Sunday, February 5, 2017

Privacy - Does the location of where email is stored matter? Maybe not.

     Last week, U.S. Magistrate Judge Thomas J. Rueter in Philadelphia ruled that Google pursuant to a Stored Communication Act (SCA) warrant should turn over any emails in its possession related to the target of an FBI investigation, even those emails residing on a foreign server (Reuters link) (Order link; hosted on  Deja vu?  Isn't this the same issue that Microsoft appealed last year and won at the Court of Appeals for the Second Circuit?  Yes, it is.

     For starters, Pennsylvania is located in the Court of Appeals for the Third Circuit, so the Microsoft decision is not binding.

     In the Microsoft case, the Second Circuit found that enforcing an SCA warrant by directing Microsoft "to seize the contents of its customer's communications stored in Ireland" would constitute an unlawful extraterritorial application of the SCA.  Microsoft v. U.S., 829 F.3d 197, 220-21 (2d Cir. 2016).

     However, in this case, the Judge found that sending data from a foreign server to a US server does not constitute a "seizure" within the Fourth Amendment because Google had stipulated that it regularly moves user data around its data centers without user knowledge.  Thus, "there is no meaningful interference with the account holder's possessory interest in the user data" (Order at 20).

     The Judge also found that any "search" of the data -- and its concommitant invasion of privacy -- would occur in the U.S. only when the government actually views the data (Order at 23). 

     Therefore, there is no extraterritorial application of the SCA (Order at 24).

- Henry Park

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