Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
The transfer of data by Google Inc., pursuant to a request under the Stored Communications Act, doesn’t result in an extraterritorial seizure that would violate the Fourth Amendment, the Eastern District of Pennsylvania held Feb. 3 ( In re Search Warrant No. 16-960-M-01 , 2017 BL 33539, E.D. Pa., No. 16-1061-M, 2/3/17 ).
Magistrate Judge Thomas J. Rueter’s decision to compel Google to produce electronic data that is potentially stored outside the United States comes on the heels of a decision from the Second Circuit that reached an opposite result. Judge Rueter rejected the Second Circuit’s conclusion in Microsoft Corp. v. United States, 2d Cir. App., No. 829 F. 3d 197, 7/25/16 , that the seizure of data stored in foreign countries constituted an invasion of privacy, creating more uncertainty in the absence of a Supreme Court decision addressing the issue.
This action arose from the August 2016 issuance of two search warrants under the Stored Communications Act, requiring Google to disclose to FBI agents electronic data held in the accounts of two alleged criminals. The court put great weight on the following factors in issuing the warrants: each account holder resided in the U.S., the alleged crimes occurred in the U.S. and the data at issue was exchanged within the U.S.
Google partially complied with the warrants, but refused to produce records stored outside the U.S. The government moved to compel the production of those documents.
Relying on Microsoft, Google argued that a warrant issued under the SCA “lawfully reaches only data stored within the United States.”
In Microsoft, the Second Circuit found that the SCA doesn’t contemplate extraterritorial application and that the term of art “warrant” used in the SCA was intended to protect privacy rights. The Second Circuit found that the SCA focused on user privacy and determined that enforcing the warrant and directing Microsoft to seize communications stored in Ireland would be an unlawful extraterritorial application.
But the Eastern District of Pennsylvania disagreed with that analysis.
“The crux of the issue before the court is as follows: assuming the focus of the Act is on privacy concerns, where do the invasions of privacy take place?,” the court said. “To make that determination, the court must analyze where the seizures, if any, occur and where the searches of user data take place.”
The court found that electronically transferring data from a server in a foreign country to Google’s data center in the U.S. didn’t amount to a seizure because “there is no meaningful interference with the account holder’s possessory interest in the user data.”
The court noted that Google regularly transfers data without customer knowledge, and that such transfers don’t interfere with the customer’s access or interest in the data.
The court then turned to where the search at issue occurs. The court said that since the government will view the electronic data in the United States, that is where the search will be deemed to have occurred.
“Under the facts before this court, the conduct relevant to the SCA’s focus will occur in the United States … That is, the invasions of privacy will occur in the United States; the searches of the electronic data disclosed by Google pursuant to the warrants will occur in the United States when the FBI reviews the copies of the requested data in Pennsylvania,” the court said. “These cases, therefore, involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad.”
Perkins Coie represented Google Inc.
The U.S. Attorney’s Office in Philadephia represented the government.
To contact the reporter on this story: Tera Brostoff in Washington at email@example.com
To contact the editor responsible for this story: Carol Eoannou at firstname.lastname@example.org
Full text at http://src.bna.com/l1K.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)