US Judge: “Actual Location” of Electronic Data Does Not Matter

In late April 2017, magistrate judge Laurel Beeler rejected Google’s motion to quash a search warrant that requested data stored on foreign servers. This decision directly contradicted one made by circuit Judges in the New York Second Circuit Court of Appeals in a case where Microsoft fought a similar warrant. In both—unrelated but strikingly similar—cases, the tech giants received Stored Communications Act (SCA) warrants. Both complied with respect to data stored in the United States but refused to release overseas data. Microsoft won.

Google, as of April 19, 2017, lost. According to judge Laurel Beeler, Google’s internationally stored data was different than that of the data Microsoft stored overseas. Not in the sense that the content was of a different variety. But that Google’s storage protocols rendered the Microsoft Corp. v. United States ruling relevant.

The US issued the Google SCA warrant in 2016. It provided a specific scope of targets that the internet service company needed to provide information on. The SCA warrant asked for, in essence, everything Google owned in connection to the accounts specified in the warrant. This included, but was not limited to, email messages, metadata from the emails, attachments, contacts, location data. Technically, the warrant requested “subscriber information, evidence of specified crimes, and information about the account holders’ true identities, locations, and assets.”

Google provided the US government with the following data, according to magistrate judge Laurel Beeler’s decision:

“One, for all Google accounts (except for one that did not exist), Google produced records ‘confirmed to be stored in the United States,’ including subscriber information, Google Contacts, files, location history, search history, Maps, and Photos metadata. Two, for all but two accounts, Google ‘produced email content and header information’ but ‘did not produce any attachments to those emails because they were not confirmed to be stored in the United States.’ Three, for the remaining two accounts, Google ‘did not produce any Gmail content, non-content[,] or attachments’ because ‘all such information for those accounts was stored exclusively outside of the United States.’”

She argued that since Google possessed the capability to pull up the data, so should the US government. Unlike Microsoft, she explained, Google does not store subscriber information on a server based on the subscriber’s locale—something Microsoft does not even verify when a new user signs on. Instead, she wrote, Google spreads subscriber data across multiple servers. Even different ones without a connection to the subscriber’s physical identity or location. The company distributes data based on network efficiency and similar factors, she explained.

Therefore, unlike Microsoft, Google has no control over similar data storage—with respect to a subscriber’s physical identity. Microsoft does have this control. Therefore, since “there is no storage decision here,” the Microsoft Corp. v. United States ruling failed to provide a valid defense. She ordered Google to hand over all international data the company had access to. Not the non-existent accounts, though.

In February 2017, DIVIDEDBY0 wrote that, if this decision did not get overturned, the United States might stand in violation of international treaties. The aforementioned Microsoft case found itself in the midst of an international struggle against a former Silk Road moderator named Gary Davis. The Irishman fought his extradition to the United States and continues to do so, despite facing questionably legal activity by US law enforcement. See the post-Court of Appeal article for a specific example; two US Marshals flew to Ireland with three return tickets for the following day. The Court confirmed that Davis, as standard in extradition cases, had 15 days to appeal the decision.

This ruling might add another nail in the coffin prepared for US foreign relations. Only time will tell.