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Court Rules SCA Applies and Orders Google to Produce Data Stored Outside of U.S.

Posted on May 15th, 2017

Data under SCAIn re: Search of Content that is Stored at Premises Controlled by Google, Case No. 16-80263 (N.D. Cali., Apr. 19, 2017) is an action by the federal government to obtain information from Google. The court issued a search warrant under the Stored Communications Act (SCA) directing Google to produce its stored content related to certain email accounts, and Google moved to quash. All documents were filed under seal.

Google’s motion for quashing the warrant was based on two grounds: 1) that the U.S. cannot compel Google to turn over content stored outside of the U.S., and 2) that the warrant seeks information that does not exist in the locations specified. The court resolved the second issue early on, leaving only the issue of whether the government could compel production of ESI stored outside of the U.S.

Because of how Google stores data, information responsive to the search warrant was stored wholly outside the United States. The government argued that the SCA permits it to compel production of data that is retrievable from the United States, even if not stored there.

Google did produce data “confirmed to be stored in the United States” including emails, but did not include the attachments for emails because they were not “confirmed” to be stored in the United States. The SCA, the court held, regulates disclosure of data in a service provider’s possession.  However, the court further clarified that the SCA only applies within the United States under the presumption against extraterritoriality (absent express congressional intent to the contrary, federal laws to be construed to have only domestic application). Neither party disputed that the statute does not apply outside of the United States, and thus the only issue for the court was whether the information sought involved a domestic application of the statute, that is whether the data could be considered to be “within” the U.S.

The Google court reviewed a Second Circuit case involving Microsoft in which that court denied access to certain information stored in Ireland, the data relating to Microsoft users in that region.  The Google court distinguished the Second Circuit decision, by reasoning of the warrant being directed to Google in the only place where it can access and deliver the data – its offices in the United States.  The Google court further found the offsite storage facility location was not determinative. Since all the information sought was accessible from the United States, the court found a  domestic application and ordered Google to produce the data under the SCA.

ILS – Plaintiff eDiscovery Experts

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