Tech giants file briefs supporting Google in case of FBI subpoena

By Nicholas Malfitano | Mar 17, 2017

PHILADELPHIA – In light of a Pennsylvania magistrate judge’s ruling directing Google to comply with Federal Bureau of Investigation (FBI) search warrants and turn over data stored outside the United States, several titans of the technology world have lent their support to Google through the filing of amicus briefs.

On Monday, the briefs from Microsoft, Amazon, Cisco Systems, Apple and Yahoo were filed in the U.S. District Court for the Eastern District of Pennsylvania, allying with Google in its opposition to the Feb. 3 decision from Magistrate Judge Thomas J. Rueter.

Overruling a prior refusal on the part of the company, Rueter ordered Google to follow the demands of three search warrants issued by the U.S. Government requiring the company to turn over electronic data, even though it was stored outside the country. Rueter ruled that compelling Google to produce the data does not constitute an unlawful extraterritorial application of the Stored Communications Act (SCA).

The SCA is a federal law which establishes the nondisclosure requirements for providers of electronic communications services and remote computing services. The act includes certain exceptions such as 18 U.S.C. 2703, which states that the government may obtain access to basic subscriber and transaction information through an administrative subpoena. This allows the federal government to obtain non-content records or material that is relevant to a criminal investigation from digital service providers in this way.

Rueter granted a government motion to compel the turning over of the data stored overseas, a decision Google vehemently opposes.

“Despite the Supreme Court’s repeated emphasis in recent years on the importance of the presumption against extraterritoriality, the magistrate judge’s decision fails to apply that presumption properly. He held that a provider’s search and seizure of customer communications stored outside the United States did not constitute extraterritorial conduct relevant to the focus of the SCA. That holding is incorrect,” Google stated in its brief objecting to Rueter’s order.

Now, other technology giants have rallied to Google’s defense.

“The U.S. Government frequently serves some amici with warrants issued under the Stored Communications Act (SCA). When the data sought is stored in a U.S. data center, Amici regularly comply with such warrants. The government, however, also has attempted to use such warrants to force some Amici, without consent of the customer or the foreign country, to seize private emails stored in a foreign country and to turn them over to the government. But the SCA does not authorize warrants that reach into other countries, and forcing those Amici to execute such searches on the government’s behalf would place those Amici in the position of being compelled to risk violating foreign data privacy laws,” an amicus brief from Microsoft, Amazon, Cisco Systems and Apple read.

Those companies cited a recent decision from U.S. Court of Appeals for the Second Circuit, which rejected a U.S. government attempt to access private emails stored on servers in Ireland in a narcotics case, and agreed with Microsoft that the SCA does not apply to data stored on such foreign servers.

“That court recognized, as do Amici, that the SCA – a statute enacted when the internet was still in its infancy – needs to be updated to both strengthen its protections on individual privacy in light of advances in technology and ensure that those advances do not prevent law enforcement from being able to do their jobs. But the court also understood that any such modernization must come from Congress, not the judiciary. Until Congress does so, however, compelling service providers to execute SCA warrants to search and seize communications stored on servers located in foreign countries remains an impermissible extraterritorial application of U.S. law,” the brief continued.

Yahoo’s separate amicus brief contended Rueter’s decision created conflict with the one reached by the Second Circuit, which they believe “has made it difficult for providers to understand when they must produce private customer data residing on a server outside of the United States to law enforcement in response to a warrant.”

“If Congress decides to extend law enforcement’s power to search and seize data stored overseas, it should do so expressly in an amendment to [Federal] Rule [of Civil Procedure] 41 or the SCA. Accordingly, Yahoo urges the court to reject the Magistrate Judge’s ruling,” Yahoo’s amicus brief stated.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-mj-01061

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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