Ninth Circuit: ECPA Protects Stored Communications of Foreign Citizens


Suzlon Energy Ltd. demanded Microsoft to produce emails from the Hotmail email account of Rajagopalan Sridhar, an Indian citizen imprisoned abroad. The district court held that the Electronic Communications Privacy Act (“ECPA”) prohibited Microsoft from producing the documents even though Sridhar was not a U.S. citizen. The Ninth Circuit affirmed.

Suzlon Energy Ltd. sought Sridhar’s emails pursuant to 28 U.S.C. § 1782, which, in part, allows a district court to compel production of documents by a person residing in the court’s district for use in a foreign proceeding. The Ninth Circuit noted that its own precedent held that the ECPA limited Section 1782 by prohibiting an electronic communications service provider (such as Microsoft) from producing stored communications of a user of its service. The issue for the Ninth Circuit here was whether this protection extended to foreign citizens.

Looking at the plain language of the ECPA, which defines a “user” as “any person or entity,” ruled matter-of-factly that “any person” included foreign citizens. According to the Ninth Circuit, “the ECPA does not facially restrict its application to U.S. citizens. And . . . Congress knows how to explicitly limit a statute to U.S. citizens when it intends to do so.” The Ninth Circuit also looked to the legislative history of the ECPA “for instructive value” and found that “nothing in the legislative history clearly refutes the plain language of the text.” Thus, “the ECPA unambiguously applies to foreign citizens.”

The Ninth Circuit’s opinion can be found here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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