By Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. 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.’ 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.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

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