In re Search Warrant Issued to Google, Inc.

264 F.Supp.3d 1268

IN RE SEARCH WARRANT ISSUED TO GOOGLE, INC.

CASE NO. 5:17–mj–532–HNJ

United States District Court, N.D. Alabama, Northeastern Division.

Signed September 1, 2017

MEMORANDUM OPINION AND ORDER

HERMAN N. JOHNSON, JR., UNITED STATES MAGISTRATE JUDGE

The United States served on Google, Inc., a search warrant issued by the Court pursuant to the Stored Communications Act, 18 U.S.C. § 2703 et seq. Google complied with the search warrant as to data stored in the United States, yet it refused to disclose responsive data and information stored on a server located on foreign territory. According to Google, the SCA's provisions do not apply extraterritorially, and disclosing the data stored on foreign territory would constitute an impermissible, extraterritorial application of the statute. The Government filed a motion to compel Google to disclose the data stored on foreign territory. For the reasons set forth below, the Court GRANTS the Government's Motion because Google's disclosure of the data would constitute a domestic application of the SCA.¹

I. BACKGROUND

Congress enacted the Stored Communications Act as Title II of the Electronic Communications Privacy Act of 1986. The other provisions of the ECPA updated prior statutes governing wiretaps, pen registers, and other aspects of electronic communication interception, see 18 U.S.C. §§ 2510et al. , while the SCA aims to protect privacy by regulating access to stored communications. 18 U.S.C. § 2601 et seq.² Section 2701 of the SCA proscribes unauthorized access to data stored by electronics communications providers, and § 2702 prohibits electronics communications providers from disclosing stored communications data except in certain circumstances. 18 U.S.C. §§ 2701, 2702.

The dispute at bar concerns § 2703, which regulates government access to stored communications. As other courts have described, the SCA controls government access to stored communications in an ascending, or pyramidal, structure of protection. See Matter of Warrant to Search a Certain E–Mail Account Controlled & Maintained by Microsoft Corp. , 829 F.3d 197, 207 (2d Cir. 2016) ( Microsoft I ), rehearing en banc denied , 855 F.3d 53 (2d Cir. 2017) ( Microsoft II ); In re Search Warrant to Google, Inc. , No. 16-4116, 2017 WL 2985391, at *3 (D.N.J. July 10, 2017). Administrative and investigatory subpoenas permit government access to basic subscriber and transactional data. 18 U.S.C. § 2703(c)(2). A court may order government access to other non-content information upon demonstration of "specific and articulable facts showing ... reasonable grounds to believe that the contents or records ... are relevant and material to an ongoing criminal investigation." Id. at §§ 2703(c), (d). Subpoenas give governmental access to the content of private communications, so long as the government gives notice to the customer or subscriber. Id. at § 2703(b)(1)(B). Upon establishing probable cause, a court may issue a warrant compelling government access to the previously-described stored communications, including the content of such communications such as emails, social media, etc. Id. at § 2703(a). The SCA does not require the Government to provide notice to a warrant's target. Id. at § 2703(b).

In the case at bar, the Court issued a warrant pursuant to § 2703 commanding Google to disclose the information and content associated with several email accounts. In response, Google provided the government with data stored on servers located in the United States, but Google declined to produce responsive information stored on servers located in Dublin, Ireland. Google argues that the SCA does not apply extraterritorially, and thus the issued warrant does not apply to communications stored in areas outside of U.S. control.

Google's position rests upon the Second Circuit's decision in Microsoft I. In Microsoft I , the Second Circuit held that the government's warrant at issue therein could not compel Microsoft to produce communications and information stored overseas because the SCA does not apply extraterritorially. 829 F.3d at 222. On rehearing en banc , the Second Circuit split four-to-four on reversing the panel decision. Microsoft II , 855 F.3d at 53. After the Second Circuit's dispositions, several courts disagreed with Microsoft and ruled that various providers, including Google, must produce information stored in foreign territories in response to warrants properly-issued under the SCA. See In re Search Warrant to Google, Inc. , No. 16-4116, 2017 WL 2985391 (D.N.J. July 10, 2017) ; In re Two Email Accounts at Google, Inc. , Case No. 17-MJ-1235, 2017 WL 706307 (E.D.Wis. Feb. 21, 2017), mot. amend warrant denied , No. 17-MJ-1235, 2017 WL 2838156 (E.D.Wis. June 30, 2017) ; In the Matter of the Search of Info. Associated with [Redacted]@Gmail.com that Is Stored at Premises Controlled by Google, Inc. , Case No. 16–mj–757, ––– F.Supp.3d ––––, 2017 WL 2480752 (D.D.C. June 2, 2017) ; In the Matter of Search of Content that Is Stored at Premises Controlled by Google , Case No. 16-mc-80263-LB, 2017 WL 1487625 (N.D.Cal. Apr. 25, 2017) ; In the Matter of the Search of Premises Located at [redacted]@yahoo.com, Stored at Premises Owned, Maintained, Controlled, and Operated by Yahoo, Inc. , No. 6:17–mj–1238 (M.D.Fla. Apr. 7, 2017); In re Search Warrant No. 16–960–M–01 to Google , 232 F.Supp.3d 708 (E.D.Pa. 2017).

After the parties at bar failed to resolve their dispute, the resulting impasse led to the government filing the motion to compel.

II. ANALYSIS

As the following analysis portrays, the SCA does not apply extraterritorially because the statute does not contain any indication that Congress intended foreign application of the statute's provisions. However, the SCA's "focus" centers on access to private communications, and in particular government access to such data via provider disclosure on United States territory. Because Google's disclosure will occur on United States territory, the government's warrant entails a domestic application of the SCA, not an extraterritorial application.

The Supreme Court established a two-part framework in considering a statute's extraterritorial application. As an initial matter, there exists a presumption against extraterritoriality: "[a]bsent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application." Morrison v. National Australia Bank Ltd , 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). The inquiry ensues "whether Congress has affirmatively and unmistakably instructed that [a] statute will do so." Id. at 261, 130 S.Ct. 2869. "When a statute gives no clear indication of an extraterritorial application, it has none." Id. at 255, 130 S.Ct. 2869.

Therefore, the first part of the framework determines "whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially." RJR Nabisco, Inc. v. European Cmty. , ––– U.S. ––––, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). If the first step does not dislodge the presumption against extraterritoriality, then the framework's second step discerns "whether the case involves a domestic application of the statute" by "looking to the statute's ‘focus.’ " Id. "If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory." Id.

A. The SCA Does Not Apply Extraterritorially

As for the first step in the framework, the court will not depart from the largely unanimous finding by the other courts considering this issue that the SCA does not apply extraterritorially.³ The government argues that § 2703 contemplates provision of a hybrid warrant-subpoena vehicle that grants courts in personam authority over recipients, and this in personam power elides any territorial limitations upon the SCA. Google responds that § 2703 adopts the restrictions pertinent to a traditional warrant; as traditional warrants purportedly afford only in rem authority over places and things, Congress limited SCA warrants territorially by definition. Regardless of the parties' dispute over nomenclature, the SCA fosters no provisions rebutting the presumption against territoriality.

Section 2703 expressly requires warrants for the production envisioned here, not subpoenas. The government seeks the content of emails and other communications stored by Google, and as described previously, the SCA accords the warrant power for access to such content. Therefore, the government falters by referring to cases examining the scope of subpoena power—rather than the scope of authority pursuant to warrants—issued in other statutory contexts that require production of documents stored in foreign locations.

Indeed, that subpoenas may apply extraterritorially in other statutory contexts does not indicate such devices—or warrant-subpoena hybrids—apply extraterritorially under the SCA. That is, to the extent some forms of subpoenas subject their recipients to a court's in personam authority, Congress may still limit courts' exercise of such personal jurisdiction in other contexts. C.f., Republic of Panama v. BCCI Holdings (Luxembourg) S.A. , 119 F.3d 935, 942, 946–47 (11th Cir. 1997) (pursuant to the Fifth Amendment's Due Process Clause, federal courts exercise personal jurisdiction over any defendant with sufficient contacts with the United States, but Congress may limit such jurisdiction by statutory authorization).⁴ That Congress compels foreign access in one statutory context granting in personam jurisdiction does not demonstrate the same authority applies in other contexts, including the SCA.

However, Google's...