SAN FRANCISCO — Google Inc. has told the U.S. government it will comply with new warrants for data stored on its overseas servers, as long as they are not issued by courts within the Second Circuit, the Department of Justice said in a filing Wednesday.
The development marks a reversal of the company’s legal strategy on the issue of law enforcement access to data stored abroad. Google over the past year has waged a losing battle in courts across the country arguing that U.S. authorities cannot use a domestic warrant to get data stored internationally under Section 2703 of the Stored Communications Act, or SCA.
The U.S. Court of Appeals for the Second Circuit, in a controversial decision in 2016, ruled in favor of that argument in a case involving emails stored on a Microsoft server in Ireland. The DOJ revealed Google’s policy shift in a reply brief to the U.S. Supreme Court seeking to overturn the Microsoft decision.
Noting that 11 other magistrate and district judges have rejected Google’s arguments, DOJ lawyers wrote: “In the wake of those decisions, Google has reversed its previous stance and informed the government that it will comply with new Section 2703 warrants outside the Second Circuit (while suggesting that it will appeal the adverse decisions in one or more existing cases).”
“Consequently, the government’s ability to use Section 2703 warrants to obtain communications stored abroad—which may contain evidence critical to criminal or national-security investigations—now varies depending on the jurisdiction and the identity of the provider,” the department added.
Google did not immediately respond to a request for comment. But it has offered public indications that it is now selectively pursuing its legal battle over the reach of the SCA.
In a filing dated Sept. 5 and unsealed Wednesday, U.S. District Chief Judge Beryl Howell of the District of Columbia teed the issue up for appeal in the D.C. Circuit by entering a contempt order against Google for declining to comply with a warrant for data stored overseas. Howell was the first district judge to direct Google to comply with such a warrant since the Second Circuit’s ruling in the Microsoft case. Google also laid the ground for an appeal in the Ninth Circuit by asking for a similar order in a filing Wednesday in the U.S. District Court for the Northern District of California.
Meanwhile, in a similar case in the Eastern District of Pennsylvania, Google on Aug. 31 asked for a one-week extension to comply with a judge’s ruling ordering it to comply. No further filings had been made in the case since that extension was granted the same day.
The company has lost its legal challenges in part due to its position that U.S. law enforcement cannot access data stored abroad even if they go through the appropriate diplomatic channels. That’s because Google’s algorithm moves data automatically for network efficiency purposes, meaning even company officials often don’t know exactly where the data are.
Google, Microsoft and other tech companies have argued that Congress should amend the SCA to avoid conflict-of-law issues with other countries where data may be stored, and facilitate better cooperation between international law enforcement authorities.