Categories & Search

Court Rejects DOJ’s Depiction of Google as “Willful and Contemptuous” Tactics in Ongoing Battle over SCA Search Warrant

A federal judge in California has agreed to hold Google in contempt for not following his order to turn over data stored overseas.  The order is largely symbolic, however, since a contempt order is required for Google to appeal the ruling.

We’ve been covering the dispute between the government and Google over the company’s refusal to hand over customer data stored on foreign servers.  The last time we wrote about this case, the Justice Department had demanded that Google be sanctioned for not abiding by the court’s most recent decision—ordering it to produce data associated with 22 email accounts—and had decried Google’s conduct as “a willful and contemptuous disregard of various court orders.”  The court has now sided with Google, and will let Google appeal its ruling without the imposition of significant sanctions.  The case is In the Matter of the Search of Content that Is Stored at Premises Controlled by Google, No. 16-mc-80263 (N.D. Cal.).

As we explained in previous updates, the government obtained a search warrant under the Stored Communications Act (the “SCA”) for access to Google customer accounts, including emails, contacts, files, location history, and search history.  Google partially complied with the warrant by turning over information that was stored domestically, but filed a motion to quash the warrant to the extent it compelled production of data stored on servers located abroad.  U.S. District Judge Richard Seeborg rejected Google’s arguments—along with the Second Circuit’s interpretation of the SCA in the Microsoft case, which we’ve blogged about here, here, and here —and ordered Google to hand over customer email traffic, wherever located, to U.S. law enforcement.  (Since then, the U.S. Supreme Court agreed to hear the government’s appeal of Microsoft, as we discussed here.)

Google planned to appeal the court’s ruling, and asked the court to hold it in civil contempt in order to do so.  Google also asked requested that the court stay any sanctions during the pendency of the appeal, on the grounds that Google is simply acting in good faith to seek clarity on an important legal issue.  The company said it would continue to preserve the information at issue, and pledged to immediately produce the information if it loses on appeal.

The government took a different view:  it accused Google of “alarming” behavior and “willful and contemptuous disregard” for the court, and asked the court to impose steep monetary sanctions on the company.  The government also sought a hearing to determine “[w]ho at Google was responsible” for the company’s litigation and business responses to the SCA warrant, for the purposes of crafting an appropriate fine. 

In a written decision, the court held Google in civil contempt but denied the government’s motion for an evidentiary hearing to craft more punishing sanctions.  Ultimately, the court found Google’s explanation of its conduct more persuasive:  Google believes in good faith that it is not legally required to turn over any data to the government, based on the Microsoft decision.  The court adopted Google’s suggestion of imposing only $10,000 per day in sanctions, which would only begin to accrue in the event the Ninth Circuit affirms Judge Seeborg’s SCA ruling.  The court acknowledged that $10,000 per day seems like a small amount to impose on a company Google’s size, but reasoned that these sums will quickly add up if Google loses its appeal—especially if the Supreme Court overturns the Microsoft ruling as well.  Under these circumstances, the judge concluded, it would be unduly punitive to order more significant sanctions.

Judge Seeborg’s decision can be read here.  We’ll keep watching this case for significant developments.