Court Mulls Non-U.S. Citizens’ Email Privacy

     SEATTLE (CN) – An Indian energy company asked the 9th Circuit to force Microsoft to produce emails from an Indian citizen’s Hotmail account, arguing that the customer is not protected under the Electronic Communications Privacy Act.
     Suzlon Energy originally subpoenaed the documents for use in Australian court in a case involving Rajagopalan Sridhar, a former Suzlon employee accused of fraud.     
     The company claims Sridhar defrauded it by diverting profits to unauthorized accounts, making excessive payments, diverting business opportunities and secretly transferring funds to Swiss bank accounts. Suzlon wanted Microsoft to turn over all emails sent to and from Sridhar’s Hotmail account, as well as deleted emails and saved drafts. It also asked for copies of all “non-content” information related to the account, such as written agreements between Microsoft and the account holder.
     But Microsoft said Suzlon had not established that the documents would be discoverable in the foreign jurisdiction. It also claimed Microsoft had improperly issued the subpoena and asked for relief in violation of the Electronic Communications Privacy Act (ECPA).
     U.S. District Court Judge Marsha Pechman ordered Microsoft to produce the non-content information about the email account, but agreed the act applied to all persons, including Indian citizens.
     “On the plain terms of the statute, Mr. Sridhar’s emails are protected from disclosure,” Pechman wrote.
     Arguing before the three-judge appellate panel on Wednesday, Suzlon’s attorney, Jeremy Harwood, said that legislative intent is important in this case.
     “Had Congress known that Mr. Sridhar is based in India, is going to be storing his emails in the United States, and then fails to comply with Australian court proceedings and subpoenas – then he comes in and claims his reasonable privacy expectations, they would say, ‘No, no we didn’t intend that.'”
     But Judge Milan Smith remarked that when Congress wants to distinguish between a U.S. citizen and noncitizen, “it knows how to do it,” citing the Religious Freedom Restoration Act as an example.
     Harwood said the case involves “multijurisdictional massive global fraud,” and that Suzlon was trying to trace the money, not establish Sridhar’s guilt.
      “If emails were not subject to discovery, by simply expediently parking them in the United States and then claiming ECPA, every felon in the world would do so,” Harwood said.
     Microsoft attorney Blake Marks-Dias called those concerns “exaggerated.”
     “If the email concerned a serious criminal enterprise, the ECPA has law enforcement exceptions, which apply, so you could get the email content,” he said.
     Suzlon’s policy arguments can’t trump the “plain meaning of what Congress wrote in the statute,” Marks-Dias said.
     “There is something to be said that policy arguments are OK if you’re backing up the plain meaning, but suspect if you’re using them to get away from the plain meaning,” Judge Andrew Guilford said.
     Judge Smith questioned Sridhar’s attorney, Svetlana Spivak, about the District Court’s failure to deal with “implied consent” and asked if that part of the case should be sent back for consideration. Spivak replied that the lower court was fully briefed on the implied-consent arguments and concluded that it does not apply in this case. She said her client’s “contract with Microsoft indicated that U.S. law would apply.” She also claimed that here was no indication “whatsoever” that Sridhar’s personal emails are relevant to the Australian fraud case.
     Judge Smith said he hoped Harwood would get to argue the case before the Supreme Court and mentioned a Biblical reference involving Paul and Caesar in Harwood’s opening comments.
     “It would present the interesting paradox of where Justice Scalia would have to decide, since Paul is involved, whether originalism takes precedence over legislative history, which he despises.”

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