On February 3, 2017, the Pennsylvania US District Court granted the Government’s motions to compel Google to comply with search warrants, holding that this was not an extraterritorial application of the stored Communications Act 18 U.S.C. (“SCA“).
The District Court had issued two search warrants, pursuant to section 2703 of the SCA §§ 2701 et seq., which required Google to disclose to agents of the FBI certain electronic data held in the accounts of targets in two separate criminal investigations. There was probable cause that the Google accounts were being used to commit a fraud and a theft under federal law.
The account holders resided in the US, the crimes they were suspected of committing occurred solely in the US, and the electronic data at issue was exchanged between persons located in the US.
Google partially complied with the warrants producing data stored on its servers located in the US but refused to produce other data. Relying upon Microsoft Corp. v. United States, Google argued that it was not required to produce electronic records stored outside the US.
The two cases were consolidated. Both parties highlighted how important the issues raised by Microsoft were.
Google explained that each year it receives thousands of requests for disclosure of user data in connection with criminal matters, while the Government emphasized the critical importance of obtaining that data.
In addressing the issue the court noticed how the present dispute – like in Microsoft – centered on the nature of the warrants issued under the SCA. Basically the question was “whether the Government may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA”. The court reached a different conclusion than in Microsoft holding that compelling disclosure to Google “does not constitute an unlawful extraterritorial application of the Act”.
Electronically transferring data from a server in a foreign country to Google’s data center in California does not amount to a “seizure” because there is no meaningful interference with the account holder’s possessory interest in the user data. Indeed, according to the Stipulation entered into by Google and the Government, Google regularly transfers user data from one data center to another without the customer’s knowledge. Such transfers do not interfere with the customer’s access or possessory interest in the user data.
Even if there was an interference with the owner’s control over his information, it would be minimal and temporary.
In addition, the Court highlighted how the conduct relevant to the SCA’s focus (the invasions of privacy) would occur in the US “when the FBI reviews the copies of the requested data”.
According to Reuters, Alphabet Inc (GOOGL.O) plans to appeal the decision.
For more information on seizure of electronic communications, contact Francesca Giannoni-Crystal