Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 1 of 24
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`IN RE SEARCH WARRANT NO. 16-
`960-M-1 TO GOOGLE
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`IN RE SEARCH WARRANT NO. 16-
`1061-M TO GOOGLE
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`MJ NO. 16-960
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`MJ NO. 16-1061
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`Juan R. Sánchez, J.
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`MEMORANDUM
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`August 17, 2017
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`Google Inc. seeks review of United States Magistrate Judge Thomas J. Rueter’s February
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`3, 2017, Order granting the government’s motions to compel Google to fully comply with two
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`warrants issued pursuant to § 2703 of the Stored Communications Act (SCA), 18 U.S.C.
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`§§ 2701-2712. The warrants require Google to disclose to the Federal Bureau of Investigation
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`electronic communications and other records and information associated with four Google
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`accounts belonging to United States citizens in connection with two domestic wire fraud
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`investigations. Google objects to the Order insofar as it requires Google to produce data the
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`company has elected to store on servers located outside of the United States, asserting that
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`enforcing the warrants as to such data would constitute an unlawful extraterritorial application of
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`the SCA, as the Second Circuit Court of Appeals held in In re a Warrant to Search a Certain E-
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`Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016)
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`[hereinafter Microsoft], reh’g en banc denied, 855 F.3d 53 (2d Cir. 2017) [hereinafter Microsoft
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`Reh’g]. Although Google and each of the account holders in question are based in the United
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`States, Google contends it is the physical location of the data to be retrieved—which Google, not
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`the account holder, controls, and which Google can change at any time for its own business
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`purposes—that determines whether the statute is being applied extraterritorially. Because this
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`Court agrees with the government that it is the location of the provider and where it will disclose
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 2 of 24
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`the data that matter in the extraterritoriality analysis, and because Google can retrieve and
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`produce the outstanding data only in the United States, the Court agrees with the Magistrate
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`Judge’s conclusion that fully enforcing the warrants as to the accounts in question constitutes a
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`permissible domestic application of the SCA. The Order granting the government’s motions to
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`compel will therefore be affirmed.
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`BACKGROUND
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`Google is a United States-based technology company that offers a variety of different
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`online and communications services, including email. See Stip. ¶ 1. Although Google’s
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`corporate headquarters are located in California, the company stores user data in a number of
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`different locations both within and outside of the United States. Id. ¶¶ 1-2. Google operates a
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`“state-of-the-art intelligent network” that automatically moves some types of data, including
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`some of the data at issue in this case, from one network location to another “as frequently as
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`needed to optimize for performance, reliability and other efficiencies.” Id. ¶ 4. In addition, for
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`some types of data—for example, a Word document attached to an email—the network breaks
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`individual user files into component parts, or “shards,” and stores the shards in different network
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`locations in different countries at the same time.1 Id. ¶ 3, Tr. 4. As a result, at any given point in
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`time, data for a particular Google user may be stored not only outside of the country in which the
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`user is located, but in multiple different countries, and the location of the user’s data may change
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`at any time based on the needs of the network. See Stip. ¶¶ 3-4. Thus, for example, the network
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`1 When applied to some types of files, this “sharding” process generates individual shards that
`are incomprehensible on their own and become comprehensible only when the file is fully
`reassembled. See Oral Arg. Tr. 4-5, Apr. 18, 2017 [hereinafter cited as “Tr. __”] (explaining
`shards are “not like pieces of a puzzle, where if you got six of the seven pieces, you could make
`out six-sevenths of the documents”; rather, “[y]ou can’t make out anything comprehensible
`unless you have all seven”).
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`2
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 3 of 24
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`may change the location of data between the time a warrant is sought and the time it is served on
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`Google. See id. ¶ 4.
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`In August 2016, Judge Rueter issued the first of the two warrants in question in this case.
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`The warrant directs Google to provide the FBI with copies of communications and certain other
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`categories of information associated with three Google accounts “stored at premises controlled
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`by Google,” and then authorizes the government to seize certain material from the information
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`received. The government sought the warrant as part of an ongoing wire fraud investigation,
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`whose target is both a citizen and resident of the United States, and all three Google accounts to
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`which the warrant pertains belong to citizens and residents of the United States. The victim of
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`the fraud under investigation is likewise located in the United States. In issuing the warrant,
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`Judge Rueter found the government had demonstrated there was probable cause to believe that
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`evidence of the fraud exists in the Google accounts.
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`Later the same month, United States Magistrate Judge M. Faith Angell issued the second
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`warrant in question, requiring Google to produce to the FBI communications and other records
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`and information associated with a single Google account belonging to the domestic target of a
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`separate wire fraud investigation with a United States-based victim. Like the earlier warrant, this
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`later warrant directs Google to provide the government with copies of certain categories of
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`information associated with the account “located on [Google’s] e mail servers” and authorizes
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`the government
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`to seize
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`from Google’s production certain
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`files, documents, and
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`communications. In issuing the warrant, Judge Angell found the government had shown there
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`was probable cause to believe the target’s Google account contains evidence of the fraud.
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`Both warrants were directed to Google at its headquarters in California, and Google’s
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`responses to the warrants were handled by the company’s Legal Investigations Support team in
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`3
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 4 of 24
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`California. See Stip. ¶ 6; Tr. 32. Support team members are the only Google personnel
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`authorized to access the content of user communications in order to produce such materials in
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`response to legal process, and all support team members are located in the United States. See
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`Stip. ¶ 5. In response to each warrant, Google searched for and retrieved from its network all
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`responsive information stored at locations in the United States, a process that involves sending a
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`series of queries from Google’s headquarters in California to the company’s data centers,
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`directing the servers in those data centers to identify, isolate, and retrieve responsive material for
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`Google to produce to the government. See Tr. 6-7, 30-31. All of the Google personnel involved
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`in this process are located in California. See id. at 32. While Google produced to the
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`government all of the responsive information it confirmed was stored in the United States, it did
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`not produce data not known to be located in the United States. See Stip. ¶¶ 7-8. Rather, Google
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`withheld such data based on the Microsoft decision in which the Second Circuit held “the SCA
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`does not authorize a U.S. court to issue and enforce an SCA warrant against a United States-
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`based service provider for the contents of a customer’s electronic communications stored on
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`servers located outside the United States.” 829 F.3d at 222.2
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`The government thereafter moved to compel Google to fully comply with each warrant,
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`and the matters were consolidated for argument and disposition. On February 3, 2017, Judge
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`Rueter issued a Memorandum of Decision and Order concluding that requiring Google to fully
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`comply with the warrants did not constitute an extraterritorial application of the SCA and
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`granting the government’s motions to compel. Google objects to this Order, taking issue with
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`2 Prior to the Microsoft decision, when responding to a warrant, Google would query its network
`without regard to where on the network responsive information was located. See Tr. 7.
`Following the Microsoft decision, however, Google began limiting its queries to data centers
`located in the United States. See id. at 7-8.
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`4
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 5 of 24
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`the Magistrate Judge’s extraterritoriality analysis. Following briefing of the issue by the parties
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`and amici,3 this Court held oral argument in this matter on April 18, 2017.
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`DISCUSSION4
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`The warrants in question were issued pursuant to the SCA, and it is the reach of the
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`SCA’s warrant provision that is at issue in this case; hence, the Court’s analysis starts with the
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`statute itself. Enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA),
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`the SCA grew out of congressional concern about the lack of privacy protection under existing
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`3 Amicus briefs urging the Court to reject the Magistrate Judge’s ruling were submitted on behalf
`of Yahoo, Inc. and on behalf of Microsoft Corporation, Amazon.com, Cisco Systems, Inc., and
`Apple Inc.
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` 4
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` Because these matters were never referred to a magistrate judge by a judge of this court, as
`contemplated by 28 U.S.C. § 636(b)(1)(A) or (b)(1)(B), the Order granting the government’s
`motions to compel Google’s full compliance with the SCA warrants is best understood as an
`exercise of the Magistrate Judge’s jurisdiction under 28 U.S.C. § 636(b)(3), which permits a
`magistrate judge to be assigned “such additional duties,” beyond those that may be assigned
`under § 636(b)(1)(A) or (b)(1)(B), “as are not inconsistent with the Constitution and laws of the
`United States.” See In re Search of Info. Associated with [Redacted]@gmail.com that Is Stored
`at Premises Controlled by Google, Inc., No. 16-mj-757, 2017 WL 3445634, at *4 (D.D.C. July
`31, 2017). Unlike § 636(b)(1)(A) and (b)(1)(B), § 636(b)(3) does not specify a standard of
`review. Rather, the applicable standard depends upon whether the matter more closely
`resembles a pretrial motion that may be referred under § 636(b)(1)(A), in which case it is subject
`to review under § 636(b)(1)(A)’s “clearly erroneous or contrary to law” standard, or whether it
`more closely resembles one of the eight categories of motions excepted from § 636(b)(1)(A), in
`which case it is subject to de novo review under § 636(b)(1)(B). See NLRB v. Frazier, 966 F.2d
`812, 816 (3d Cir. 1992). In Frazier, the Third Circuit Court of Appeals held that a motion to
`enforce a subpoena to require a witness to testify in a proceeding before an administrative
`agency was analogous to a dispositive motion and therefore subject to de novo review, id. at 817-
`18, and the case thus provides some support for the conclusion that the de novo standard is
`applicable here. The Court need not decide the issue, however, as this case turns on a question
`of law, and even under the clearly erroneous or contrary to law standard, such questions are
`subject to plenary review. See Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992)
`(holding the “contrary to law” standard in § 636(b)(1)(A) “indicates plenary review as to matters
`of law”); see also Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 264 n.30 (3d Cir. 2014)
`(discerning “no difference between the plenary and de novo standards of review”).
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`5
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 6 of 24
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`federal law for electronic communications in the control of third party computer operators.5 As
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`the Third Circuit previously observed, the SCA “was born from congressional recognition that
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`neither existing federal statutes nor the Fourth Amendment protected against potential intrusions
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`on 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) (quoting Garcia v. City of Laredo,
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`702 F.3d 788, 791 (5th Cir. 2012)). The SCA addressed this problem by creating “a set of
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`Fourth Amendment-like privacy protections by statute” for electronic communications held by
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`two types of network service providers: providers of “electronic communication service” and
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`providers of “remote computing service.”6 See Orin S. Kerr, A User’s Guide to the Stored
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`Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208,
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`1212-14 (2004); see also Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).
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`The SCA’s main substantive provisions appear in the first three sections of the Act.
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`Section 2701 prohibits unauthorized access to “a facility through which an electronic
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`5 See S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557 (concluding
`that stored wire and electronic communications—because they are “subject to control by . . .
`third party computer operator[s]” and thus may not be subject to constitutional privacy
`protection—“may be open to possible wrongful use and public disclosure by law enforcement
`authorities as well as unauthorized private parties”); id. at 5 (noting the lack of “Federal statutory
`standards to protect the privacy and security of communications transmitted by new noncommon
`carrier communications services or new forms of
`telecommunications and computer
`technology”).
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` 6
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` For purposes of the SCA, “electronic communication service” means “any service which
`provides to users thereof the ability to send or receive wire or electronic communications.” 18
`U.S.C. § 2510(15). “[R]emote computing service” refers to “the provision to the public of
`computer storage or processing services by means of an electronic communications system.” Id.
`§ 2711(2).
` An “electronic communications system,”
`in
`turn,
`is “any wire, radio,
`electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or
`electronic communications, and any computer facilities or related electronic equipment for the
`electronic storage of such communications.” Id. § 2510(14).
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`6
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`communication service is provided,” making it unlawful to “intentionally access[] without
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`authorization” or to “intentionally exceed an authorization to access” such a facility and thereby
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`to “obtain[], alter[], or prevent[] authorized access to a wire or electronic communication while it
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`is in electronic storage in such system,” and providing criminal penalties for a violation. 18
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`U.S.C. § 2701(a).7 This prohibition against unauthorized access does not apply, however, “with
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`respect to conduct authorized . . . by the person or entity providing a wire or electronic
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`communications service.” Id. § 2701(c)(1). Section 2701 thus does not prohibit a service
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`provider from accessing communications stored on its own system. See Fraser v. Nationwide
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`Mut. Ins. Co., 352 F.3d 107, 115 (3d Cir. 2004) (interpreting Ҥ 2701(c) literally to except from
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`[§ 2701(a)’s] protection all searches by communications service providers”); In re Yahoo Mail
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`Litig., 7 F. Supp. 3d 1016, 1026-27 (N.D. Cal. 2014) (“The SCA grants immunity to 18 U.S.C.
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`§ 2701(a) claims to electronic communication service providers . . . for accessing content on
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`their own servers.”).
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`Whereas § 2701(a) prohibits unauthorized access to stored communications by third
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`parties, §§ 2702 and 2703 govern disclosure of such communications by providers of electronic
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`communication service or remote computing service. Section 2702 prohibits providers from
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`“knowingly divulg[ing]” the contents of stored communications and other subscriber records and
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`information, except as specifically permitted therein, including “as otherwise authorized in
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`section 2703.” Id. § 2702(a), (c)(1). And § 2703 sets forth the conditions under which the
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`government may require providers to disclose the contents of stored communications and other
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`7 A separate SCA provision, 18 U.S.C. § 2707, provides a private civil cause of action for
`knowing or intentional violations of § 2701(a).
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`7
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 8 of 24
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`subscriber records and information, notwithstanding the general prohibition on disclosure in
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`§ 2702. Id. § 2703(a)-(c).
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`Section 2703 establishes three main forms of legal process by which the government may
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`require a provider to disclose subscriber information in its possession: (1) “a warrant issued
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`using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a
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`State court, issued using State warrant procedures),” id. § 2703(a), (b)(1)(A), (c)(1)(A); (2) a
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`“court order for disclosure” (or a “§ 2703(d) order”) issued based on an offer by the government
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`of “specific and articulable facts showing that there are reasonable grounds to believe that the
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`contents of a wire or electronic communication, or the records or other information sought, are
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`relevant and material to an ongoing criminal investigation,” id. § 2703(d); and (3) “an
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`administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury
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`or trial subpoena,” id. § 2703(b)(1)(B)(i), (c)(2). The particular form of legal process the
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`government must obtain depends on the type of information it seeks, with more intrusive
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`disclosures requiring a higher showing by the government. To require a provider to disclose the
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`contents of wire or electronic communications, the government must obtain a warrant, unless
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`prior notice is provided to the affected subscriber.8 Id. § 2703(a), (b)(1)(A). If notice is
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`provided, the government may require a provider to disclose the contents of communications
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`(other than those in storage with a provider of electronic communication service for 180 days or
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`less) by obtaining a § 2703(d) order or a subpoena. Id. § 2703(b)(1)(B). Lesser forms of process
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`are required for non-content information. The government may require a provider to disclose
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`non-content records and other information pertaining to a subscriber by obtaining a § 2703(d)
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`8 A warrant is always required to obtain disclosure of the contents of a wire or electronic
`communication in electronic storage for 180 days or less from a provider of electronic
`communication service, regardless of whether prior notice is provided. 18 U.S.C. § 2703(a).
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`8
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 9 of 24
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`order,9 id. § 2703(c)(1)(B), and may require disclosure of certain basic subscriber information
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`and transactional records by way of a subpoena, id. § 2703(c)(2), though for either type of
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`information, the government may also elect to proceed by warrant.
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`The issue in this case is whether enforcing the SCA warrants in question to require
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`Google to produce communications and other subscriber data stored on servers located outside
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`the United States constitutes an extraterritorial application of the statute. In analyzing this issue,
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`the Court starts with the presumption against extraterritoriality, “a longstanding principle of
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`American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply
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`only within the territorial jurisdiction of the United Sates.’” EEOC v. Arabian Am. Oil Co., 499
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`U.S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). Under
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`this presumption, unless a statute reflects “clearly expressed congressional intent” that it is to
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`apply extraterritorially, it will be “construed to have only domestic application.” RJR Nabisco,
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`Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). Although the presumption serves in part
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`“to avoid the international discord that can result when U.S. law is applied to conduct in foreign
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`countries,” it also “reflects the more prosaic ‘commonsense notion that Congress generally
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`legislates with domestic concerns in mind.’” Id. (quoting Smith v. United States, 507 U.S. 197,
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`204 n.5 (1993)). The presumption thus applies “regardless of whether there is a risk of conflict
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`between the American statute and a foreign law.” Id. (quoting Morrison v. Nat’l Austl. Bank
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`Ltd., 561 U.S. 247, 255 (2010)).
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`9 The government may also obtain disclosure of such non-content records and information with
`the subscriber’s consent or, where the subscriber is engaged in telemarketing and the government
`seeks the information in connection with a telemarketing fraud investigation, by formal written
`request. 18 U.S.C. § 2703(c)(1)(C), (D).
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`9
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 10 of 24
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`The Supreme Court has developed a “two-step framework for analyzing extraterritoriality
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`issues.” Id. at 2101. First, the court must determine “whether the presumption against
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`extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative
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`indication that it applies extraterritorially.” Id. If so, then the statute applies extraterritorially,
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`subject only to “the limits Congress has (or has not) imposed on [its] foreign application.” Id. If
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`the presumption has not been rebutted, then the statute is not extraterritorial, and the court must
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`determine, at the second step of the analysis, “whether the case involves a domestic application
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`of the statute,” id., or, put differently, “whether the domestic contacts [of the case] are sufficient
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`to avoid triggering the presumption [against extraterritoriality] at all,” Microsoft, 829 F.3d at 216
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`(quoting Mastafa v. Chevron Corp., 770 F.3d 170, 182 (2d Cir. 2014)). In making this
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`determination, the court must discern the statute’s “focus” and identify where the conduct
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`relevant to that focus occurred. “If the conduct relevant to the statute’s focus occurred in the
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`United States, then the case involves a permissible domestic application even if other conduct
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`occurred abroad.” RJR Nabisco, 136 S. Ct. at 2101. If, however, “the conduct relevant to the
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`focus occurred in a foreign country, then the case involves an impermissible extraterritorial
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`application regardless of any other conduct that occurred in U.S. territory.” Id.
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`Applying this extraterritoriality analysis, the Second Circuit held in Microsoft that
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`enforcing an SCA warrant to require a domestic service provider to disclose subscriber data
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`stored outside the United States would constitute an extraterritorial application of the statute.
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`829 F.3d at 221-22. At the first step of the analysis, the court concluded Congress did not intend
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`the SCA’s warrant provision to apply extraterritorially, a point the government had conceded.
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`Id. at 210 & n.19, 216. Proceeding to the second step, the court held the focus of the SCA’s
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`warrant provision
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`is on “protecting
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`the privacy of
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`the content of a user’s stored
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`10
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 11 of 24
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`communications.” Id. at 217. The court then concluded the conduct relevant to this statutory
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`focus is the provider’s invasion of its customer’s privacy, which, in the court’s view “takes place
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`under the SCA where the customer’s protected content is accessed—here, where it is seized by
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`Microsoft [the provider], acting as an agent of the government.” Id. at 220. Because the content
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`subject to the warrant in the Microsoft case “[wa]s located in, and would be seized from,
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`[Microsoft’s] Dublin datacenter,” the court concluded the conduct relevant to the statute’s
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`focus—the invasion of privacy—also would occur outside the United States, and enforcing the
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`warrant as to such content would therefore “constitute[] an unlawful extraterritorial application
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`of the Act.” Id. at 220-21.
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`
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`A significant factor in the court’s extraterritoriality analysis was the SCA’s use of the
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`term “warrant,” a form of legal process traditionally understood to authorize searches and
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`seizures only within the United States. See United States v. Verdugo-Urquidez, 494 U.S. 259,
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`274 (1990) (remarking that a U.S. warrant authorizing a search of a defendant’s residence in
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`Mexico “would be a dead letter outside the United States”). Given the territorial limitations
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`traditionally associated with warrants—which typically “identify discrete objects and places, and
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`restrict the government’s ability to act . . . outside of the place identified, which must be
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`described in the document,” Microsoft, 829 F.3d at 212—the court found the statute’s use of the
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`term warrant supported the conclusion that “an SCA warrant may reach only data stored within
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`United States boundaries,” id. at 221.10
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`10 A concurring panel member disagreed with the majority’s characterization of the SCA’s
`warrant requirement, observing an SCA warrant is not a traditional search warrant, and
`concluding that Congress’s use of the term warrant was intended to invoke not the territorial
`limitations but the privacy protections traditionally associated with warrants—namely, “the
`requirement that an independent judicial officer determine that probable cause exists to believe
`that a crime has been committed and that evidence of that crime may be found in the
`communications demanded.” Microsoft, 829 F.3d at 226-28 n.6 (Lynch, J., concurring). While
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`
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`11
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`

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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 12 of 24
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`Although the panel decision in the Microsoft case was unanimous, the decision drew
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`vigorous opposition from other judges of the Second Circuit when the case came before the full
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`court on the government’s petition for rehearing en banc. The petition was denied by an equally
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`divided court, but the denial generated four separate dissents by judges who agreed that
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`enforcing an SCA warrant to require a domestic service provider to disclose information in the
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`provider’s possession, which the provider can access within the United States, constitutes a
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`domestic application of the statute’s warrant provision, regardless of where the provider has
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`elected to store the information. See Microsoft Reh’g, 855 F.3d at 61-62 (Jacobs, J., dissenting);
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`id. at 66-68 (Cabranes, J., dissenting); id. at 70-73 (Raggi, J., dissenting); id. at 75-76 (Droney,
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`J., dissenting). The Microsoft court’s analysis has also been rejected by every magistrate judge
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`and district court that has considered the issue to date, including the Magistrate Judge in this
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`case.11
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`the concurring judge did not view the term warrant as dispositive of the instrument’s reach, the
`judge nevertheless agreed with the panel majority that the warrant at issue could not be enforced
`as to communications stored on servers located abroad given the lack of any indication that
`Congress had considered the implications of such an application of the statute, particularly as to
`communications belonging to foreign nationals.
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`11 See In re Search of Content that Is Stored at Premises Controlled by Google Inc. and as
`Further Described in Attachment A, No. 16-mc-80263 (N.D. Cal. Aug. 14, 2017), aff’g 2017 WL
`In
`re Search of
`Info. Associated with
`1487625
`(N.D. Cal. Apr. 25, 2017);
`[Redacted]@gmail.com that Is Stored at Premises Controlled by Google, Inc., No. 16-mj-757,
`2017 WL 3445634 (D.D.C. July 31, 2017), aff’g 2017 WL 2480752 (D.D.C. June 2, 2017); In re
`Search of Info. Associated with Accounts Identified as [Redacted]@gmail.com and Others
`Identified in Attachment A that Are Stored at Premises Controlled by Google Inc., No. 16-mj-
`2197, 2017 WL 3263351 (C.D. Cal. July 13, 2017); In re Search Warrant to Google, Inc., Mag.
`No. 16-4116, 2017 WL 2985391 (D.N.J. July 10, 2017) (objections filed); In re Two Email
`Accounts Stored at Google, Inc., No. 17-M-1235, 2017 WL 2838156 (E.D. Wisc. June 30, 2017)
`(objections filed); In re Search of Premises Located at [Redacted]@yahoo.com, No. 17-mj-1238
`(M.D. Fla. Apr. 7, 2017); In re Search Warrant No. 16-960-M-01 to Google, 232 F. Supp. 3d
`708 (E.D. Pa. Feb. 3, 2017).
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 13 of 24
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`Having withheld the foreign-stored communications and information the government
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`seeks based on the Microsoft decision, Google urges this Court to follow a variation of the panel
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`majority’s extraterritoriality analysis in this case. As in the Microsoft case, there is no dispute as
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`to the first step of the extraterritoriality analysis. The parties here agree that § 2703 gives no
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`indication Congress intended for that provision to apply extraterritorially. See Google’s Br. 3;
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`Government’s Opp’n Br. 18. The dispute instead centers on the second step of the analysis, at
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`which the Court must determine whether this case involves a domestic application of the SCA by
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`identifying the focus of the statute and where “the conduct relevant to the statute’s focus”
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`occurred. RJR Nabisco, 136 S. Ct. at 2101.
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`Google argues the focus of the SCA is on protecting the privacy of electronic
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`communications. As to § 2703 in particular, Google argues this provision protects the privacy of
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`communications and other subscriber data by requiring the government to obtain one of the
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`enumerated forms of legal process in order to compel a provider to disclose such information.
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`Google maintains that where the required form of process is a warrant, the conduct relevant to
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`the SCA’s privacy focus includes the search and seizure process Google must undertake in order
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`to disclose the requested communications to the government—i.e., the searching, accessing, and
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`retrieval of the compelled communications—a process that, in Google’s view, occurs primarily
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`where the communications are stored. In making this argument, Google emphasizes the SCA’s
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`use of the term warrant, asserting that in using this term of art, Congress would have intended to
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`convey the term’s widely accepted meaning as “a form of legal process authorizing the execution
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`of a search of private places and a seizure of private things,” and that such places and things
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`must be located in the United States to be within a warrant’s territorial reach. See Google’s
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`Reply Br. 3-4.
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`Case 2:16-mj-01061-JS Document 73 Filed 08/17/17 Page 14 of 24
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`The government disputes Google’s characterization of the warrant authorized by § 2703,
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`arguing an SCA warrant is not a traditional search warrant but its own form of process. The
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`government contends that unlike a traditional warrant, which is executed with respect to a place,
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`an SCA warrant is directed to a person—the service provider from which the government seeks
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`to compel disclosure of subscriber information. In the government’s view, because an SCA
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`warrant operates with respect to a person, rather than a place, so long as the enforcing court has
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`personal jurisdiction over the provider, the warrant may be enforced to reach information in the
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`provider’s custody or control, regardless of the location of the information, consistent with the
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`law governing other forms of compelled disclosure. As to the Supreme Court’s extraterritoriality
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`framework, the government argues the focus of § 2703 is compelled disclosure, as disclosure is
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`the end result of each of the forms of process outlined therein and is thus the basic conduct the
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`statute regulates. The government maintains the conduct relevant to the compelled disclosure
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`focus is the compulsion, which “occurs in the United States, on United States providers, and in
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`United States courts.” Gov’t’s Opp’