Google, Mountain View Jason Doiy / The Recorder
A U.S. district court judge for the District of Columbia has ordered Google Inc. to turn over  emails stored on a foreign server, becoming the first judge at that level to explicitly reject a landmark appeals court ruling limiting law enforcement access to overseas data.
 
U.S. District Chief Judge Beryl A. Howell of the District of Columbia ruled in an  opinion unsealed last Friday that ordering Google to comply with a search warrant for data stored overseas associated with a suspect’s Gmail account was not an unlawful extraterritorial application of the Stored Communications Act (SCA).
 
In doing so, Howell explicitly rejected the holding of the  Second Circuit Court of Appeals decision last year in a case involving Microsoft, which said U.S. authorities could not enforce a warrant on the tech giant to turn over emails stored on a server in Ireland.
 
“For the reasons that follow, the Microsoft court erred: [a] SCA warrant that seeks records or the content of electronic communications from a U.S.-based service provider does not amount to an extraterritorial application of the SCA, even when the targeted information, in whole or in part, may be stored on servers abroad,” Howell wrote in the Aug. 4 opinion.
 
“Basic notions of enforcement jurisdiction combined with the plain language of the statute,” the judge added, confirm that the court with jurisdiction over the offense being investigated may issue a warrant under the SCA to retrieve data from a U.S.-based service provider.
 
A number of magistrate judges in courts around the country have  handed similar losses to Google, which has then challenged those rulings. But Howell is the first Article III judge to rule on the matter in this line of litigation.
 
The decision tees up a fight over the issue at the U.S. Court of Appeals at the D.C. Circuit. The issue has also percolated up to district judges in California, in the Ninth Circuit, and in Pennsylvania, in the Third Circuit, although they have yet to rule. Howell’s ruling could also mean that the U.S. Department of Justice will not have to keep having the same fight in courts around the country under the collateral estoppel doctrine.
 
On Thursday in San Francisco, U.S. District Judge Richard Seeborg of the Northern District of California said he was also inclined to rule in the government’s favor on the issue by affirming a magistrate judge’s order in April directing Google to produce data stored abroad.
 
Seeborg said he disagreed with arguments by Google’s lawyer, Todd Hinnen of Perkins Coie, that enforcing a warrant for the data would involve a prohibited extraterritorial application of the law. “The response to the warrant is occurring in the United States,” Seeborg said, noting that Google has access to the files through its headquarters in Mountain View.
 
The judge also pointed out that the Second Circuit’s decision was controversial, with the initial panel split 2-1 and the government’s petition for rehearing en banc being denied by a tied 4-4 decision. Seeborg said the dissenters in that en banc decision—who  feared the panel majority’s ruling would undermine public safety—”have the better argument.”
 
Google has  maintained that Congress should amend the SCA to allow closer cooperation between international law enforcement authorities and prevent conflict-of-law issues in different jurisdictions.
 
The Department of Justice in June  petitioned the U.S. Supreme Court to overturn the Microsoft decision, arguing it was “inconsistent with this court’s framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement.”
 
Google did not immediately respond to a request for comment on Thursday.