Ninth Circuit Extends Scope of Electronic Communications Privacy Act to Foreign Citizens

The Ninth Circuit unequivocally extended the protections of the Electronic Communications Privacy Act (“ECPA”) to foreign citizens yesterday. In Suzlon Energy Ltd. v. Microsoft Corp. — F.3d — (9th Cir. 2011), the court held that the ECPA protects the emails of non-citizens that are stored in the United States from disclosure.

At issue were various emails belonging to an Indian citizen that were stored in his Microsoft Hotmail account. Relying on the plain language of the statute, the district court rejected the plaintiff energy provider’s request that Microsoft turn over the emails for use in an Australian-based legal proceeding. The Ninth Circuit agreed, finding that the protections of the ECPA expressly encompassed “any person” whose emails were stored “on a domestic server, by a domestic corporation.”

The Suzlon Energy opinion has three additional noteworthy points. First, the Ninth Circuit declined to create by judicial fiat a “civil litigation” exception that would allow the production of the emails. Such an exception would have eviscerated the privacy concerns regarding electronically stored communications that Congress specifically invoked in enacting the statute.

The court also refused to find that the defendant’s status as a party to litigation constituted “implied consent” to the production of his Hotmail emails. Such a finding is consistent with other jurisprudence holding that participation in legal proceedings does not waive the protections of the ECPA.

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Source: eDiscovery 2.0
By: Philip Favro