Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`In re Search Warrant No. 16-960-M-01
`to Google
`
`Misc. No.
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`16-960-M-O 1
`16-1061-M
`
`In re Search Warrant No. 16-1061-M
`to Google
`
`MEMORANDUM OF DECISION
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`THOMAS J. RUETER
`United States Magistrate Judge
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`February 3, 2017
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`In August, 2016, this court issued two search warrants, pursuant to section 2703
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`of the Stored Communications Act, 18 U.S.C. §§ 2701 et~ ("SCA" or "Act"), which required
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`Google Inc. ("Google") to disclose to agents of the Federal Bureau oflnvestigation ("FBI")
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`certain electronic data held in the accounts of targets in two separate criminal investigations.
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`Each account holder resides in the United States, the crimes they are suspected of committing
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`occurred solely in the United States, and the electronic data at issue was exchanged between
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`persons located in the United States.
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`Presently before the court are the Government's motions to compel Google to
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`produce electronic data in accordance with these search warrants (the "Motions"). 1 Google has
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`partially complied with the warrants by producing data that is within the scope of the warrants
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`that it could confirm is stored on its servers located in the United States. (N.T. 1/12/17 at 13.)
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`Google, however, has refused to produce other data required to be produced by the warrants,
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`relying upon a recent decision of a panel of the United States Court of Appeals for the Second
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`Circuit, Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by
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`The Government filed a motion to compel in each of the above-referenced cases.
`See Case No. 16-960-M-01, Doc. 4 and Case No. 16-1061-M, Doc. 5. The motion filed in each
`case is essentially the same. Accordingly, the court's analysis applies to both motions.
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 2 of 29
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`Microsoft Corp., 829 F.3d 197 (2d Cir. 2016) (hereinafter "Microsoft"), rehearing en bane
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`denied, No. 14-2985, 2017 WL 362765 (2d Cir. Jan. 24, 2017). 2 For the reasons set forth below,
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`the court grants the Motions.
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`I.
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`BACKGROUND
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`A.
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`Procedural History
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`On August 2, 2016, the undersigned issued a search warrant pursuant to section
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`2703(b) of the SCA, for all data associated with three Google accounts held by an individual who
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`resided in the United States (Case No. 16-960-M-01). The Affidavit in support of the
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`Application for the Search Warrant established probable cause that the three Google accounts
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`described therein were being used by the target of the investigation to commit a fraud in violation
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`of federal law. The fraud described in the Application occurred exclusively in the United States
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`and the victim of the fraud was domiciled in the United States. The executed warrant was served
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`upon Google at its offices in California. The warrant directed Google to send the data to an FBI
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`agent in Pennsylvania.
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`On August 19, 2016, United States Magistrate Judge M. Faith Angell issued a
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`search warrant (Case No. 16-1061-M) to Google for all data associated with an account of an
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`individual who resided in the United States and was a target of an investigation pertaining to the
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`theft of trade secrets from a corporation located in the United States. The Affidavit in support of
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`2
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`On a request for a rehearing en bane, the active judges of the Second Circuit were
`split evenly (four to four) on whether to grant the petition, and thus the petition was denied. The
`Honorable Susan L. Carney concurred by opinion in the denial of rehearing en bane. No other
`judge joined in this opinion. Four judges filed separate opinions dissenting from the denial of
`rehearing en bane. They were the Honorable Dennis Jacobs, Judge Jose A. Cabranes, Judge
`Reena Raggi, and Judge Christopher F. Droney. Each dissenting opinion was joined by the other
`dissenters.
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`2
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 3 of 29
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`the Application for the Search Warrant established probable cause that the theft occurred in the
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`United States and this conduct violated federal laws. The warrant was served upon Google at its
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`offices in California. The court allowed "Google to make a digital copy of the entire contents of
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`the information subject to seizure." That copy would be provided to an FBI agent located in
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`Pennsylvania. "The contents [would] then be analyzed to identify records and information
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`subject to seizure." See Aff. i! 14(I) filed in support of search warrant.
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`As explained above, Google did not disclose to the Government all of the user
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`data requested in the two warrants. On October 28, 2016, the Government filed a motion to
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`compel Google to comply with the search warrant, filed at Misc. No. 16-960-M-01 (Doc. 4). On
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`October 28, 2016, this court issued an Order to Google to "show cause in a written response by
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`November 14, 2016 as to the basis upon which Google, Inc. chose not to comply with Search
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`Warrant No. 16-960-M-01 (Doc. 4)." On November 22, 2016, Google filed a Response to
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`November 22, 2016 Order to Show Cause and Motion to Amend Non-Disclosure Order (Doc. 7)
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`("Google Resp."). In its Response, Google argued that it was not required to produce electronic
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`records stored outside the United States. Google also argued that the warrant is "over broad
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`because it does not describe with particularity which services there is probable cause to search."
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`In addition, Google challenged the non-disclosure order entered by this court pursuant to 18
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`U.S.C. § 2705(b), contending that the order was an "unconstitutional prior restraint on speech."
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`On January 5, 2017, the Government filed a Reply to Google's Response (Doc. 9) ("Gov't
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`Reply").
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`The procedural history with respect to the Search Warrant at Misc. No. 16-1061-
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`M is similar. On November 22, 2016, the Government filed a motion to compel Google to
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`3
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 4 of 29
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`comply with the search warrant (Doc. 5). On November 22, 2016, the court ordered Google to
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`"show cause in a written response to be filed by December 22, 2016 as to the basis upon which
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`Google chose not to comply with Search Warrant No. 16-1061-M." On December 22 2016
`'
`'
`Google, Inc. filed its response to the order to show cause and filed a motion to amend the non-
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`disclosure order (Doc. 7). As in its Response filed in 16-960-M-01, Google relied on the
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`Microsoft case to justify its non-compliance and also challenged the non-disclosure order. On
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`January 5, 2017, the Government filed its reply brief in this case (Doc. 8).
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`By order dated January 6, 2017, the court granted the parties' joint request for
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`consolidation of the two cases for purpose of the oral argument scheduled on January 12, 2017.
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`The parties submitted a Stipulation of Facts, which was filed in both cases on January 12, 2017.3
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`At the hearing, both Google and the Government stressed the importance of the issues raised by
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`the Microsoft case. Google explained that each year it receives thousands of requests for the
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`disclosure of user data from federal, state, and local governmental entities in connection with
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`criminal matters. The Government emphasized the critical importance of obtaining the
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`electronic data of criminal suspects residing in the United States. Due to the priority of the issue
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`to both parties, the court will address the questions arising from the Microsoft decision in this
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`Memorandum of Decision, and will separately decide the over-breath and non-disclosure issues
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`in separate orders.
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`3
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`The parties entered into a Stipulation regarding the architecture of Google Inc. and
`its businesses. See Case No. 16-960-M-01, Doc. 22 and Case No. 16-1061-M, Doc. 11.
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`4
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 5 of 29
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`B.
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`Stored Communications Act
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`As noted supra, the search warrants at issue in the present cases were issued under
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`section 2703 of the SCA.4 The SCA "was born from congressional recognition that neither
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`existing federal statutes nor the Fourth Amendment protected against potential intrusions on
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`individual privacy arising from illicit access to stored communications in remote computing
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`operations and large data banks that stored e-mails." In re Google Inc. Cookie Placement
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`Consumer Privacy Litig., 806 F.3d 125, 145 (3d Cir. 2015) (internal quotation omitted), cert.
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`denied (2016). Section 2701 of the Act prohibits unauthorized third parties from, inter alia,
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`obtaining, altering or preventing authorized access to an electronic communication stored in a
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`facility through which an electronic communication service is provided. See 18 U.S.C.§ 2701.
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`Section 2701 also imposes criminal penalties for its violation. Id. Subject to certain exceptions,
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`section 2702 of the Act prohibits providers of electronic communication services and remote
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`computing services from disclosing information associated with and contents of stored
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`communications. See 18 U.S.C. § 2702. Significant to the cases at bar, the SCA also empowers
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`the Government to compel a provider to disclose customer information and records. See 18
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`U.S.C. §§ 2702(b), 2703. The Government may seek information in three ways: by subpoena,
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`court order, or warrant. See 18 U.S.C. § 2703. The particular method chosen by the Government
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`dictates the showing that must be made by the Government and the type of records that must be
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`disclosed in response.
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`4
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`The SCA was passed as part of the Electronic Communications Privacy Act of
`1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986).
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`5
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 6 of 29
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`The Court of Appeals in Microsoft succinctly described the SCA's disclosure
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`structure as follows:
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`Regarding governmental access in particular, § 2703 sets up a pyramidal structure
`governing conditions under which service providers must disclose stored
`communications to the government. Basic subscriber and transactional
`information can be obtained simply with an administrative subpoena. 18 U.S.C. §
`2703(c)(2). Other non-content records can be obtained by a court order (a"§
`2703(d) order"), which may be issued only upon a statement of "specific and
`articulable facts showing ... reasonable grounds to believe that the contents or
`records ... are relevant and material to an ongoing criminal investigation." §
`2703(c)(2), (d). The government may also obtain some user content with an
`administrative subpoena or a§ 2703(d) order, but only if notice is provided to the
`service provider's subscriber or customer. § 2703(b)(l)(B).
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`Microsoft, 829 F.3d at 207. The statutory provisions most relevant to the cases at bar pertain to
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`the court's authority to issue a warrant requiring providers to disclose information and
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`authorizing the Government to search the disclosed information. To obtain such user content, the
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`Act generally requires the government to obtain a warrant that has been issued using the
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`procedures set forth in Rule 41 of the Federal Rules of Criminal Procedure. See 18 U.S.C. §
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`2703(a)-( c ).
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`C.
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`Federal Rule of Criminal Procedure 41
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`Rule 41 describes the procedures for the issuance of a search and seizure warrant.
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`Of particular relevance here is Rule 41(b)(5) which provides the following:
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`(5) a magistrate judge having authority in any district where activities
`related to the crime may have occurred, or in the District of Columbia, may issue
`a warrant for property that is located outside the jurisdiction of any state or
`district, but within the following:
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`(A) a United States territory, possession, or commonwealth;
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`(B) the premises - no matter who owns them - of a United States
`diplomatic or consular mission in a foreign state, including any
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`6
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 7 of 29
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`appurtenant building, part of a building, or land used for the mission's
`purposes; or
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`( C) a residence and any appurtenant land owned or leased by the
`United States and used by United States personnel assigned to a United
`States diplomatic or consular mission in a foreign state.
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`Fed. R. Crim. P. 41(b)(5).
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`D.
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`Google's Production of Electronic Data
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`Google is a United States-headquartered company that provides a variety of online
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`and communications services to its users. (Stip. ~ 1.) Google stores user data in various
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`locations, some of which are in the United States and some of which are in countries outside the
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`United States. (Stip. ~ 2.) Some user files may be broken into component parts, and different
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`parts of a single file may be stored in different locations (and, accordingly, different countries) at
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`the same time. (Stip. ~ 3.) Google operates a state-of-the-art intelligent network that, with
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`respect to some types of data, including some of the data at issue in this case, automatically
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`moves data from one location on Google's network to another as frequently as needed to
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`optimize for performance, reliability, and other efficiencies. 5 (Stip. ~ 4.) As a result, the country
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`or countries in which specific user data, or components of that data, is located may change. Id. It
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`is possible that the network will change the location of data between the time when the legal
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`process is sought and when it is served. Id. As such, Google contends that it does not currently
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`have the capability, for all of its services, to determine the location of the data and produce that
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`data to a human user at any particular point in time. (N.T. 1/12117 at 15-16.)
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`Google stores data in a dynamic network which distributes the data, sometimes in
`bits and pieces, to servers located domestically and in foreign countries. Google maintains data
`centers across the Americas, Asia and Europe. See
`www.Google.com/about/datacenters/inside/locations/index.html (last visited February 2, 2017).
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 8 of 29
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`At oral argument, counsel for Google explained that each year Google receives
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`over 25,000 pieces oflegal process from federal, state, and local governmental entities seeking
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`the disclosure of user data in criminal matters. (N.T. 1112117 at 7.) Only Google personnel in
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`Google's Legal Investigations Support team are authorized to access the content of
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`communications in order to produce it in response to legal process. (Stip. ~ 5.) All such Google
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`personnel are located in the United States. Id. Thus, Google discloses data to the Government
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`by having one of its authorized employees in the United States access the data through its
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`computers located in the United States. Indeed, Google admits that this is the only way data can
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`be accessed in response to legal process and the Government has no other available process to
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`obtain the data. 6 (Stip. ~ 5; N.T. 1/12/17 at 17.)
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`Google avers that it has fully complied with the warrants at issue in that it has
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`"produced all records identified with sufficient particularity that are responsive to the
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`warrant(s)." (Google Resp. at 4.) Relying on Microsoft, Google posits that a warrant issued
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`under the SCA "lawfully reaches only data stored within the United States." Id. (citing
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`Microsoft, 829 F.3d at 222). According to Google, it has "already produced all records that it
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`can ascertain are stored within the United States." Id. It further contends that the warrants at
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`issue here cannot compel Google to produce records that are or may be stored outside the United
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`States. Id. To date, therefore, Google has produced only responsive data which it has confirmed
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`to be stored in the United States. See Deel. of John R. Tyler at~~ 1-4. Prior to the Second
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`6
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`At oral argument, when asked how the Government could obtain the sought-after
`data absent Google's production of the data in accordance with the Government's SCA warrant,
`Google's counsel indicated that the Government could work to reform the SCA. (N.T. 1/12/17 at
`17.)
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 9 of 29
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`Circuit's decision in Microsoft, Google routinely complied with federal courts' search warrants
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`which commanded the production of user data stored on Google servers located outside the
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`United States. (N.T. 1/12/17 at 8.)
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`E.
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`The Microsoft Decision
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`The Microsoft decision was the result of an appeal from an order of the United
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`States District Court for the Southern District of New York which denied Microsoft
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`Corporation's motion to quash a search warrant. In that case, United States Magistrate Judge
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`James C. Francis, IV, issued a search warrant pursuant to the SCA authorizing the search and
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`seizure of information associated with a specific web-based email account maintained by
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`Microsoft Corporation. Microsoft moved to quash the search warrant to the extent it required
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`Microsoft to access user data stored and maintained on servers located in Ireland and import that
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`data into the United States for delivery to federal authorities.
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`In a comprehensive opinion, Judge Francis denied the motion to quash and held
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`that the warrant did not violate the presumption against extraterritorial application of a law of the
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`United States. In re Warrant to Search a Certain E-mail Account Controlled and Maintained by
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`Microsoft Corp., 15 F.Supp. 3d 466 (S.D.N.Y. 2014). Judge Francis found that under section
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`2703 of the SCA, the term "a warrant issued using the procedures described in the Federal Rules
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`of Criminal Procedure ... by a court of competent jurisdiction" is ambiguous regarding
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`jurisdiction. Judge Francis explained as follows:
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`This language is ambiguous in at least one critical respect. The words "using the
`procedures described in the Federal Rules of Criminal Procedure" could be
`construed to mean, as Microsoft argues, that all aspects of Rule 41 are
`incorporated by reference in Section 2703(a), including limitations on the
`territorial reach of a warrant issued under that rule. But, equally plausibly, the
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 10 of 29
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`statutory language could be read to mean that while procedural aspects of the
`application process are to be drawn from Rule 41 (for example, the presentation of
`the application based on sworn testimony to a magistrate judge), more substantive
`rules are derived from other sources. See In re United States, [665 F.Supp. 2d
`1210, 1219 (D. Or. 2009)] (finding ambiguity in that "'[i]ssued' may be read to
`limit the procedures that are applicable under§ 2703(a), or it might merely have
`been used as a shorthand for the process of obtaining, issuing, executing, and
`returning a warrant, as described in Rule 41 ");In re Search of Yahoo, Inc., No.
`07-3194, 2007 WL 1539971, at *5 (D. Ariz. May 21, 2007) (finding that "the
`phrase 'using the procedures described in' the Federal Rules remains
`ambiguous").
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`Id. at 4 70-71. Judge Francis resolved this ambiguity by finding that an SCA warrant is a hybrid
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`between a search warrant and a subpoena. Because an SCA warrant is served on a service
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`provider rather than on a law enforcement officer, it "is executed like a subpoena in that it ...
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`does not involve government agents entering the premises of the [internet service provider] ... to
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`search its servers and seize the e-mail account in question." Id. at 471. Thus, the search
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`warrant's subpoena-like qualities required the service provider to hand over information it
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`controls no matter where that information is located. This interpretation was supported by the
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`well-established principle that a court's power to require a person to disclose information applies
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`to all information in that person's custody or control, regardless of where the information is
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`located. See Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 667 (2d Cir. 1983)
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`("Neither may the witness resist the production of documents on the ground that the documents
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`are located abroad. The test for production of documents is control, not location.").
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`Judge Francis also held that "it is difficult to believe that, in light of the practical
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`consequences that would follow, Congress intended to limit the reach of the SCA Warrants to
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`data stored in the United States." In re Warrant to Search a Certain E-mail Account Controlled
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`and Maintained by Microsoft Corp., 15 F.Supp. 3d at 474. The court reasoned that allowing
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`Microsoft to withhold the data stored in Ireland would force the Government to rely solely on
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`Mutual Legal Assistance Treaties ("MLAT"s) to obtain information stored abroad. Judge
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`Francis found that this could not have been Congress' intent as the process under a MLA T is
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`"slow and laborious" and many countries have no MLAT with the United States. Id. at 474-75.
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`Finally, Judge Francis noted that "the concerns that animate the presumption against extra
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`territoriality are simply not present here."
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`"[A]n SCA Warrant does not criminalize conduct taking place in a foreign
`country; it does not involve the deployment of American law enforcement
`personnel abroad; it does not require even the physical presence of service
`provider employees at the location where data are stored. At least in this instance,
`it places obligations only on the service provider to act within the United States."
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`Id. at 475. On July 31, 2014, Chief Judge Loretta A. Preska of the United States District Court
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`for the Southern District of New York affirmed Magistrate Judge Francis' denial of the motion to
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`quash. See In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by
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`Microsoft Corp., 2014 WL 4629624 (S.D.N.Y. Aug. 29, 2014). On appeal, the Second Circuit
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`reversed. Microsoft, 829 F.3d 194 (2d Cir. 2016). The majority opinion was authored by the
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`Honorable Susan L. Carney and joined by District Judge Victor A. Bolden. Circuit Judge Gerard
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`E. Lynch filed a concurring opinion.
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`Significant to the Second Circuit's analytic framework in Microsoft is the
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`principle of construction utilized by the United States Supreme Court in Morrison v. Nat'l
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`Australia Bank Ltd., 561 U.S. 247 (2010). The Second Circuit noted the presumption against
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`extraterritorial application of United States statutes analyzed in Morrison to be "strong and
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`binding." Microsoft, 829 F.3d at 209. The court stated:
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 12 of 29
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`When interpreting the laws of the United States, we presume that legislation of
`Congress "is meant to apply only within the territorial jurisdiction of the United
`States," unless a contrary intent clearly appears. [Morrison, 561 U.S. at 255]
`(internal quotation marks omitted); see also RJR Nabisco, Inc. v. European Cmty.,
`579 U.S._,_, 136 S. Ct. 2090, 195 L.Ed.2d 476 (2016). This presumption
`rests on the perception that "Congress ordinarily legislates with respect to
`domestic, not foreign matters." Id. The presumption reflects that Congress, rather
`than the courts, has the "facilities necessary" to make policy decisions in the
`"delicate field of international relations." Kiobel v. Royal Dutch Petroleum Co.,
`_U.S._, 133 S. Ct. 1659, 1664, 185 L.Ed.2d 671 (2013) (quoting Benz v.
`Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147, 77 S. Ct. 699, 1 L.Ed.2d 709
`(1957)). In line with this recognition, the presumption is applied to protect
`against "unintended clashes between our laws and those of other nations which
`could result in international discord." Equal Emp't Opportunity Comm'n v.
`Arabian American Oil Co., 499 U.S. 244, 248, 111 S. Ct. 1227, 113 L.Ed.2d 274
`(1991) ("Aramco"); see generally Parkcentral Global Hub Ltd. v. Porsche Auto.
`Holdings SE, 763 F.3d 198 (2d Cir. 2014) (per curiam).
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`Id. at 210. The Second Circuit further explained that, when deciding whether the presumption
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`against extraterritoriality applies to a particular act, a court must evaluate whether language in the
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`relevant act indicates a congressional purpose to extend the coverage of such an act beyond
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`places over which the United States has sovereignty or some measure of legislative control. Id.
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`(citing Aramco, 499 U.S. at 248). "The statutory provision must contain a 'clear indication of an
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`extraterritorial application'; otherwise, 'it has none.'" Id. (citing Morrison, 561 U.S. at 255).
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`Based on the approach set forth in Morrison, the Second Circuit engaged in a two-
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`part inquiry into the extraterritorial application of the SCA's warrant provisions. The court first
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`analyzed whether the SCA's warrant provisions contemplate extraterritorial application,
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`ultimately concluding that the statute does not indicate that it applies extraterritorially. Id. at
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`210-11. 7 The court noted that the plain meaning of the SCA supports this finding. Id. at 211. In
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`7
`In Microsoft, the government acknowledged that the warrant provisions of the
`SCA do not contemplate or permit extraterritorial application. Id. at 210.
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 13 of 29
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`addition, the court determined that the term of art "warrant" as used in the SCA was intended to
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`protect privacy rights in a territorial way. Id. at 212. 8
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`Having determined under the first step of the Morrison analysis that the relevant
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`statutory provisions of the SCA do not contemplate extraterritorial application, the court
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`proceeded to the second step. That is, the court identified the statute's focus and assessed
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`whether the execution of the warrant would constitute an unlawful extraterritorial application of
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`the SCA. Id. at 220-21. In so doing, the court examined the plain meaning of the SCA' s warrant
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`provisions, the focus of the substantive provisions of the Act, the focus of sections 2701 and
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`2702 of the Act on the protection of stored electronic data, the adoption by the SCA of the
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`procedures set forth in Fed. R. Crim. P. 41 which reflects the historical understanding of a
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`warrant as an instrument protective of a citizen's privacy, and the legislative history of the
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`statute. See id. at 217-20. Ultimately, the Second Circuit found that the SCA focuses on user
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`privacy and determined that enforcing the warrant by directing Microsoft to seize the contents of
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`its customer's communications stored in Ireland would be an unlawful extraterritorial application
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`of the SCA. Id. at 220-21.
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`F.
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`Morrison Step Two Analysis
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`In a recent decision, the Supreme Court further elaborated on the proper analysis
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`at step two of the Morrison inquiry. In RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090
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`The court rejected the district court's interpretation of the word "warrant" as used
`in 18 U.S.C. § 2703(a) as one being akin to a hybrid between a warrant and a subpoena.
`Microsoft, 829 F.3d at 213-14. Instead, the Second Circuit held that the term warrant was a term
`of art, tied to the restrictions of Fed. R. Crim. P. 41(b)(5) which limits search warrants to a
`United States territory, possession or commonwealth. The court noted that the SCA itself
`distinguishes between subpoenas and warrants and the Act does not use the word "hybrid" to
`describe a warrant. See id. at 214-16.
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 14 of 29
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`(2016), the Court considered the extraterritorial application of two separate sections of the
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`Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et~ ("RICO"), and
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`applied the principles of Morrison to its analysis. In RJR Nabisco, the Court considered whether
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`RICO's substantive prohibitions, contained in§ 1962, apply to conduct that occurs in foreign
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`countries and whether RICO's private right of action, contained in§ 1964(c), applies to injuries
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`that are suffered in foreign countries. In its analysis, the Court reiterated that the first step of the
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`Morrison framework asks "whether the presumption against extraterritoriality has been rebutted
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`- that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially."
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`Id. at 2101. When describing the second step of the Morrison analysis, the Court again indicated
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`that it requires the reviewing court to look at the statute's "focus" to determine whether the case
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`involves a domestic application of the statute. Id. The Court further elaborated, stating:
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`If the conduct relevant to the statute's focus occurred in the United States, then the
`case involves a permissible domestic application even if other conduct occurred
`abroad; but if the conduct relevant to the focus occurred in a foreign country, then
`the case involves an impermissible extraterritorial application regardless of any
`other conduct that occurred in U.S. territory.
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`Id. Given the facts of the case before it, and in light of the statutory provisions at issue, the Court
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`did not employ the second step of the Morrison analysis as it described. Ultimately, the Court
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`determined that the substantive prohibitions of§ 1962 of RICO may apply to foreign conduct and
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`concluded that the presumption against extraterritoriality was rebutted but only with respect to
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`certain applications of the statute. Id. at 2101-06. The Court also held that § 1964( c) requires a
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 15 of 29
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`civil RICO plaintiff to allege and prove a domestic injury to business or property and does not
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`allow recovery for foreign injuries. Id. at 2111.9
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`II.
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`DISCUSSION
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`Much like the issues presented in Microsoft, the present dispute centers on the
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`nature and reach of the warrants issued pursuant to the SCA. The court must determine whether
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`the Government may compel Google to produce electronic records relating to user accounts
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`pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether
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`Google has provided all records in its possession that the Government may lawfully compel
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`Google to produce in accordance with the Second Circuit's ruling in Microsoft. The Government
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`urges this court to depart from the Second Circuit's reasoning in Microsoft and compel
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`disclosure by Google of the relevant electronic data. See Gov't Reply at 3-25. The Government
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`argues that the Microsoft decision is incorrect, inconsistent with the weight of authority, not
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`binding on this court, and should not be followed. For the reasons that follow, this court
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`concludes that compelling Google to disclose to the Government the data that is the subject of
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`the warrants does not constitute an unlawful extraterritorial application of the Act.
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`9
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`Since the RJR Nabisco case was decided, other courts have applied the RJR
`Nabisco interpretation of the Morrison second step. See, e.g., Adhikari v. Kellogg Brown &
`Root, Inc., 845 F.3d 184, 194-96 (5th Cir. 2017) (following guidance ofRJR Nabisco and
`analyzing whether there was any domestic conduct relevant to the plaintiffs' claims under the
`Alien Tort Statute); see also Tatung Co., Ltd. v. Shu Tze Hsu, 2016 WL 6683201, at *8 (C.D.
`Cal. Nov. 14, 2016) (analyzing whether the plaintiff suffered a domestic injury to business or
`property for the purposes of civil RICO's private right of action); Bascufian v. Daniel Yarur ELS
`Amended ComplaintA, 2016 WL 5475998, at *6 (S.D.N.Y. Sept. 28, 2016) (to determine
`whether a plaintiff may maintain a private cause of action under § 1964( c ), the court must
`consider where the alleged injury was suffered).
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`Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 16 of 29
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`A.
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`Application of the Morrison Analysis
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`As an initial matter, the court notes that the parties do not dispute the Second
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`Circuit's conclusion at the first step of the Morrison framework - that Congress did not intend
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`the SCA's warrant provisions to apply extraterritorially. Rather, the Government takes issue
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`with the second step of the Morrison analysis as applied by the Second Circuit in Microsoft. The
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`Government argues that the Second Circuit erred when it determined that the "focus" of section
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`2703 of the SCA is privacy, as opposed to disclosure. 10 However, the court will assume,
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`arguendo, that the focus of the SCA's warrant provisions is privacy as the Second Circuit
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`reasoned.
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`With this "focus" in mind, a reviewing court must determine whether the case
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`involves a domestic application of the SCA. See RJR Nabisco, 136 S. Ct. at 2101. To do so, the
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`court must examine where the conduct relevant to