Categories & Search

Judge Sides with Government over Google in the Latest Battle Rematch over the Territorial Reach of the SCA

Another federal judge has rejected the U.S. Court of Appeals for the Second Circuit’s interpretation of the Stored Communications Act (SCA), and has ordered Google to hand over customer email traffic—wherever located—to U.S. law enforcement.  More than a year ago, the Second Circuit held that Microsoft Corp. was not required to produce customer emails stored on foreign servers in response to an SCA warrant.  Since then, the Second Circuit’s ruling has been rejected by three different federal courts around the country. 

We previously wrote about In the Matter of the Search of Content that Is Stored at Premises Controlled by Google, No. 16-mc-80263 (N.D. Cal.), in which the government obtained a search warrant under 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.  This week, U.S. District Judge Richard Seeborg affirmed an earlier decision by a magistrate, siding with the Government and ordering Google to comply with the warrant by producing all responsive materials that can be retrieved from within the United States.

The court noted that the SCA warrant constituted a domestic exercise of the court’s jurisdiction since even though the data sought by the warrant is stored abroad, Google has control over it here.  Google’s Legal Investigations Support team is authorized to access the content of communications on its vast network, and that team is located in the U.S.  And while Google sought to emphasize the SCA’s privacy protections, the court held that the statute’s warrant requirement “fully protects user privacy.”

The court also made particular note of the fact that, unlike some other tech companies, Google’s network stores data using an algorithm that seeks to optimize efficiency.  As our previous post explained, this process automatically moves data around the world almost constantly.  This, the court observed, has important policy implications for Google’s argument in this case, since it would “render United States warrant authority arbitrarily confined based on where data is located pursuant to an algorithm, not any territorially meaningful storage decision.”

The court’s decision can be read here.  We’ll keep watching this case to see whether Google seeks further review by the Ninth Circuit.