Google’s Overseas Warrants: A Game of Tug-of-War Over Access to Data

On February 3, 2017, Eastern District of Pennsylvania Magistrate Judge Thomas J. Rueter ordered Google to comply with FBI search warrants to produce emails stored on foreign servers as part of a domestic criminal investigation.  In re Search Warrant No. 16-960-M-01 to Google (E.D. Pa. Feb. 3, 2017).  This ruling comes on the heels of the Second Circuit’s decision in Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016) (denied rehearing on January 24, 2017), which reached an opposite decision and held that Microsoft could not be forced to turn over user data stored on a server located in Ireland.  (For more background, see Second Circuit Microsoft Ruling: A Plea for Congressional Action (August 8, 2016)).

The conflict involves whether or not a search warrant under the Stored Communications Act of 1986 (“SCA”) may be used to access data stored at least in part on servers located in foreign countries.  In parting ways with the Second Circuit, Magistrate Judge Rueter reasoned that the actual privacy infringement takes place where the United States government reviews the information (i.e. at its domestic offices), not where the information is electronically transferred from (i.e. abroad).  Therefore, these search warrants “involve a permissible domestic application of the SCA.”  In re Search Warrant No. 16-960-M-01 to Google (E.D. Pa. Feb. 3, 2017).

Although the Google and Microsoft cases can be readily distinguished on their facts (most notably, Google’s position that it cannot identify where in particular the data is located as well as the fact that the Google customer in question was known to be in the U.S.), the Google ruling adds more drama to an already tense point of law, and could have international policy implications in further shaping global views of the operation of US privacy law and law enforcement.  The implications are not lost on the tech community, as several internet and technology companies have filed amicus briefs in support of Google on March 10, 2017.  Many eyes also are focused on Congress, wondering if there may be a legislative solution to the disputed scope of the SCA, or on a future Supreme Court case, as this case has the potential to create a critical circuit split with profound implications for law enforcement and the technology sector.