U.S. Reasserts Right to Access Communications Stored Abroad

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By Daniel R. Stoller

The U.S. government June 20 reasserted in federal court that Alphabet Inc.'s Google, in response to a Stored Communications Act warrant, must turn over communications stored abroad ( In re Search of Content Stored at Premises Controlled by Google, Inc. , N.D. Cal., No. 16-mc-80263, reply brief 6/20/17 ).

The government said in the reply brief filed in the U.S. District Court for the Northern District of California that recent federal court decisions have ruled that compelling U.S.-based technology and communications companies to hand over data stored abroad isn’t an unlawful extension of the SCA’s reach beyond U.S. borders. In this case, prosecutors obtained a warrant seeking access to communications of Google users stored on servers outside the U.S.

The SCA, which is part of the 30-year-old Electronic Communications Privacy Act, prohibits the unauthorized access of electronic communications in storage. Provisions in the act allow for law enforcement access to stored communications pursuant to a valid court order.

U.S. technology companies, especially those with overseas data centers, have increasingly been in court battles over whether law enforcement agencies have the right to access customer data and communications when they are exclusively stored in overseas data centers. Companies often use various methods for determining where data are stored. For example, Microsoft Corp. allows users to select a location and stores data based on that information, while Google uses an algorithm based on network efficiencies and other business motives.

The government said that the analysis of the SCA warrant should be based on where the information would be disclosed rather than where it is stored.

Tech industry groups and bipartisan lawmakers have pushed for updates to the law to add more clarity for companies and law enforcement agencies. None of the update measures have been enacted.

Differing Decisions

In an earlier friend-of-the-court brief, Microsoft, Amazon.com Inc., Apple Inc., and Cisco Systems Inc. relied on the holding of the U.S Court of Appeals for the Second Circuit in Microsoft v. U.S. that the SCA doesn’t contemplate extraterritorial application and that the term of art, “warrant,” in the SCA was intended to protect privacy rights.

The government, however, asserts in the reply brief that the decision was rejected by four dissenting judges in the “evenly-split denial of rehearing,” in addition to five other magistrate judge rulings since.

Google didn’t immediately respond to Bloomberg BNA’s email request for comment on the reply brief. A DOJ spokeswoman declined to comment on the litigation.

Google is represented by Perkins Coie LLP. The government is represented by the DOJ.

To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

Full text of the reply brief is available at http://src.bna.com/p4u.

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