The 9th Circuit has ruled in Suzion Energy Ltd v. Microsoft Corporation, that emails belonging to a non-US national which are hosted on US based servers by a US Cloud providers. The Electronic Communications Privacy Act of 1986 (ECPA) provides that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communica- tion while in electronic storage by that service.”
In this case Suzlon sought emails under to use in a civil fraud proceeding pending against Rajogopalan Sridhar and others in the Federal Court of Australia (the “Australian Proceedings”). Although Sridhar is a citizen of India and is imprisoned abroad, the relevant emails are stored on a US server by a domestic corporation, Microsoft. The district court initially granted Suzlon’s petition for production of documents. In response, Microsoft filed objections that the district court deemed to be a motion to quash.
The Court construed the term person as defined in the Act to extend to “any person” regardless of nationality. Thereby the court expands the application of the ECPA to foreign nationals. This reading is consistent with other decisions that have interpreted similar laws such as the Freedom of Information Act.