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Alphabet Inc.'s Google has asked Vermont’s highest court to weigh in on a question that has divided federal courts, whether search warrants seeking data stored on servers outside the U.S. can be enforced ( In re Google Search Warrants, Vt. Super. Ct., 16-MB-004413, 17AG000003, 15AG000082, notice of appeal filed 9/5/17 ).
As companies store data across national borders, the question of whether companies can be forced by the government to hand over data on servers in countries with privacy laws that disfavor relinquishing such information to the government has arisen with greater frequency. The issue is the subject of a petition to the U.S. Supreme Court.
Google’s Sept. 5 appeal to the Vermont Supreme Court was in response to a July 31 Vermont Superior Court order that it comply with three search warrants issued in connection with investigations into alleged sexual exploitation of children.
The state asserted that Vermont’s Electronic Communications Privacy Act requires Google to comply with the warrant, even though the data is stored outside the country. Google said it had handed over all of the data located in the U.S. but refused to relinquish data stored abroad, citing the U.S. Court of Appeals for the Second Circuit’s 2016 ruling in Microsoft v. United States. The case held that held Microsoft Inc. didn’t need to turn over emails stored in Ireland to U.S. law enforcement because the federal Stored Communications Act (SCA) wasn’t intended to reach data stored in overseas data centers.
The federal government has petitioned the U.S. Supreme Court to review the Microsoft ruling with the support of Vermont and 31 other states.
Vermont Superior Court Judge Samuel Hoar Jr. held that state law authorized the warrants and said “the SCA does not constrain that authority.” In a Sept. 6 statement, Vermont Attorney General TJ Donovan (D) and Addison County State’s Attorney Dennis Wygmans said the ruling recognized that because the warrants were issued in Vermont, the actual search and seizure would take place within the U.S.
The Second Circuit opinion is an outlier among other rulings that have considered whether communications companies should be forced to turn over data stored overseas. Most courts haven’t been swayed by the arguments that forcing companies to turn over data stored abroad.
Judge Richard Seeborg of the U.S. District Court for the Northern District of California Aug. 14 upheld a magistrate judge’s order denying Google’s motion to quash a warrant seeking Gmail data stored abroad. The court rejected Google’s argument that the SCA warrant was applied beyond U.S. borders in violation of the statute, and turning over the data would flout user privacy interests.
Google didn’t immediately respond to Bloomberg BNA’s email request for comment.
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The Vermont Superior Court order is available at http://src.bna.com/sgT.
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