United States: Blurred Lines: Can The Government Seize U.S. Data Housed In A Foreign Country?

Last Updated: February 23 2017
Article by Tyler Maulsby

For the moment it depends who you ask. In recent weeks, we have heard talk of walls and borders. But some at the Department of Justice are working to break down barriers and convince the courts that they can gain access to a person's data regardless of where it is ultimately stored. In this post I address two recent cases that reached completely different results on whether the government can enforce a warrant that seeks data from a U.S. company but that is stored in a foreign country.

In both cases the government sought and obtained warrants under the Stored Communications Act (the SCA, 18 U.S.C. § 2701 et seq.) for data from two Internet Service Providers (ISP's) – Microsoft and Google. Section 2703 of the SCA regulates what procedures the government must follow when seeking stored electronic communications. For instance, if the government is only seeking basic subscriber information it must only issue an administrative subpoena. Conversely, if the government wants to obtain the contents of stored communications from the ISP, it must seek a warrant in accordance with the Federal Rules of Criminal Procedure. The two cases discussed here dealt with the latter situation, where the government obtained warrants for the contents of email communications.

Microsoft v. U.S.

In Microsoft v. United States, federal law enforcement obtained a warrant during a criminal narcotics investigation. The warrant ordered the seizure of the content of certain stored communications from a Microsoft email account believed to belong to the targets of the investigation. In response, Microsoft produced information that was stored on servers within the United States but refused to disclose the content of the email communications the warrant sought on the ground that the servers where the communications were stored were located in Ireland.

Though the district court upheld the warrant and ordered Microsoft to turn over the data stored in Ireland, the Second Circuit reversed. The court concluded that Section 2703 of the SCA does not apply extraterritorially and therefore does not require an ISP to produce data stored on a foreign server. Specifically, the Court held that the SCA "does not authorize courts to issue and enforce against U.S.-based service providers warrants for the seizure of customer email stored exclusively on a foreign server." The case was widely followed and resulted in dozens of amicus briefs filed by technology and media companies, trade associations, computer scientists and even the government of Ireland in support of Microsoft's position.

Recently the Second Circuit denied en banc rehearing by a 4-4 vote. Thus, absent a decision from the U.S. Supreme Court or new legislation, the Microsoft decision is controlling throughout the Second Circuit.

Google v. United States

Meanwhile, in USA v. Information Associated With Google Accounts More Fully Described in Attachment A ("Google v. U.S.") a federal magistrate in the Eastern District of Pennsylvania reached the exact opposite conclusion. Like Microsoft, the Google case also involved a warrant obtained pursuant to the SCA for the content of stored communications. In response Google raised the same objections as Microsoft and relied heavily on the Microsoft case as support for its position. Unlike Microsoft, however, the magistrate in Google upheld the warrant.

With respect to the SCA's reach, the court in Google drew the line in a very different place than Microsoft. In Microsoft, the court reasoned that the warrant could not reach the data because the data was in another country. Conversely, the magistrate in Google held that the end location of the data did not matter because the ultimate seizure would take place in the U.S. once the company transferred the responsive data back to its American servers. The Google court reasoned "[e]lectronically transferring data from a server in a foreign country to Google's data center in California does not amount to a 'seizure' because there is no meaningful interference with the account holder's possessory interest in the user data." In support of its decision the court pointed to cases where courts held that "photocopying documents or taking photographs of materials did not constitute a "seizure" because such actions did not meaningfully interfere with the owners' possessory interest."

The court also distinguished Microsoft on the facts, noting that the way Google stored its information differed significantly from Microsoft. In Microsoft the data did not leave Ireland. Conversely, in Google the company could not actually tell the magistrate where its data was stored. This was because Google regularly moves data between its global network of servers for efficiency. Thus, as the court noted, it would be almost impossible in the context of Google to determine which country's sovereignty would be implicated. Microsoft, on the other hand, did not have that problem.

What's Next?

Obviously this issue is not going away any time soon. A company may decide to store data in the U.S. or abroad for a number of reasons including cost, efficiency and the privacy protections available in certain countries. Further, while the line drawn in Microsoft makes sense at first blush, it may not be workable for a company that stores data like Google. According to Google, it intends to appeal the Pennsylvania decision. While there is no telling what the Third Circuit will do (or the District Court for that matter), we may be in for our first big circuit split of 2017.

www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Tyler Maulsby
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.