Thought your data was safe outside America after the Microsoft ruling? Think again

US court decides Google must cough up emails held abroad

By Iain Thomson in San Francisco


The US Department of Justice will be happy campers this weekend. A court in Pennsylvania has ruled that Google must obey domestic search warrants for data stored overseas.

In other words, Google has to hand over to the FBI suspects' email regardless of where it is held. The ad giant had previously refused to comply with two court orders.

The timing of this ruling is rather interesting. Last month, Microsoft won a crucial privacy battle in the Second Circuit Court of Appeals in a similar case. Microsoft was ordered to hand over emails stored on cloud systems in Ireland to American investigators probing drugs trafficking. The Windows giant refused to comply, bagged a landmark appeal, and is able to take the matter all the way to the US Supreme Court.

Specifically, Microsoft was served a Stored Communications Act (SCA) warrant by a court in New York. The corporation successfully argued that US investigators should have gone to the Irish authorities to request access to files on the Irish servers. The DoJ's lawyers saw it another way: that Microsoft is an American corporation and thus must always yield to American courts.

On Friday, in a separate case, a district court in eastern Pennsylvania ruled that Google must obey two SCA search warrant and cough up emails stored overseas to the Feds. The judge's decision [PDF] is seemingly at odds with the appeals court: it doesn't matter that Google distributes its file systems across the world, it's still an American corporation. And that means an American court can order it to give up customers' private information.

"Google regularly transfers user data from one data center to another without the customer's knowledge," said Magistrate Judge Thomas Rueter.

"Such transfers do not interfere with the customer's access or possessory interest in the user data. Even if the transfer interferes with the account owner's control over his information, this interference is de minimis and temporary."

The judge said the requested messages would only be opened in the US, so it wasn't, in his opinion, a foreign search and thus it falls under US jurisdiction: the search warrants pursue suspects living in America, it was noted.

"The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and 'this interference is de minimis and temporary'," said Professor Orin Kerr of the George Washington University Law School.

"I don't think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant. And I don't see what is 'de minimis and temporary' about the government ordering Google to make a copy of your email pursuant to a court order."

He concluded: "It certainly may be a reasonable seizure, but I think it’s still a Fourth Amendment seizure."

In a statement on Saturday, a Google spokesperson said: "The magistrate in this case departed from precedent, and we plan to appeal the decision. We will continue to push back on over-broad warrants." ®

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