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.
Introduction
In In re Search Warrant No. 16-960-M-01 to Google et al., Misc. No. 16-960-M-O1 (E.D.PA Feb. 3, 2017), U.S. Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania granted the government’s motion to compel Google to produce electronically stored information (ESI) that the court had previously ordered Google to produce when, in August 2016, it issued two search warrants under the Stored Communications Act, 18 U.S.C. Section 2703, in two separate criminal matters, ordering Google to produce to the FBI specified data. The opinion is important because it addresses an issue that will continue to grow in prevalence: where is a search conducted when the search is for ESI that could be stored on numerous different servers in numerous different locations—some outside of the United States—but can, and routinely is, accessed from numerous different sites? Furthermore, given that the issue has arisen, at least in part, because of the way in which the SCA was written (well before electronic data was stored in the cloud), and has not been resolved because the Law Enforcement Access to Data Stored Abroad Act, Section 512 (114th) (the LEADS Act), written to address the issue, has died in two sessions of Congress since 2014, it is clear that the issue will not be resolved soon by legislation. As more and more businesses store their ESI as does Google, judicial interpretation of the SCA as it applies to the issue become increasingly important.
Discussion
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