Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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The U.S. District Court for the Eastern District of Pennsylvania granted the Government’s Motions to Compel requiring Google to produce electronically stored information that was located abroad, relating to the subjects of two separate criminal investigations. Applying a two-part test used by the U.S. Supreme Court in Morrison v. Nat’l Australia Bank Ltd and subsequently by the Second Circuit in Microsoft Corp., the Court reasoned that although the warrant provisions of the Stored Communications Act (“SCA”) were not intended to apply abroad, in this case the search element of the warrant took place in the U.S. when the data was disclosed to and reviewed by the Government and not where and when it was collected which may have been on servers outside the U.S. Accordingly, the Court held that the execution of the warrants did not constitute an unlawful extraterritorial application of the SCA.
This case involves two search warrants, both issued for data associated with individual accounts, and both supported by probable cause of suspected criminal activity (the two cases were consolidated by the Court). Google partially complied with the search warrants by providing information it could confirm was stored on servers located in the US. servers, but refused to provide all of the information citing a recent decision in the Second Circuit, Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F. 3d 197 (2d Cir. 2016).
The Government filed Motions to Compel Google to produce the remaining information. The Court issued a show cause order requiring Google to explain why it had failed to comply with the search warrants and Google responded arguing that it was not required to provide this information because it was stored on servers outside of the U.S.
Thomas Rueter, U.S. Magistrate Judge, gave the opinion granting the Government’s Motions to Compel:
The Court noted that the search warrants were issued under Section 2703 of the SCA, which requires compliance with the Federal Rules of Criminal Procedure. Google stores user data in countries all over the world and this data is transferred automatically from point to point as frequently as needed to optimize overall performance which means that the location of any stored data may change at any time. Therefore, Google argued, it cannot determine the location of all of its data at any given time.
The Court went on to review the decision in Microsoft, which had relied on a two-part test, used by the U.S. Supreme Court in Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010), to determine whether the SCA could access information stored abroad. Firstly, did the SCA’s warrant provisions contemplate extraterritorial application: and secondly, would the execution of the warrants constitute an unlawful extraterritorial application of the SCA. Applying this test in Microsoft, the Second Circuit Court found firstly, that the SCA did not contemplate extraterritorial application and secondly, that enforcing the warrant abroad would constitute unlawful extraterritorial application.
The parties in the present case did not dispute the Second Circuit’s conclusion in the first step of the case, namely that Congress did not intend the SCA’s warrant provisions to apply extraterritoriality. Rather, the Court said, the issue was whether the execution of the warrants would constitute extraterritorial application. Specifically, the issue for the Court was where exactly the “seizure and search” was taking place. The Court relied on cases involving seizure of physical property as illustrative because there was little jurisprudence in the area of electronic, or intangible, property. The Court noted that there was case law holding that accessing electronic data does not constitute a “seizure” under the Fourth Amendment, and further that Google had pleaded that information is routinely moved from one location to another. Therefore, the Court said that accessing the information would not constitute a seizure outside the U.S., but postulated whether it would constitute a search. The Court didn’t think so, finding that any actual invasion of privacy – the search – would only occur after the information was disclosed and reviewed by the U.S. Government in the U.S., wherever the data had been collected from.
Finally, the Court analyzed whether granting the Motions to Compel would open up any risks to international comity, and found that there was no risk as the search itself would occur in the U.S. Therefore, the Court granted the Motions to Compel.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case is likely to have a chilling effect on the freedom of expression of users of social media in holding that U.S. authorities can access data stored outside the U.S. in circumstances where the actual search, or invasion of privacy, is held to have taken place in the U.S.
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