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Judge Splits With 2nd Cir., Orders Google to Produce Foreign-Stored Emails

By Casey C. Sullivan, Esq. | Last updated on

Last July, the Second Circuit ruled that the federal government could not force Microsoft to turn over emails stored on a foreign server in Ireland. Two weeks ago, a divided Second Circuit declined to reconsider that ruling en banc, allowing the landmark decision to stand.

But the Second Circuit's logic doesn't seem to have convinced U.S. Magistrate Judge Thomas Rueter. On Friday, Rueter ruled that Google must turn over foreign-stored electronic data to the FBI, pursuant to two search warrants issued under the Stored Communications Act, the same act the Second Circuit found did not have extraterritorial reach.

Two Different Views of the Stored Communications Act

In the Microsoft case before the Second Circuit, the government issued a warrant for emails in Microsoft's control, as part of its investigation into a drug trafficking case. But those emails were stored in Ireland and, Microsoft argued, the Stored Communications Act's warrant provisions don't allow the government to see information stored abroad. They convinced the Second Circuit, who ruled that the provisions had no extraterritorial reach:

The focus of those provisions is protection of a user's privacy interests. Accordingly, the SCA does not authorize a US court to issue and enforce an SCA warrant against a United States-based service provider for the contents of a customer's electronic communications stored on servers located outside the United States.

An equally-divided Second Circuit declined to rehear the case, an outcome that lead to four stinging dissents.

In the Google case, the FBI sought emails stored abroad under the same warrant provisions. Google produced its US-stored emails, but, citing the Second Circuit, declined to turn over emails that could have been stored outside the country.

Magistrate Judge Rueter, of the Eastern District of Pennsylvania, sided with the FBI. Despite the data being pulled from abroad, "the conduct relevant to the SCA's focus will occur in the United States," Rueter ruled. Any invasion of privacy that would occur would occur in the United States, "when the FBI reviews the copies of the requested data," the court concluded. "These cases, therefore involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad."

If Microsoft, Why Not Google?

There is a slight difference between the facts in the Microsoft and Google cases. In Microsoft's case, the company knew the emails were stored in Dublin. In Google's, Google only suspected that the emails are stored outside the U.S. Indeed, since Google's system breaks the emails into parts, part of an email could be stored domestically, while another is stored abroad. As a result, Google argued, it can't determine the location of much data and only produced those emails that it could confirm were stored in the U.S.

That, the court noted, makes Google's case "easily distinguishable from the facts in Microsoft." Unlike with Microsoft, the court could not assume that "messages stored in the 'cloud' have a discernible physical location."

Google has vowed to appeal the ruling. Time will tell if the Third Circuit sides with the trial judge or goes with the Second Circuit.

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