Blurring The Line Between Foreign and Domestic: The Expansion of Search Warrant Powers Overseas

5/10/2017 Articles

A dispute in California federal court over whether Google must turn over documents stored overseas in response to a search warrant may have major implications for white collar practitioners and their clients. Last week Google asked a California federal judge to review an order by Magistrate Judge Laurel Beeler that required the company to produce content stored outside the United States in response to a warrant. U.S. District Judge William Alsup will hear Google’s motion for de novo review of the order on June 22. In the order at issue, Judge Beeler denied Google’s motion to quash a warrant issued pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703. The SCA, in part, requires the disclosure of customer communications or records by internet service providers pursuant to a warrant. The warrant sought documents related to specific Google email accounts, including subscriber information, evidence of specified crimes, and information about the account holders’ true identities, locations, and assets. Google produced information it stored domestically, but argued that the warrant could not reach information stored abroad. Google argued that its legal team in the United States were the only personnel authorized to access and produce the communications, which could be accessed from within the United States. Matter of Search of Content that is Stored at Premises Controlled by Google, No. 16-MC-80263-LB, 2017 WL 1487625, at *2 (N.D. Cal. Apr. 25, 2017).

Despite acknowledging that Rule 41 of the Federal Rules of Criminal Procedure regarding search warrants limits their territorial reach to federal districts, that the SCA does not specify whether its warrant provision applies outside the United States, and that there is a presumption against the SCA’s extraterritorial application, the Court held that Google must “produce all content responsive to the search warrant that is retrievable from the United States, regardless of the data’s actual location.” Id. at *1, 4. Judge Beeler reasoned that the “disclosure is a domestic application of the SCA,” as the “conduct relevant to the focus—and what the SCA seeks to regulate—is disclosure of the data in the service provider’s possession.” Because Google is located in the district and subject to the court’s jurisdiction, and the warrant was directed at “the only place where [Google] can access and deliver the information that the government seeks,” the warrant could reach documents stored overseas. Id. at *4. In ordering so, Judge Beeler followed the dissenters in the Second Circuit’s decision, Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 203 (2d Cir. 2016).

Google is now relying on the Microsoft case to argue that Judge Beeler’s order was an unlawful extraterritorial application of the Stored Communications Act. In the Microsoft case, the Second Circuit held that the government could not compel production of Microsoft’s email account data stored in Dublin, Ireland. The Second Circuit reasoned that “[a]s the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States” and that the Stored Communications Act’s legislative history “supports [the] conclusion that Congress intended to invoke the term ‘warrant’ with all of its traditional, domestic connotations.” Id. at 212-13. Thus, even though Microsoft admitted that it could “collect” the information stored in Ireland from certain of its U.S. offices and bring that data into the U.S., forcing it to do so would be unlawful. Id. at 203, 222. The government plans to appeal the Second Circuit decision to the Supreme Court.

For white collar practitioners, this circuit split is one to watch. The notion that warrants traditionally carry domestic territorial limitations is a critical protection based on Fourth Amendment privacy concerns. If the law were expanded to allow warrants to automatically reach information stored abroad on the basis that it is accessible from the United States, this could have wide-ranging implications for companies and individuals subject to government investigations. The government may begin to demand that evidence stored in overseas repositories be turned over as a matter of course. As technology continues to blur the lines between what is foreign and domestic, the physical location of stored electronic data may become an inquiry of the past. The search warrant, already one of the most powerful tools the government has at its disposal, could become vastly more effective at helping the government make its case.