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In re Search Warrant No. 16-960-M-01 to Google

United States District Court, E.D. Pennsylvania

February 3, 2017

In re Search Warrant No. 16-960-M-01 to Google In re Search Warrant No. 16-1061-M to Google

          MEMORANDUM OF DECISION

          THOMAS J. RUETER United States Magistrate Judge.

         In August, 2016, this court issued two search warrants, pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 et seg. ("SCA" or "Act"), which required Google Inc. ("Google") to disclose to agents of the Federal Bureau of Investigation ("FBI") certain electronic data held in the accounts of targets in two separate criminal investigations. Each account holder resides in the United States, the crimes they are suspected of committing occurred solely in the United States, and the electronic data at issue was exchanged between persons located in the United States.

         Presently before the court are the Government's motions to compel Google to produce electronic data in accordance with these search warrants (the "Motions").[1] Google has partially complied with the warrants by producing data that is within the scope of the warrants that it could confirm is stored on its servers located in the United States. (N.T. 1/12/17 at 13.) Google, however, has refused to produce other data required to be produced by the warrants, relying upon a recent decision of a panel of the United States Court of Appeals for 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) (hereinafter "Microsoft"), rehearing en banc denied. No. 14-2985, 2017 WL 362765 (2d Cir. Jan. 24, 2017).[2] For the reasons set forth below, the court grants the Motions.

         I. BACKGROUND

         A. Procedural History

         On August 2, 2016, the undersigned issued a search warrant pursuant to section 2703(b) of the SCA, for all data associated with three Google accounts held by an individual who resided in the United States (Case No. 16-960-M-01). The Affidavit in support of the Application for the Search Warrant established probable cause that the three Google accounts described therein were being used by the target of the investigation to commit a fraud in violation of federal law. The fraud described in the Application occurred exclusively in the United States and the victim of the fraud was domiciled in the United States. The executed warrant was served upon Google at its offices in California. The warrant directed Google to send the data to an FBI agent in Pennsylvania.

         On August 19, 2016, United States Magistrate Judge M. Faith Angell issued a search warrant (Case No. 16-1061-M) to Google for all data associated with an account of an individual who resided in the United States and was a target of an investigation pertaining to the theft of trade secrets from a corporation located in the United States. The Affidavit in support of the Application for the Search Warrant established probable cause that the theft occurred in the United States and this conduct violated federal laws. The warrant was served upon Google at its offices in California. The court allowed "Google to make a digital copy of the entire contents of the information subject to seizure." That copy would be provided to an FBI agent located in Pennsylvania. "The contents [would] then be analyzed to identify records and information subject to seizure." See Aff. ¶ 14(1) filed in support of search warrant.

         As explained above, Google did not disclose to the Government all of the user data requested in the two warrants. On October 28, 2016, the Government filed a motion to compel Google to comply with the search warrant, filed at Misc. No. 16-960-M-01 (Doc. 4). On October 28, 2016, this court issued an Order to Google to "show cause in a written response by November 14, 2016 as to the basis upon which Google, Inc. chose not to comply with Search Warrant No. 16-960-M-01 (Doc. 4)." On November 22, 2016, Google filed a Response to November 22, 2016 Order to Show Cause and Motion to Amend Non-Disclosure Order (Doc. 7) ("Google Resp."). In its Response, Google argued that it was not required to produce electronic records stored outside the United States. Google also argued that the warrant is "over broad because it does not describe with particularity which services there is probable cause to search." In addition, Google challenged the non-disclosure order entered by this court pursuant to 18 U.S.C. § 2705(b), contending that the order was an "unconstitutional prior restraint on speech." On January 5, 2017, the Government filed a Reply to Google's Response (Doc. 9) ("Gov't Reply").

         The procedural history with respect to the Search Warrant at Misc. No. 16-1061-M is similar. On November 22, 2016, the Government filed a motion to compel Google to comply with the search warrant (Doc. 5). On November 22, 2016, the court ordered Google to "show cause in a written response to be filed by December 22, 2016 as to the basis upon which Google chose not to comply with Search Warrant No. 16-1061-M." On December 22, 2016, Google, Inc. filed its response to the order to show cause and filed a motion to amend the nondisclosure order (Doc. 7). As in its Response filed in 16-960-M-01, Google relied on the Microsoft case to justify its non-compliance and also challenged the non-disclosure order. On January 5, 2017, the Government filed its reply brief in this case (Doc. 8).

         By order dated January 6, 2017, the court granted the parties' joint request for consolidation of the two cases for purpose of the oral argument scheduled on January 12, 2017. The parties submitted a Stipulation of Facts, which was filed in both cases on January 12, 2017.[3]At the hearing, both Google and the Government stressed the importance of the issues raised by the Microsoft case. Google explained that each year it receives thousands of requests for the disclosure of user data from federal, state, and local governmental entities in connection with criminal matters. The Government emphasized the critical importance of obtaining the electronic data of criminal suspects residing in the United States. Due to the priority of the issue to both parties, the court will address the questions arising from the Microsoft decision in this Memorandum of Decision, and will separately decide the over-breath and non-disclosure issues in separate orders.

         B. Stored Communications Act

         As noted supra, the search warrants at issue in the present cases were issued under section 2703 of the SCA.[4] The SCA "was born from congressional recognition that neither existing federal statutes nor the Fourth Amendment protected against potential intrusions on individual privacy arising from illicit access to stored communications in remote computing operations and large data banks that stored e-mails." In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 145 (3d Cir. 2015) (internal quotation omitted), cert. denied (2016). Section 2701 of the Act prohibits unauthorized third parties from, inter alia, obtaining, altering or preventing authorized access to an electronic communication stored in a facility through which an electronic communication service is provided. See 18 U.S.C.§ 2701. Section 2701 also imposes criminal penalties for its violation. Id. Subject to certain exceptions, section 2702 of the Act prohibits providers of electronic communication services and remote computing services from disclosing information associated with and contents of stored communications. See 18 U.S.C. § 2702. Significant to the cases at bar, the SCA also empowers the Government to compel a provider to disclose customer information and records. See 18 U.S.C. §§ 2702(b), 2703. The Government may seek information in three ways: by subpoena, court order, or warrant. See 18 U.S.C. § 2703. The particular method chosen by the Government dictates the showing that must be made by the Government and the type of records that must be disclosed in response.

         The Court of Appeals in Microsoft succinctly described the SCA's disclosure structure as follows:

Regarding governmental access in particular, § 2703 sets up a pyramidal structure governing conditions under which service providers must disclose stored communications to the government. Basic subscriber and transactional information can be obtained simply with an administrative subpoena. 18 U.S.C. § 2703(c)(2). Other non-content records can be obtained by a court order (a "§ 2703(d) order"), which may be issued only upon a statement of "specific and articulable facts showing . . . reasonable grounds to believe that the contents or records ... are relevant and material to an ongoing criminal investigation." § 2703(c)(2), (d). The government may also obtain some user content with an administrative subpoena or a § 2703(d) order, but only if notice is provided to the service provider's subscriber or customer. § 2703(b)(1)(B).

Microsoft, 829 F.3d at 207. The statutory provisions most relevant to the cases at bar pertain to the court's authority to issue a warrant requiring providers to disclose information and authorizing the Government to search the disclosed information. To obtain such user content, the Act generally requires the government to obtain a warrant that has been issued using the procedures set forth in Rule 41 of the Federal Rules of Criminal Procedure. See 18 U.S.C. § 2703(a)-(c).

         C. Federal Rule of Criminal Procedure 41

         Rule 41 describes the procedures for the issuance of a search and seizure warrant. Of particular relevance here is Rule 41(b)(5) which provides the following:

(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within the following:
(A) a United States territory, possession, or commonwealth;
(B) the premises - no matter who owns them - of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission's purposes; or
(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.

         Fed. R. Crim. P. 41(b)(5).

         D. Google's Production of Electronic Data

         Google is a United States-headquartered company that provides a variety of online and communications services to its users. (Stip. ¶ 1.) Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. (Stip. ¶ 2.) Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. (Stip. ¶ 3.) Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies.[5] (Stip. ¶ 4.) As a result, the country or countries in which specific user data, or components of that data, is located may change. Id. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. Id. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time. (N.T. 1/12/17 at 15-16.)

         At oral argument, counsel for Google explained that each year Google receives over 25, 000 pieces of legal process from federal, state, and local governmental entities seeking the disclosure of user data in criminal matters. (N.T. 1/12/17 at 7.) Only Google personnel in Google's Legal Investigations Support team are authorized to access the content of communications in order to produce it in response to legal process. (Stip. ¶ 5.) All such Google personnel are located in the United States. Id. Thus, Google discloses data to the Government by having one of its authorized employees in the United States access the data through its computers located in the United States. Indeed, Google admits that this is the only way data can be accessed in response to legal process and the Government has no other available process to obtain the data.[6] (Stip. ¶ 5; N.T. 1/12/17 at 17.)

         Google avers that it has fully complied with the warrants at issue in that it has "produced all records identified with sufficient particularity that are responsive to the warrant(s)." (Google Resp. at 4.) Relying on Microsoft. Google posits that a warrant issued under the SCA "lawfully reaches only data stored within the United States." Id. (citing Microsoft, 829 F.3d at 222). According to Google, it has "already produced all records that it can ascertain are stored within the United States." Id. It further contends that the warrants at issue here cannot compel Google to produce records that are or may be stored outside the United States. Id. To date, therefore, Google has produced only responsive data which it has confirmed to be stored in the United States. See Decl. of John R. Tyler at ¶¶ 1-4. Prior to the Second Circuit's decision in Microsoft, Google routinely complied with federal courts' search warrants which commanded the production of user data stored on Google servers located outside the United States. (N.T. 1/12/17 at 8.)

         E. The Microsoft Decision

         The Microsoft decision was the result of an appeal from an order of the United States District Court for the Southern District of New York which denied Microsoft Corporation's motion to quash a search warrant. In that case, United States Magistrate Judge James C. Francis, IV, issued a search warrant pursuant to the SCA authorizing the search and seizure of information associated with a specific web-based email account maintained by Microsoft Corporation. Microsoft moved to quash the search warrant to the extent it required Microsoft to access user data stored and maintained on servers located in Ireland and import that data into the United States for delivery to federal authorities.

         In a comprehensive opinion, Judge Francis denied the motion to quash and held that the warrant did not violate the presumption against extraterritorial application of a law of the United States. In re Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corp., 15 F.Supp.3d 466 (S.D.N.Y. 2014). Judge Francis found that under section 2703 of the SCA, the term "a warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction" is ambiguous regarding jurisdiction. Judge Francis explained as follows:

This language is ambiguous in at least one critical respect. The words "using the procedures described in the Federal Rules of Criminal Procedure" could be construed to mean, as Microsoft argues, that all aspects of Rule 41 are incorporated by reference in Section 2703(a), including limitations on the territorial reach of a warrant issued under that rule. But, equally plausibly, the statutory language could be read to mean that while procedural aspects of the application process are to be drawn from Rule 41 (for example, the presentation of the application based on sworn testimony to a magistrate judge), more substantive rules are derived from other sources. See In re United States, [665 F.Supp.2d 1210');">665 F.Supp.2d 1210, 1219 (D. Or. 2009)] (finding ambiguity in that '"[i]ssued' may be read to limit the procedures that are applicable under § 2703(a), or it might merely have been used as a shorthand for the process of obtaining, issuing, executing, and returning a warrant, as described in Rule 41"); In re Search of Yahoo. Inc., No. 07-3194, 2007 WL 1539971, at *5 (D. Ariz. May 21, 2007) (finding that "the phrase 'using the procedures described in' the Federal Rules remains ambiguous").

Id. at 470-71. Judge Francis resolved this ambiguity by finding that an SCA warrant is a hybrid between a search warrant and a subpoena. Because an SCA warrant is served on a service provider rather than on a law enforcement officer, it "is executed like a subpoena in that it. .. does not involve government agents entering the premises of the [internet service provider] ... to search its servers and seize the e-mail account in question." Id. at 471. Thus, the search warrant's subpoena-like qualities required the service provider to hand over information it controls no matter where that information is located. This interpretation was supported by the well-established principle that a court's power to require a person to disclose information applies to all information in that person's custody or control, regardless of where the information is located. See Marc Rich & Co.. A.G. v. United States, 707 F.2d 663, 667 (2d Cir. 1983) ("Neither may the witness resist the production of documents on the ground that the documents are located abroad. The test for production of documents is control, not location.").

         Judge Francis also held that "it is difficult to believe that, in light of the practical consequences that would follow, Congress intended to limit the reach of the SCA Warrants to data stored in the United States." In re Warrant to Search a Certain E-mail Account Controlledand Maintained by Microsoft Corp.. 15 F.Supp.3d at 474. The court reasoned that allowing Microsoft to withhold the data stored in Ireland would force the Government to rely solely on Mutual Legal Assistance Treaties ("MLAT"s) to obtain information stored abroad. Judge Francis found that this could not have been Congress' intent as the process under a MLAT is "slow and laborious" and many countries have no MLAT with the United States. ...


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