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Ninth Circuit Gives Google Reprieve to Resolve Overseas Warrant Dispute

A federal appeals court is giving Google and the Justice Department more time to work out their differences in a standoff over whether the tech giant must hand over customer emails stored outside of the United States.

The U.S. Supreme Court sidestepped the same legal question about the reach of warrants issued under the Stored Communications Act or SCA when Congress passed the CLOUD—Clarifying Lawful Overseas Use of Data—Act earlier this year.  As we discussed in April, the Supreme Court dismissed the long-running dispute between Microsoft and the Justice Department as moot because of the CLOUD Act’s passage.

Like the Microsoft case, the dispute between the government and Google is based upon the company’s refusal to hand over customer accounts and emails stored abroad.  The government obtained an SCA warrant for access to this account information, which included not only emails but also 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—and in so doing, also rejected the Second Circuit’s interpretation of the SCA in the Microsoft case, discussed here—and ordered Google to hand over customer email traffic, regardless of location, to U.S. law enforcement.  Google appealed Judge Seeborg’s decision to the U.S. Court of Appeals for the Ninth Circuit, but asked it to delay briefing until after the Supreme Court’s ruling in Microsoft was announced. 

Then Congress enacted the CLOUD Act.  As we have explained, the CLOUD Act amends the SCA to state that an internet service provider “shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.”  It also provides for a “comity” analysis in the event a warrant seeks information that, if handed over, would violate the laws of another country.  After that, the government issued a new warrant to Microsoft and urged the Supreme Court to dismiss the Microsoft appeal as moot.  The Court agreed.

Following the Microsoft dismissal, Google filed a motion with the Ninth Circuit asking that the appeals court vacate Judge Seeborg’s rulings against Google and remand the matter in light of the CLOUD Act’s passage.  The government opposed vacatur of Judge Seeborg’s rulings but proposed an alternative course of remand.  (Precisely what the government proposed is unclear because its brief is under seal.) 

Instead of filing a reply in further support of its motion to vacate, Google asked the Ninth Circuit for an additional stay.  Google explained that it is in the midst of ongoing discussions with the government about “how the parties might resolve this case.”  It requested a new deadline of September 7 to report on the progress of those discussions.  The government did not oppose Google’s request—and in a short order filed on August 9, 2018—the Ninth Circuit granted it.

We’ll continue to keep an eye on this case and will report back on whether Google and the government are able to resolve their differences.