Google Goes 0 For 2 in its Request for Review of SCA Warrant Cases: eDiscovery Case Law

by CloudNine

As Tom O’Connor and I discussed last week in our ACEDS webinar Key eDiscovery Case Law Review for First Half of 2017 (here’s a link if you missed it), Google was ordered earlier this year to produce foreign stored emails by judges in California and Pennsylvania in response to government warrants.  Last month, Google’s request for review on the two cases (and interpretation of Section 2703 of the Stored Communications Act of 1986) didn’t change the results.

With regard to In re Search Warrant No. 16-960-M-1 to Google; In re Search Warrant No. 16-1061-M to Google, MJ Nos. 16-960, 16-1061 (E.D. Pa. Aug. 17, 2017), Pennsylvania District Judge Juan R. Sànchez considered Pennsylvania Magistrate Judge Thomas J. Rueter’s February ruling which ordered Google to comply with a search warrant to produce foreign-stored emails, disagreeing with the Second Circuit’s ruling in the Microsoft Ireland warrant case, where Microsoft was not ordered to provide access to emails in that ruling.  In considering Google’s request to review Judge Rueter’s order, Judge Sànchez stated:

“The issue in this case is whether enforcing the SCA warrants in question to require Google to produce communications and other subscriber data stored on servers located outside the United States constitutes an extraterritorial application of the statute. In analyzing this issue, the Court starts with the presumption against extraterritoriality, “a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’””

With that in mind, Judge Sànchez, in upholding the Magistrate Court decision, ruled that “Even if the steps taken by a provider to search for, access, and retrieve subscriber communications for eventual disclosure to the government were conduct relevant to § 2703’s focus, this Court has considerable difficulty with Google’s assertion that, where the communications in question are stored in foreign data centers, the ‘vast majority’ of this conduct occurs outside of the United States…By Google’s own account, the search and retrieval process consists of a series of queries initiated by Google personnel in the United States to which servers in the targeted data centers respond….While these queries may be run on servers in Google’s foreign data centers, it is difficult to see how this amounts to conduct by Google at the location of the data center, given that the United States-based employees direct the search and retrieval process remotely, without involvement by any personnel located abroad…That the subscriber’s communications are accessed only by—and can be accessed only by—Google personnel in the United States, and are produced by such personnel in the United States, reinforces the conclusion that the only conduct involved in the search and retrieval process occurs domestically.”

With regard to In the Matter of the Search of Content Stored at Premises Controlled by Google Inc. and as Further Described in Attachment A, No. 16-mc-80263-RS (N.D. Cal. Aug. 14, 2017), Google moved for de novo review of California Magistrate Judge Laurel Beeler ‘s determination “the disclosure is a domestic application of the SCA.”  California District Judge Richard Seeborg, in considering the same issues, ruled:

“As to the question of whether Google is undertaking essential aspects of compliance with section 2703 outside the United States, the answer is no. As a factual matter, the information sought by the government is easily and lawfully accessed in the United States, and disclosure of that content would likewise take place in the United States. Indeed, only 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 and all such Google personnel are located in the United States…Accordingly, the conduct relevant to the SCA’s focus occurs in the United States.”

I’m sure we haven’t heard the last of either of these cases yet, just like it appears we haven’t heard the last of the Microsoft Ireland warrant case yet either.

So, what do you think?  Should the location of the data or the location of the searches for the data determine whether it is subject to foreign data privacy considerations?

[View source.]

Written by:


CloudNine on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.