[Orin Kerr] Google must turn over foreign-stored e-mails pursuant to a warrant, court rules

A federal magistrate judge handed down an opinion this afternoon, In re Search Warrant No. 16-960-M-01 to Google, ordering Google to comply with a search warrant to produce foreign-stored e-mails. The magistrate judge disagrees with the Second Circuit’s Microsoft-Ireland warrant case, recently denied rehearing by an evenly-divided court. Although the new decision is only a single opinion by a single Magistrate Judge, the decision shows that the Department of Justice is asking judges outside the Second Circuit to reject the Second Circuit’s ruling — and that at least one judge has agreed.

The new case involves two routine Stored Communications Act warrants served on Google for the contents of e-mails. Google responded with the e-mails that it knows were stored inside the United States, but it refused to turn over e-mails that could be outside the United States. Because Google breaks up its e-mails and the network might distribute them anywhere in the world, Google can’t know where many e-mails are located and declined to produce them under the Second Circuit’s Microsoft case.

The government moved to compel Google to produce all of the e-mails within the scope of the warrant. Magistrate Judge Thomas J. Rueter ruled that Google has to comply with the warrant in full because “the conduct relevant to the SCA’s focus will occur in the United States” even for the data that is retrieved from outside the United States:

That is, the invasions of privacy will occur in the United States; the searches of the electronic data disclosed by Google pursuant to the warrants will occur in the United States when the FBI reviews the copies of the requested data in Pennsylvania. These cases, therefore, involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad.

The court reasoned that when a network provider is ordered to retrieve information from abroad, that copying of information abroad and sending back to the United States does not count as a Fourth Amendment “search” or “seizure” outside the United States:

This court agrees with the Second Circuit’s reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit’s analysis regarding the location of the seizure and the invasion of privacy. The crux of the issue before the court is as follows: assuming the focus of the Act is on privacy concerns, where do the invasions of privacy take place? To make that determination, the court must analyze where the seizures, if any, occur and where the searches of user data take place. This requires the court to examine relevant Fourth Amendment precedent.

According to the court, there was no seizure abroad:

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 the transfer interferes with the account owner’s control over his information, this interference is de minimis and temporary. See Jacobsen, 466 U.S. at 125-26 (holding that permanent destruction of small portion of property for testing a de minimis intrusion on possessory interest); United States v. Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) (“[N]o seizure occurs if a package is detained in a manner that does not significantly interfere with its timely delivery in the normal course of business.”), cert. denied, 552 U.S. 1144 (2008).

Further, there was no search abroad:

When Google produces the electronic data in accordance with the search warrants and the Government views it, the actual invasion of the account holders’ privacy- the searches – will occur in the United States. Even though the retrieval of the electronic data by Google from its multiple data centers abroad has the potential for an invasion of privacy, the actual infringement of privacy occurs at the time of disclosure in the United States.

Because the search and seizure occurred in the United States, not abroad, the relevant privacy invasion was domestic and a domestic warrant could order it.

The court also argued that this outcome was needed to avoid absurd results. Because Google does no