N.D.Cal.: Google mail stored overseas but only accessible from U.S. subject to SW here

The Stored Communications Act can apply extraterritorially when the data is stored overseas but it can only be accessed from Google here in the U.S. In re Search of Content that is Stored at Premises Controlled by Google, 2017 U.S. Dist. LEXIS 59990 (N.D. Cal. April 19, 2017) (distinguishing In the Matter of a Warrant to Search a Certain EMail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016)):

The government applied for, and the court issued, a search warrant under 18 U.S.C. § 2703(a), the Stored Communications Act (“SCA”), directing Google to produce stored content related to certain email accounts. Google moved to quash on two grounds: (1) the government cannot compel Google to disclose content that it stores outside the United States; and (2) the search warrant asks for content that does not exist in the locations that the government specified (such as “Dasher Policy” or “GA Plus”). The court addressed the second issue in an earlier order; if the parties disagree about whether there is responsive data (and they likely do not), they will submit any discovery disputes in a joint letter brief. The remaining dispute is whether must produce content that it stores outside of the United States.

Google has a distributed system where algorithms determine how it sends and stores data — in packets or component parts — in aid of overall network efficiency. In this case, the result is that Google has content that is responsive to the search warrant and is stored wholly outside of the United States. The legal issue is whether § 2703(a) reaches content stored outside of the United States. Citing the Second Circuit, Google contends that the government cannot compel it to disclose the extraterritorial content. See In the Matter of a Warrant to Search a Certain EMail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), reh’g denied en banc, No. 14-2985, 2017 U.S. App. LEXIS 1274, 2017 WL 362765 (2d Cir. Jan. 24, 2017). The government counters that the SCA authorizes production of data retrievable from the United States.

The SCA regulates disclosure of data in a service provider’s possession. The service provider — Google— is in the district and is subject to the court’s jurisdiction; the warrant is directed to it in the only place where it can access and deliver the information that the government seeks. This disclosure is a domestic application of the SCA. The court thus orders Google to produce all content responsive to the search warrant that is retrievable from the United States, regardless of the data’s actual location.

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The parties stipulate that the only place to access the information is in the United States. Even if the SCA’s focus is privacy, the warrant requirement — with its attendant requirement of probable cause — protects privacy. 2017 U.S. App. LEXIS 1274, [WL] at *6 (Jacobs, J., dissenting). Moreover, an SCA warrant is not a search warrant in the classic sense: the government does not search a location or seize evidence. Instead, the conduct relevant to the focus — and what the SCA seeks to regulate — is disclosure of the data in the service provider’s possession. 2017 U.S. App. LEXIS 1274, [WL] at *10 (Cabranes, J., dissenting). The service provider — Google— is in the district and is subject to the court’s jurisdiction; the warrant is directed to it in the only place where it can access and deliver the information that the government seeks. “[I]f statutory and constitutional standards are met, it should not matter” where a service provider chooses to store the 1′s and 0′s. 2017 U.S. App. LEXIS 1274, [WL] at *7 (Jacobs, J., dissenting). That conclusion is especially true here. Unlike Microsoft, where storage of information was tethered to a user’s reported location, 829 F.3d at 203, there is no storage decision here. The process of distributing information is automatic, via an algorithm, and in aid of network efficiency.

In sum, the disclosure is a domestic application of the SCA. Other courts have reached similar conclusions after a similar analysis of the Microsoft decision. See, e.g., In re: Information associated with one Yahoo email address that is stored at premises controlled by Yahoo, No. 2:17-mj-1234-WED, ECF No. 1, 2017 U.S. Dist. LEXIS 24591 at *6-7 (E.D. Wis. Feb. 21, 2017); In re Search Warrant to Google, No. 2:16-mj-960-JS-1, 2017 U.S. Dist. LEXIS 15232, 2017 WL 471564, at *9-14 (E.D. Pa. Feb. 3, 2017).

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