In re Contents & Records Relating to the Google Accounts
In re Contents & Records Relating to the Google Accounts
Opinion of the Court
This matter is before the Court on the Government's Motion for Reconsideration of what the Government has deemed a denial of an application for a search warrant.
I.
On February 12, 2018, an Assistant United States Attorney and a Homeland Security Investigations Task Force Officer presented an application for a search warrant to a Magistrate Judge in the United States District Court for the Southern District of Ohio, Eastern Division. The search warrant application sought electronic communications and records related to a defendant's Google email accounts, pursuant to
Upon review of the search warrant and accompanying documents, the Magistrate Judge found probable cause to issue the warrant. This Court, reviewing the warrant request and supporting affidavit, also finds probable cause exists. Before signing, the Magistrate Judge inquired as to why an Addendum, which had heretofore been submitted with other similar applications, was not attached. The Addendum required Google to preserve, but not provide, "responsive information stored solely outside of the United States."
The Government objects to the Addendum, deeming the request a denial of its application for a search warrant, and asks the Court to find the decision clearly erroneous or contrary to law. See
This Court has serious doubt as to whether there is an order of the Magistrate Judge capable of review by the undersigned. No written order has been issued; no briefing has been considered by the Magistrate Judge.
Even assuming the existence of a reviewable order, this Court cannot find that the Magistrate Judge's action was clearly erroneous or contrary to law. As described infra , the only federal appellate court to address whether the SCA authorized a warrant to obtain electronic records in another country has found that the statute does not extend beyond the United States. See In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporations ,
II.
Given the unique circumstances of these issues, which are certainly capable of repetition, and the fact that major service providers subject to orders under the SCA have fully explored all legal arguments in filings before the Supreme Court and in Microsoft I, II , all of which this Court has reviewed, the undersigned finds there is substantial jurisprudential value in deciding the matter and providing a modicum of certainty, prior to a final decision of the Supreme Court. Applications for warrants under the SCA are made with great frequency, as email communications replace regular mail. In many cases, simply waiting for a decision from a pending Supreme Court case is prudent. The issue in this case implicates numerous other investigations, many of which are no doubt time sensitive.
The SCA was enacted as Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"). The ECPA regulates government access to wire and electronic communications.
*887The United States petitioned the Second Circuit for a rehearing en banc in Microsoft II. The entire Second Circuit split evenly on the request, which left the panel decision intact. Microsoft II ,
No other circuit, including the Sixth Circuit, has addressed this issue. The Second Circuit's decision in Microsoft I has been rejected by the numerous other courts considering the issue, including a sister district court from this circuit. See, e.g. , United States v. Google, Inc. , Case No. 17-mc-7 (W.D. Term. Nov. 3, 2017) (sealed) (determining relevant conduct within Section 2703's focus, occurs in the United States); In re Info. Associated with @gmail.com , Case No. 16-mj-757,
The Second Circuit held in Microsoft I that the SCA lacks extraterritorial reach, and that there is a presumption against applying a federal law beyond the territorial boundaries of the United States. See Morrison v. National Australia Bank Ltd. ,
Extraterritoriality need not be fussed over when the information sought is already within the grasp of a domestic entity served with a warrant. The warrant in this case can reach what it seeks because the warrant was served on Microsoft, and Microsoft has access to the information sought. It need only touch some keys in Redmond, Washington. If I can access my emails from my phone, then in an important sense my emails are in my pocket, notwithstanding where my provider keeps its servers.
*888In contrast, the Microsoft I court engaged in an analysis of extraterritoriality and determined that the SCA's focus lies on protecting user privacy. This "determination was made under the second part of the extraterritoriality analysis set forth as a canon of construction in Morrison and recently developed further in RJR Nabisco, Inc. v. European Community , --- U.S. ----,
The decision then shifted to the focus of the SCA. "At step two, a court must 'determine whether the case involves a domestic application of the statute,' which 'we do ... by looking to the statute's 'focus' and by identifying where "the conduct relevant to the statute's focus occurred." ' "
Even if the "focus" of the SCA is user privacy, a plain reading of the statute makes clear that the conduct relevant to the SCA's "focus," and which the SCA seeks to regulate, is a provider's disclosure or non-disclosure of emails to third parties, not a provider's access to a customer's data. Here, Microsoft's disclosure of emails to the government would take place at its headquarters in the United States. Therefore, had the panel majority correctly identified the conduct relevant to the SCA's "privacy focus," it would have concluded that the warrant at issue was a domestic application of the SCA.
....
Put another way, Microsoft did not need a warrant to take possession of the emails stored in Ireland. Nor did it need a warrant to move the emails from Ireland to the United States. It already had possession of, and lawful access to, the targeted emails from its office in Redmond, Washington. Only Microsoft's disclosure of the emails to the government would have been unlawful under the SCA absent a warrant.
Judge Droney, also dissenting from the denial of a rehearing en banc in Microsoft II , noted that the Microsoft I privacy concerns were unpersuasive because "Congress addressed those concerns through the warrant requirement in the SCA."
That requirement provides protection for individual privacy interests by requiring the Government to make an adequate showing of probable cause of evidence of a crime or property used to commit a crime to a judge-a well-established standard of Fourth Amendment protection. Seeid. ; Fed. R. Crim. P. 41(c) ; U.S. Const. amend. IV ("[N]o warrants shall issue, but upon probable cause."); Camara v. Mun. Court of City & Cnty. of S.F. ,387 U.S. 523 , 528,87 S.Ct. 1727 ,18 L.Ed.2d 930 (1967) (explaining that purpose of Fourth Amendment's probable cause requirement "is to safeguard the privacy and security of *889individuals against arbitrary invasions by governmental officials").
....
It makes no difference that Microsoft has chosen to store some electronic communications in other countries. That decision is based on its own business considerations, not privacy concerns for its customers. Microsoft has possession and immediate access to those emails regardless of where it chose to store them. Thus, the second prong of the RJR Nabisco test is satisfied here: the disclosure of the electronic communications occurs in the United States, when Microsoft honors the warrant by disclosing those communications.
Id. at 75-76 (parallel citations omitted).
The final consideration relates to the effects of the decision in Microsoft I. Judge Cabranes noted in dissent in Microsoft II that "regardless of whether they are controlled by a domestic service provider and are accessible from within the United States ... the government can 'never obtain a warrant' that would require a service provider to turn over emails stored in servers located outside the United States, regardless of how "certain [the government] may be that [emails] contain evidence of criminal activity, and even if that criminal activity is a terrorist plot." " Id. at 63-64.
Second, Microsoft I "has created a roadmap for even an unsophisticated person to use email to facilitate criminal activity while avoiding detection by law enforcement," because if a customer indicates he or she resides abroad, emails are then stored abroad. Id. at 64.
Third, and last, Microsoft I
... has already led major service providers to reduce significantly their cooperation with law enforcement. The panel majority held that the physical location of a server containing a customer's emails determines whether an SCA warrant seeking the disclosure of those emails is an extraterritorial application of the SCA. However, electronic data storage is more complex and haphazard than the panel majority's holding assumes. Many service providers regularly "store different pieces of information for a single customer account in various datacenters at the same time, and routinely move data around based on their own internal business practices." Still other providers are unable to determine "where particular data is stored or whether it is stored outside the United States." Consequently, in an effort to apply the panel majority's confected holding to the technological realities of electronic data storage, major service providers are adopting.
Google will now disclose "only those portions of customer accounts stored in the United States at the moment the warrant is served." Google's policy is particularly troubling because "the only [Google] employees who can access the entirety of a customer's account, including those portions momentarily stored overseas, are located in the United States." As a result, law enforcement might never be able obtain data stored in Google servers abroad, even with the help of [a Mutual Legal Assistance Treaty].
Yahoo! has advised law enforcement that it "will not even preserve data located outside the United States in response to a [s]ection 2703 request." This policy, as the government points out in its En Banc Petition, creates "a risk that data will be moved or deleted before the United States can seek assistance from *890a foreign jurisdiction, much less actually serve a warrant and secure the data."
Id. at 64-65.
Thus, reading the SCA to prohibit the disclosure of foreign-stored data would undermine an important tool for law enforcement and introduce arbitrariness to the statutory scheme. Google's network automatically moves some of its users' data-including emails that contain attachments, and the attachments themselves-around the world, at various times, depending on the workings of a computer algorithm aimed at creating network efficiency. See In re Search of Information Associated with [Redacted]@gmail.com That Is Stored at Premises Controlled by Google, Inc. ,
This Court notes its agreement with Judge Droney, who commented that Microsoft I "undertook the daunting task of attempting to apply a statute enacted decades ago to present technology." Id. at 74. (Droney J., dissenting).
For example, who knew in 1986 that electronic mail-"email"-would become such a primary means of communication that its commercial providers would have millions of servers across the world to store and manage those communications? Or that the recipient of the warrant here-Microsoft-would itself manage over one million server computers, located in over forty countries, used by over one billion customers? Such developments in electronic communications could not have been anticipated at the time of the statute's adoption. Indeed, the task of applying statutes and rules from many years ago to unanticipated advances in technology has been undertaken in other contexts with much difficulty. See, e.g. , United States v. Ganias ,824 F.3d 199 , 219-21 (2d Cir. 2016) (en banc ).
Id. at 74-75.
A thirty-year old statute still governs the authority of the federal courts to order production of the electronic records in criminal investigations. While much of the law involves reasoning by analogy, the pace and extent of technological changes makes such tasks much harder. The Court concludes this opinion with one final stab at applying traditional legal principles to an internet driven era.
Before and after the advent of the internet, no federal court could order a seizure or production of property or paper beyond the territorial limits of the United States. Yet, if a bank in Columbus, Ohio held copies of records, the originals of which were in Ireland, no one would seriously contend that the copies in Columbus were beyond the reach of a federal warrant. Emails of an American citizen stored by an American corporation located within the territorial jurisdiction of the United States are no different. What is sought can be obtained within the United States by an American corporation. No federal agent will ever set foot in another country in order to comply with the warrant herein sought.
*891III.
Based on the foregoing, the Court DENIES the Government's Motion for Reconsideration. Due to the nature of the issues raised herein, the Court it withdraws the order of reference under
IT IS SO ORDERED.
As described herein, this Court disagrees with the Government's characterization that the application was denied.
The proposed Addendum, attached to the Government's motion, would have required Google to notify the United States Attorney of the location of information stored outside of the country. Google could then move to quash or the Government could move to compel. In either case, the matter would have been briefed and formally ruled upon.
Reference
- Full Case Name
- In the MATTER OF the SEARCH OF: CONTENTS AND RECORDS RELATING TO the GOOGLE ACCOUNTS (Google Plus, Gmail, Google Drive) Related to the e-mail addresses: which are stored at premises controlled by Google, Inc., 1600 Amphitheatre Parkway, Mountain View, AC 94043
- Cited By
- 1 case
- Status
- Published