Google must turn over foreign-stored emails pursuant to a warrant, court rules

Google must turn over foreign-stored emails pursuant to a warrant, court rules
By Orin Kerr
Feb 3 2017
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/03/google-must-turn-over-foreign-stored-e-mails-pursuant-to-a-warrant-court-rules/

A federal magistrate judge handed down an opinion this afternoon, In re Search Warrant No. 16-960-M-01 to Google, ordering Google to comply with a search warrant to produce foreign-stored emails. The magistrate judge disagrees with the U.S. Court of Appeals for the 2nd Circuit’s Microsoft Ireland warrant case, recently denied rehearing by an evenly divided court. Although the new decision is only a single opinion by a single magistrate judge, the decision shows that the Justice Department is asking judges outside the Second Circuit to reject the Second Circuit’s ruling — and that at least one judge has agreed.

The new case involves two routine Stored Communications Act warrants served on Google for the contents of emails. Google responded with the emails that it knows were stored inside the United States, but it refused to turn over emails that could be outside the United States. Because Google breaks up its emails and the network might distribute them anywhere in the world, Google can’t know where many emails are located and declined to produce them under the Second Circuit’s Microsoft case.

The government moved to compel Google to produce all of the emails within the scope of the warrant. Magistrate Judge Thomas J. Rueter ruled that Google has to comply with the warrant in full because “the conduct relevant to the SCA’s focus will occur in the United States” even for the data that is retrieved from outside 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. These cases, therefore, involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad.

The court reasoned that when a network provider is ordered to retrieve information from abroad, that copying of information abroad and sending back to the United States does not count as a Fourth Amendment “search” or “seizure” outside the United States:

This court agrees with the Second Circuit’s reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit’s analysis regarding the location of the seizure and the invasion of privacy. 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? To make that determination, the court must analyze where the seizures, if any, occur and where the searches of user data take place. This requires the court to examine relevant Fourth Amendment precedent.

[snip]

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