The application of federal search warrants issued under the Stored Communications Act has become increasingly problematic as more entities store some or all of their data outside of the United States, even if those entities can readily access that data within the United States.

In my April 2017 article, “A Walk in the Cloud: Search Warrants for Data Stored Outside the US,” I used the opinion of Magistrate Judge Thomas J. Rueter in In re Search Warrant No. 16-960-M-01 to Google, No. 16-960-M-O1 (E.D.PA Feb. 3), to discuss the problems of interpreting the Stored Communications Act, 18 U.S.C. Section 2703 (the SCA) when the government obtained search warrants to have digital carriers such as Google produce information that Google stored, for its convenience, outside of the United States. We considered those problems granularly, but they could be summed up by noting that the SCA was written years before the internet emerged, and attempts to amend the law through passage of the Law Enforcement Access to Data Stored Abroad Act, S. 512 (114th) (the LEADS Act), have gotten nowhere.

In In the Matter of the Search of Content Stored at Premises Controlled by Google, Case No. 16-mc-80263-RS (N.D.CA. Aug. 14), Judge Richard Seeborg affirmed a magistrate judge's order compelling Goggle to comply with an SCA search warrant that required Google to produce data housed outside of the United States. Although the opinion discussed the legal arguments other courts have made when records sought by an SCA search warrant were housed outside of the United States, what is most interesting about the opinion is how it addressed the issue by regarding the SCA search warrant as one in name only and relying upon arguments in place before the rise of cloud storage, or of the internet itself.

The Facts

In Google, a magistrate judge authorized a search warrant under the SCA which directed Google “to produce stored content related to certain email accounts.” The government sought to obtain a search warrant because the SCA directed that when the government sought the content of electronic communications stored for less than 180 days, as opposed to noncontent information (e.g., subscriber information), or content information older than 180 days, a search warrant supported by probable cause was required. Google responded that the search warrant should not have been issued because it constituted “an unlawful extraterritorial application of the SCA,” and moved to quash with respect to electronic communications stored outside of the United States. The magistrate judge denied Google's motion and it appealed to the district court, which upheld the magistrate judge's ruling.