Google Inc. on Friday lost another attempt to block a warrant seeking emails stored outside the United States, just a week after the Department of Justice asked the U.S. Supreme Court to examine the limits of law enforcement access to foreign-stored data.
In an 11-page order, U.S. Magistrate Judge William Duffin of the Eastern District of Wisconsin wrote that just because Google stores email data at different locations around the globe at any given moment does not mean that enforcing the warrant raises “extraterritoriality” concerns.
“[E]lectronic data, especially data that exists within a free-flowing international information infrastructure, cannot be fairly equated to physical property,” the judge wrote. He added that this is “especially true” given the way Google automatically shuffles data for network efficiency. “In fact, the location of where data is stored at any given moment is so abstruse that even Google sometimes cannot determine whether the data is located inside the United States.”
He also said ordering the data to be transferred to the U.S., in and of itself, does not impinge on a user’s privacy rights under the Fourth Amendment. The underlying warrants pertain to criminal suspects who have been indicted in Wisconsin, according to the ruling.
Duffin is only the latest magistrate judge to deny an attempt by Google to block a warrant for data stored abroad. Google has consistently challenged those decisions, seeking review by district judges. But so far a district court judge has yet to rule on the issue.
The internet giant has been relying primarily on a decision by the U.S. Court of Appeals for the Second Circuit last summer, which held that prosecutors could not get access to emails stored in a Microsoft Corp. data center in Ireland pursuant to a normal warrant. The Department of Justice on June 23 petitioned the U.S. Supreme Court to overturn that decision, arguing that it reflected a flawed interpretation of the Stored Communications Act, a statute enacted in 1986.
Google and other tech companies have argued the law needs to be updated, and have made clear they do not object to cooperating with legitimate investigations by U.S. authorities. But they have expressed worry about being caught in a conflict of laws, and the possibility that authorities in other nations might similarly demand that they turn over data regardless of where it is stored.
Contact Ben Hancock at email@example.com.