Google Must Hand Over Electronic Records Stored Outside U.S.

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By Tera Brostoff

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.

Microsoft

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.

Court Respectfully Disagrees With Second Circuit

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.

Search is Done Stateside

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 tbrostoff@bna.com

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com

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