After Second Circuit split 4-4 on whether Google could be compelled to provide e-mails stored in a server in Ireland by a warrant, a USMJ in D.C. holds that Google has to produce e-mails stored on that server. In the Matter of the Search of Information Associated with (Redacted)@gmail.com That Is Stored at Premises Controlled by Google, Inc., 16-mj-757 (GMH) (D.C.C. June 2, 2017):
On July 14, 2016, the United States Court of Appeals for the Second Circuit determined that the Stored Communications Act, 18 U.S.C. § 2701 et seq. (“SCA”), “‘does not authorize a U.S. court to issue and enforce an SCA warrant against a United States-based [electronic communications or remote computing] service provider for the contents of a customer’s electronic communications stored on servers located outside the United States.” In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829 F.3d 197, 222 (2d Cir. 2016) (“Microsoft”), reh ‘g denied en bane, 855 F.3d 53 (2d Cir. 2017). Following the court’s decision, the government petitioned for a rehearing en bane, which the Second Circuit denied in an evenly split four-four vote. See In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 855 F.3d 53, 55 (2d Cir. 2017) (“Microsoft II”). Against this backdrop and as a matter of first impression in this circuit. the undersigned must now resolve whether this Court will follow the Second Circuit’s decision in Microsoft.
Last November, the Court issued a search warrant pursuant to section 2703 of the SCA requiring Google, Inc. (“Google”) to disclose to the government the electronic records and information associated.with a Google email account that the government believes was used by the subject of a criminal investigation. Google refused to produce all of the information called for by the warrant based on its reading of the Second Circuit’s decision in Microsoft. Specifically, Google refused to disclose any electronic data stored on servers located outside the United States. Google’s refusal prompted the government to move for an order instructing Google to show cause for why it should not be compelled to comply fully with the warrant–i.e., to produce all responsive data within Google’s possession, custody, or control wherever that data may be electronically stored. The Court granted the government’s request and instructed the parties to submit written responses in support of their positions. After the matter became ripe for adjudication, the Court held a hearing to address the parties’ arguments. Upon consideration of the parties’ filings and the entire record herein, 2 the Court finds persuasive the reasoning of the four dissenters in the denial of the rehearing en bane in Microsoft II. Accordingly, the undersigned respectfully declines to follow Microsoft and concludes that Google’s disclosure of the records and information from its headquarters in the United States is a domestic application of the SCA. Thus, Google will be compelled to comply fully with the warrant and to disclose all requested electronic records and information identified in Attachment B to the warrant within its possession, custody, or control, wherever those records and information may be electronically stored.