant Services

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