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.
.. . .
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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)