Federal Judge Upholds Magistrate's Ruling, Says Google Must Hand Over Data From Overseas Servers

Earlier this year, a Pennsylvania magistrate judge decided Google needed to turn over data to US law enforcement despite it being housed (possibly temporarily) in overseas servers. The overseas housing was simply part of Google's data flow, which routes communications around the world for efficiency, rather than to keep them out of local governments' hands.

This contradicted an earlier decision by the 2nd Circuit Appeals Court, which ruled Microsoft did not have to turn over data held in overseas servers in response to a US search warrant. The fact that Google does not explicitly hold certain data in certain servers was key to this decision. The conclusion the magistrate reached was no seizure of the data took place until Google stopped the data flow and gathered it up locally. That decision seemed to rewrite the definition of the word "seizure," as the warrant compelled Google to grab the data and compile it domestically. Stopping the flow of data traffic to grab stuff certainly sounds like Google is "seizing" it -- and it's only doing so because the government has ordered it to.

Google asked for a judicial review of the magistrate's decision. Unfortunately, the Pennsylvania federal judge one step up from the magistrate has upheld the magistrate's order. (h/t Brad Heath) From the memorandum [PDF]:

Although Google and each of the account holders in question are based in the United States, Google contends it is the physical location of the data to be retrieved-which Google, not the account holder, controls, and which Google can change at any time for its own business purposes-that determines whether the statute is being applied extraterritorially. Because this Court agrees with the government that it is the location of the provider and where it will disclose the data that matter in the extraterritoriality analysis, and because Google can retrieve and produce the outstanding data only in the United States, the Court agrees with the Magistrate Judge's conclusion that fully enforcing the warrants as to the accounts in question constitutes a permissible domestic application of the SCA. The Order granting the government's motions to compel will therefore be affirmed.

The memorandum runs several pages, but basically reiterates the magistrate's findings. The warrant is lawful under the Stored Communications Act and provides for the seizure of the data requested. That the data is located extraterritorially would normally pose a problem, but Google's overseas data stores are only filled for Google's convenience, rather than being a place where any of the sought data resides permanently. This decision basically lays it all out for US service providers, stating that because warrants are served to their domestic offices, data located anywhere in the world is within reach of a US search warrant.

The court gets around the contradictory nature of its conclusion by quoting heavily from the dissenting judges in the 2nd Circuit Appeals Court decision.

Although the panel decision in the Microsoft case was unanimous, the decision drew vigorous opposition from other judges of the Second Circuit when the case came before the full court on the government's petition for rehearing en banc. The petition was denied by an equally divided court, but the denial generated four separate dissents by judges who agreed that enforcing an SCA warrant to require a domestic service provider to disclose information in the provider's possession, which the provider can access within the United States, constitutes a domestic application of the statute's warrant provision, regardless of where the provider has elected to store the information. See Microsoft Reh'g, 855 F.3d at 61-62 (Jacobs, J., dissenting); id. at 66-68 (Cabranes, J., dissenting); id. at 70-73 (Raggi, J., dissenting); id. at 75-76 (Droney, J., dissenting). The Microsoft court's analysis has also been rejected by every magistrate judge and district court that has considered the issue to date, including the Magistrate Judge in this case.

However, there's nothing in the memorandum that even hints at the dangerous precedent the court is helping set. The Pennsylvania court views the Second Circuit decision as an anomaly and will afford it zero respect when discussing challenged warrants. Presumably, ignoring an outlier will continue through any suppression hearing once this case moves forward. Google will certainly appeal this decision, but the absence of favorable rulings from within this circuit (Third Circuit) likely make this non-starter. As it stands now, one circuit in the nation holds the government to the letter of the law when issuing SCA warrants. For everyone else, it's still up in the air, with more courts likely to side with the 2nd Circuit dissent, which will result in more US law enforcement demanding data from overseas simply because they have a US entity to hand the warrant to.