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In re Search of Content that is stored at Premises Controlled by Google

United States District Court, N.D. California, San Francisco Division

April 25, 2017

IN THE MATTER OF THE SEARCH OF CONTENT THAT IS STORED AT PREMISES CONTROLLED BY GOOGLE

          AMENDED ORDER [RE: ECF NO. 3]

          LAUREL BEELER United States Magistrate Judge.

         INTRODUCTION

         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.[1] 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”).[2] 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.[3] The remaining dispute is whether Google 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.[4] See In the Matter of a Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), reh'g denied en banc, No. 14-2985, 2017 WL 362765 (2d Cir. Jan. 24, 2017). The government counters that the SCA authorizes production of data retrievable from the United States.[5]

         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.

         STATEMENT

         1. Facts

         Google - headquartered in the United States and incorporated in Delaware - has its principal place of business in California.[6] It offers its users different online and communication services, including email.[7] It stores its data in different locations, some in the United States and some outside the United States.[8] User files may be broken into component parts, and different parts of a single file may be stored in different locations (including different countries).[9] Google operates what the parties term a “state-of-the-art intelligent network.”[10] “[T]o optimize performance, reliability, and other efficiencies, ” the network moves data - including data responsive to the search warrant - automatically from one location to another (including different countries).[11] The data's location can change during the time period from when legal process (such as a search warrant) is authorized and when it is served.[12]

         Google has a legal team in the United States - the Legal Investigations Support team - that produces information in response to search warrants and other requests for legal process.[13] All Google personnel on the team are in the United States, and only Google personnel on the team are authorized to access and produce the content of communications.[14]

         The search warrant - Dated: June 30, 2016 - authorized production of information from specific Google email accounts regarding subscriber information, evidence of specified crimes, and information about the account holders' true identities, locations, and assets.[15] Google produced the following information. One, for all Google accounts (except for one that did not exist), Google produced records “confirmed to be stored in the United States, ” including subscriber information, Google Contacts, files, location history, search history, Maps, and Photos metadata.[16] Two, for all but two accounts, Google “produced email content and header information” but “did not produce any attachments to those emails because they were not confirmed to be stored in the United States.”[17] Three, for the remaining two accounts, Google “did not produce any Gmail content, non-content[, ] or attachments” because “all such information for those accounts was stored exclusively outside of the United States.”[18] As of November 18, 2016, Google “asserts that it had disclosed all responsive information” (as described in this paragraph) “that Google had confirmed at the time to be stored in the United States.”[19]

         2. Procedural History

         Google moved to quash or amend the search warrant; the government opposed the motion.[20]The court held a hearing on February 21, 2017, [21] and directed (1) the parties to submit a joint stipulation of undisputed facts relevant to the extraterritoriality analysis and (2) Google to provide information about its current ability to identify whether information is stored in the United States, given its representation at the hearing that it was finalizing a tool to identify whether or not content was stored in the United States.[22] The parties provided additional information on March 13, 14, and 16.[23]

         ANALYSIS

         The warrant here issued under 18 U.S.C. § 2703(a), which is part of the Stored Communications Act (“SCA”). Section 2703 sets forth the legal processes that the government must use to require service providers such as Google to produce customer communications and records. For example, only an administrative subpoena is needed for basic subscriber information and transactional information. 18 U.S.C. § 2703(c)(2). The government can obtain a court order without notice to the customer for other non-content records if it “offers specific and articulable facts showing that there are reasonable grounds” that the records “are relevant and material to an ongoing criminal investigation.” Id. § 2703(d). Other user content can be obtained by subpoena or a 2703(d) order with notice to the subscriber or customer. Id. § 2703(b)(1)(A). To obtain stored communications, the government must obtain a “warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.” Id. § 2703(a). The SCA defines a “court of competent jurisdiction” as (1) a U.S. district or appeals court that has jurisdiction over an offense being investigated, is in the service provider's district, or is acting on a request for foreign assistance under 18 U.S.C. § 3512, or (2) a state court of general criminal jurisdiction authorized by state law to issue search warrants. Id. § 2711(3). It is otherwise silent about its territorial reach or the reach of its warrant procedures.

         The procedures for obtaining a search warrant are in Federal Rule of Criminal Procedure 41 - titled “Search and Seizure.” Rule 41(b)'s venue provision limits its territorial reach to federal districts, generally providing for warrants for persons or property in the issuing court's district and sometimes allowing warrants for persons or property outside the district (but still in a federal district) in specified contexts, such as (1) the persons and property were in the district when the warrant issued, (2) investigations involving domestic or international terrorism, and (3) tracking devices installed in the district. Fed. R. Crim. P. 41(b)(1)-(4). Rule 41(b)(5) allows the issuance of a warrant for property outside the jurisdiction of any state or district but in (1) “a United States territory, possession, or commonwealth, ” (2) “a United States diplomatic or consular mission in a foreign state, ” or (3) a residence “owned or leased by the United States and used by United States personnel assigned to the United States diplomatic or consular mission in a foreign state.” Rule 41(b)(6) allows warrants to issue in one district for searches of computer and media in other districts under certain circumstances.

         The SCA does not specify whether it or its warrant provisions apply outside the United States. The court thus presumes that they do not under the canon of statutory construction known as the presumption against extraterritoriality. RJR Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090, 2100 (2016); Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247, 255 (2010). ÔÇťAbsent clearly expressed congressional intent to the contrary, federal laws will ...


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