Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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The United States District Court for the Northern District of California ordered Google to turn over all electronically stored information subject to a search warrant, including the information that was stored electronically abroad. The Court reasoned that the Stored Communications Act regulates information in the service provider’s – Google’s – possession and because Google is headquartered in the U.S. and the information will be accessed there, the disclosure was a domestic application of the SCA. It was irrelevant where the information was “stored”.
The government applied for a search warrant for Google to produce content related to email accounts of its users. Google provided all material that was “in the United States” but moved to quash as to the remaining information, arguing that the government cannot access material that is stored abroad and that the information was not located where the search warrant indicated.
The Court ordered Google to produce all information subject to the search warrant and denied its motion to quash.
The second issue, whether the information existed in the locations specified in the search warrant, was dealt with in an earlier order by the Court, so the Court confined its review to the remaining dispute, namely whether Google could access information stored outside the U.S. Google argued that due to the decision in the Second Circuit in the Microsoft case, the Court could not compel disclosure, while the government countered this was authorized under the Stored Communications Act (“SCA”).
The Court first noted that the SCA does not contemplate extraterritoriality under the express terms of the Act, and generally, there is a presumption that unless an Act expressly states that it will be applicable abroad, it does not apply to non-domestic activities. Since the parties did not dispute that the warrant provisions of the SCA do not contemplate or permit extraterritorial application, the relevant question for the Court was whether the facts of the case would involve a domestic application of the SCA. The Court compared this case with the Second Circuit decision in Microsoft, where the Court found that Microsoft did not need to disclose information stored abroad in Ireland because it would be a unlawful application of the SCA to apply it outside the U.S. In the Microsoft case, the Second Circuit denied the government access to the Ireland content. It determined that the statute’s focus was user privacy, rejected the government’s contrary argument that the SCA focused on “disclosure of content,” and concluded that requiring Microsoft to disclose content stored in Ireland would be an unlawful extraterritorial application of the Act. The government sought a rehearing en banc, which the Second Circuit denied in a four-four split decision. The Court in the present case found the dissent in the en banc hearing of Microsoft persuasive, and held that the disclosure of information at Google’s headquarters in the U.S. was a domestic application of the Act and permitted. The Court reasoned that the information was in Google’s possession and it should not matter where it is “stored,” but rather where Google’s headquarters were and where Google will access the information.
Therefore, the Court denied the Motion to Quash and ordered Google to comply with the search warrant.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by allowing information to be accessed even when it is stored abroad. This ruling is in stark contrast to the decision in Microsoft v. United States, where the Second Circuit denied the government access to content stored in Ireland. The Department of Justice has asked the U.S. Supreme Court to review the Microsoft decision. A decision has not yet been issued. Several District Courts have allowed information to be retrieved under the SCA, for example, the District Court for the Eastern District of Pennsylvania In re Search Warrant No. 16-960-M-01 to Google.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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