Printer Friendly

PRIVACY LAW - Warrants for Data Stored Abroad Do Not Constitute Unlawful Extraterritorial Applications of the Stored Communications Act - In re Search Warrant No. 16-960-M-l to Google; In re Search Warrant No. 16-1061-M to Google.

PRIVACY LAW--Warrants for Data Stored Abroad Do Not Constitute Unlawful Extraterritorial Applications of the Stored Communications Act--In re Search Warrant No. 16-960-M-l to Google; In re Search Warrant No. 16-1061-M to Google, 275 F. Supp. 3d 605 (E.D. Pa. 2017), affg 232 F. Supp. 3d 708 (E.D. Pa. 2017).

The Stored Communications Act (SCA) authorizes the government to obtain warrants compelling internet service providers to disclose stored user data. (1) When the statute was enacted decades ago, however, Congress could not anticipate data in the cloud. (2) In In re Search Warrants to Google, Nos. 16-960-M-1 and 16-1061-M, (3) the District Court for the Eastern District of Pennsylvania addressed whether warrants requiring the production of foreign-stored data constitute unlawful extraterritorial applications of the SCA. (4) Affirming the Magistrate Judge's decision, the Court concluded the warrants constitute permissible domestic applications of the statute. (5)

In August 2016, two Magistrate Judges in the Eastern District of Pennsylvania issued SCA warrants to Google in two separate wire fraud investigations. (6) The company partially complied with the warrants by producing data it confirmed was stored on servers in the United States. (7) In withholding foreign-stored data, Google relied on the recent decision in In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp. (Microsoft), where the Second Circuit held the SCA does not authorize a warrant against a United States-based service provider for the contents of a user's electronic communications stored on overseas servers. (8) The government moved to compel, and the two matters involving Google were consolidated. (9) On February 3, 2017, Federal Magistrate Judge Thomas J. Rueter issued a Memorandum of Decision and Order, granting the government's motions to compel and concluding the search warrants issued to Google do not constitute extraterritorial applications of the SCA. (10)

In reaching this conclusion, Judge Rueter disagreed with the Second Circuit's extraterritoriality analysis in Microsoft, (11) He assumed, arguendo, the SCA's warrant provisions are intended to protect privacy, as the Second Circuit concluded, but he focused on where the invasions of privacy would take place. (12) He reasoned the electronic transfer of data from a server in a foreign country to Google's data center in California does not amount to a "seizure" under the Fourth Amendment because there is no "meaningful interference with the account holder's possessory interest in the user data." (13) Additionally, Judge Rueter reasoned the electronic data transfer does not amount to a "search" under the Fourth Amendment because "the actual infringement of privacy occurs at the time of disclosure in the United States." (14) In issuing the Order to Compel, Judge Rueter also addressed other considerations, including the risk to international comity. (15) Google objected to Judge Rueter's Order and sought review of his extraterritorial analysis in the district court. (16)

Analysis of extraterritoriality starts with the longstanding presumption against the extraterritorial application of United States statutes. (17) In several recent decisions, the Supreme Court of the United States has reaffirmed this presumption and applied it to several statutes. (18) The Court has established a two-part framework (the "Morrison/RJR Nabisco framework") to determine the geographical scope of federal statutes. (19) Under this framework, the first step is to see if a statute has a "clear indication of extraterritoriality" to rebut the presumption. (20) If a Statute does not clearly indicate congressional intent that it applies extraterritorially, the second step is to determine whether the particular case involves a domestic or extraterritorial application of the statute. (21) To make this determination, a court must examine the "focus" of the statute and then determine whether conduct relevant to the statute's focus occurred in the United States or in a foreign country. (22)

The Second Circuit applied the Morrison/RJR Nabisco framework in Microsoft to determine the geographical scope of the SCA. (23) Applying the first part of the framework, the Microsoft court found no indication in the statute that it applies abroad. (24) In the second part of the framework, the court concluded the focus of the statute is privacy and the actions relevant to privacy occurred in a foreign country. (25) Nevertheless, the Second Circuit held the warrant requiring the production of foreign-stored user data constituted an impermissible extraterritorial application of the SCA. (26) The Second Circuit is the only appellate court to consider the extraterritorial application of the SCA, but lower courts in other circuits have uniformly disagreed with the Second Circuit's extraterritorial analysis. (27) Similarly, the denial of rehearing in the Second Circuit generated four separate dissents by judges who agreed that requiring a domestic service provider to disclose information in the provider's possession, which the provider can access from the United States, constitutes a domestic application of the statute's warrant provision, regardless of where the provider has elected to store the information. (28)

In considering whether the SCA applies extraterritorially in cases involving data stored on foreign servers, judges have focused on the SCA's warrant provision. (29) Traditional search warrants have territorial limitations. (30) Judges have reasoned, however, that an SCA warrant is not a traditional search warrant. (31) Although it has the procedural protection of a traditional warrant--a judicial finding of probable cause--it functions like a subpoena, requiring the recipient to collect information and deliver it to the government. (32) Additionally, courts have analyzed cases involving emails in the context of traditional Fourth Amendment search and seizure cases. (33) Courts and commentators have also addressed the novel jurisdictional issues, finding that data stored in the cloud may be subject to multiple jurisdictions at the same time. (34)

In considering the government's request for data stored in the Cloud, the District Court in Google applied the extraterritoriality analysis set out by the Supreme Court. (35) In the first part of the Morrison/RJR Nabisco framework, the District Court concluded the SCA does not contain clear evidence of Congressional intent to rebut the presumption against extraterritoriality, because the statute does not indicate it should apply outside the United States. (36) In the second part of the framework, the Court analyzed [section] 2703, the statute's warrant provision. (37) The Court reasoned the "repeated emphasis on disclosure" throughout this section makes it clear "a provider's disclosure to the government is the conduct the statute seeks to regulate." (38) The Court further reasoned the conduct relevant to this statutory focus will occur in the United States, where Google is located, regardless of where Google chose to store the data. (39) In reaching this conclusion, the Court emphasized the document retrieval process would be handled remotely and controlled by United States-based employees at Google. (40)

In its extraterritoriality analysis, the Court also emphasized SCA warrants are different from traditional search warrants. (41) Unlike traditional search warrants, an SCA warrant is issued with respect to a person (the service provider) rather than a place (the data center). (42) An SCA warrant does not authorize law enforcement agents to search a provider's premises and seize evidence. (43) Instead, the warrant requires a service provider to disclose to law enforcement agents the contents of electronic communications the service provider possesses. (44) The Court reasoned an SCA warrant operates like a subpoena, and a court with personal jurisdiction over a party can enforce a subpoena for records the party possess or controls, no matter where the party may have stored the records. (45) The Court thus agreed with the Magistrate Judge's conclusion, which required Google to produce data stored on servers outside the United States. (46)

In reaching this conclusion, the Court interpreted the statute to avoid what the Magistrate Judge had described as an "unreasonable result" that would limit the government's ability to obtain data stored by Google outside the United States. (47) To determine whether the statute applies abroad the Court correctly applied the Supreme Court's two-step Morrison/RJR Nabisco framework. (48) The Court correctly concluded there was no clear indication of Congressional intent to apply the statute outside the United States. (49) However, to avoid an unreasonable result, the Court imagined the statute Congress might have enacted if it had contemplated cloud storage technology. (50) In short, the Court engaged in exactly the kind of speculation and "divining what Congress would have wanted" that the Supreme Court has prohibited in extraterritoriality law. (51) The Court interpreted the statute to allow the government to obtain data Google stores overseas. (52)

For example, the Court concluded the word "warrant" in the statute did not really mean "warrant." (53) To get around the territorial limitations of a warrant, the Court reasoned SCA warrants are "closely analogous" to subpoenas. (54) The Court further reasoned SCA warrants, like subpoenas, can reach records no matter where they are located "without raising extraterritoriality concerns." (55) A major problem in this line of reasoning, however, is that "warrant" is a term of art widely understood to have territorial limitations. (56) Congress deliberately used the word "warrant," and as the Supreme Court has explained, when Congress employs a term of art, Congress "presumably knows" the meaning of the term and its connotations. (57)

Because the SCA warrant requires Google to search for the requested data, the Court reasoned there would be no extraterritorial search in Fourth Amendment terms. (58) Similarly, the Court reasoned there would be no extraterritorial seizure in Fourth Amendment terms because the government would examine the data when Google produced it in the United States. (59) The Court did not address the fact that information in the emails is the property of the system user; nor did the Court address the fact that the user has an expectation of privacy, and the user did not consent to Google's moving the information to another datacenter for the express purpose of disclosing it. (60) The Court also did not review the complex steps which Google must carry out in a foreign country in order to produce the information in the United States. (61) Instead, the Court emphasized that Google personnel in the United States would initiate and control the data retrieval process. (62) However, this does not alter the fact that Google, at the government's direction, would actually seize private property (information) stored at a location outside the United States. (63)

In affirming the Magistrate Judge's Order that the Google warrants involve permissible domestic applications of the SCA, the Pennsylvania District Court avoided an unreasonable result. To reach the reasonable conclusion, however, the Court had to twist the language of the statute and stress certain facts, while ignoring others. The Court's reasoning is not surprising, as the statute does not address--and could not possibly address--the international character of twenty-first century cloud storage technology. The Court sidesteps this problem and lays out a roadmap, though flawed, for other courts to follow in similar cases. But this roadmap is no longer necessary as the CLOUD Act, just enacted by Congress and signed by the President, now clarifies the statute. (64) Congress' clarification makes clear the Pennsylvania District Court reached the right result: warrants for data stored abroad do not constitute unlawful extraterritorial applications of the SCA.

(1.) See Stored Communications Act [hereinafter SCA]. Pub. L. No. 99-508, Tit. II, 100 Stat. 1860 (Oct. 21,1986) (18 U.S.C.A. 2701) et. seq. (outlining unlawful access to communications). The SCA was enacted as Title Two of the Electronic Communications Privacy Act of 1986 [hereinafter ECPA]. Id. Section 2703 of the SCA regulates government access to stored communications. Id. [section] 2703. Under S 2703:
   A governmental entity may require the disclosure by a provider ...
   of the contents of a wire or electronic communication, that is ...
   in an electronic communications system for one hundred and eighty
   days or less, only pursuant to a warrant issued using the
   procedures described in the Federal Rules of Criminal Procedure....


Id. [section] 2703(a). Similarly, S 2703(b) and [section] 2703(c) authorize the government to obtain disclosure of particular information upon a particular showing. Id. [section][section] 2703(b), (c). Congress enacted the SCA in part .o provide protections for electronic communications analogous to those provided by the Fourth Amendment. Id. S 2701. The Supreme Court of the United States has held the Fourth Amendment does not protect information voluntarily disclosed to third parties (the third-party doctrine). See Smith v. Maryland, 442 U.S. 735, 743 (1979) (explaining Court's holding). The "Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Id. In Smith, the Court reasoned the Petitioner could not claim a "legitimate expectation of privacy" in telephone numbers because he "voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business." Id. at 744. See United States v. Miller, 425 U.S. 435, 442 (1976) (describing Court's view on expectations of privacy). The Court concluded the Respondent had "no legitimate 'expectation of privacy'" in information he "voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." Id. See 132 Cong. Record S7993 (daily ed. June 19, 1986) (statement of Sen. Leahy, co-sponsor of Senate bill) (explaining statute protects "legitimate law enforcement needs while minimizing intrusions on the privacy of systems users"). In the SCA, Congress sought to balance the government's need to obtain information in criminal investigations with the business interests of system providers and the privacy needs of their customers. Id.

(2.) See Elec. Commc'n Privacy: Hearing on S. 1667 Before the Subcomm. on Patents, Copyrights, and Trademarks of the S. Comm. on the Judiciary, 99th Cong. 39 (1985) available at https://www.justice.gov/sites/default/files/jmd/legacy/2014/0719/ hear-j-99-72-1985.pdf (statement of Rep. Kastenmeier, lead sponsor of House bill) (explaining avoidance of technological terms in statute). Congress avoided technological terms in the SCA "for the purpose of making the law endure the test of time and presumably comprehend new technologies as they evolve." Id. In enacting the SCA, Congress intended the statute to apply to new technologies as they evolved. Id. Today the SCA is generally regarded as outdated. Id. See In re Two Email Accounts Stored at Google, Inc., No. 17-M-1235, 2017 U.S. Dist. LEXIS 101691, slip op. at *1 (E.D. Wis. June 30, 2017) (emphasizing SCA enacted when "internet did not exist in any practical sense and email was in its infancy"). Recently, Congress held hearings on amending ECPA and the SCA. Id. See U.S. House of Representatives Judiciary Comm., Hearing: Data Stored Abroad: Ensuring Lawful Access and Privacy Protection in the Digital Era (June 15, 2017) available at https://judiciary.house.gov/hearing/ data-stored-abroad-ensuring-lawful-access-privacy-protection-digital-era/ (considering legislation to clarify extraterritorial reach of SCA). See International Communications Privacy Act (ICPA), H.R. 3718, 115th Cong. (1st Sess. 2017) (sponsored by Rep. Collins and co-sponsored by Rep. Jeffries, Rep. DelBene, and Rep. Issa) (protecting privacy of electronic communications); International Communications Privacy Act (ICPA), S. 1671, 115th Cong. (1st Sess. 2017) (sponsored by Sen. Hatch and cosponsored by Sen. Coons and Sen. Heller) (modernizing SCA). See proposed 18 U.S.C. [section] 2703A(d)(2)(A) (prohibiting government from compelling disclosure of certain data stored outside United States). Under this proposed provision, the government cannot compel disclosure of data if the owner is not a citizen or lawful permanent resident of the United States, or is not physically located in the United States. Id. See Press Release by U.S. Senator Orrin Hatch available at https://www .hatch.senate.gov/public/index.cfm/releases?ID=1182BDBA-B7F4-4 AD5-881F6F1COCOE7FC1 (urging Congress to pass ICPA because U.S. laws "need to keep up with emerging technology"). See also Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373, 418 (2014) (arguing Congress should deal directly with extraterritoriality problem); Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1209 (2004) (outlining SCA's structure and suggesting statutory changes). See Consolidated Appropriations Act, 2018, H.R. 4943, 115th Cong., 2d Sess. (2018) (discussing data privacy). On March 23, 2018, the President signed the Consolidated Appropriations Act. Id. Division V of that legislation is the CLOUD Act, which amends the SCA by adding 18 U.S.C.A. 2713. Id. The new statutory section states:
   A provider of electronic communication service or remote computing
   service shall comply with the obligations of this chapter to
   preserve, backup, or disclose the contents of a wire or electronic
   communication and any record or other information pertaining to a
   customer or subscriber within such provider's possession, custody,
   or control, regardless of whether such communication, record, or
   other information is located within or outside of the United
   States.


Id. [section] 103(a). Additionally, the CLOUD Act establishes a statutory comity analysis under which a service provider may move to modify or quash a [section] 2703 disclosure in certain circumstances. Id. S 103(b).

(3.) See In re Search Warrant No. 16-960-M-1 to Google; In re Search Warrant No. 16-1061-M to Google, 275 F. Supp. 3d 605 (E.D. Pa. 2017), affg 232 F. Supp. 3d 708 (E.D. Pa. 2017) [hereinafter Google].

(4.) See Google, 275 F. Supp. 3d at 611 (explaining issue in case). As the Court explained, the issue is "whether enforcing the SCA warrants in question to require Google to produce communications and other subscriber data stored on servers located outside the United States constitutes an extraterritorial application of the statute." Id.

(5.) See id. at 606 (agreeing with Magistrate Judge's conclusion). The Court stated "fully enforcing the warrants as to the accounts in question constitutes a permissible domestic application of the SCA." Id.

(6.) See id. (describing Google and SCA warrants). Google is a United States-based technology company with its headquarters in California. Id. The company offers various online and communications services, including email. Id. Both warrants were directed to Google at its headquarters in California, and Google's response to the warrants was handled by the company's Legal Investigations Support Team in California. Id. at 607. Both Magistrate Judges who issued warrants to Google found the government had demonstrated probable cause to believe evidence of domestic wire fraud existed in certain Google accounts. Id. at 606. The warrants required the company to disclose to the Federal Bureau of Investigation (FBI) electronic communications and other records and information associated with four Google accounts belonging to United States citizens. Id.

(7.) See id. at 607 (describing Google's data storage network). Google stores user data in various locations in the United States and abroad. Id. As a result, data for a particular user may be stored outside of the country where the user is located. Id. The location of data may also change at any time based on the needs of the network. Id. In order to optimize network performance, reliability and efficiency, the company "operates a 'state-of-the-art intelligent network"' that automatically moves data from one location to another. Id. at 607. Between the time the government seeks a warrant and the time the warrant is served on Google, the network may change the location of relevant data. Id. Moreover, a user's data may be stored in multiple locations due to a process called "sharding." Id. Google's network breaks some individual user files into component parts called "shards," which the network stores in different locations in different countries. Id. Additionally, individual shards do not make sense. See id. at n. 1. (explaining "sharding" process). "[T]his 'sharding' process generates individual shards that are incomprehensible on their own and become comprehensible only when the file is fully reassembled." Id.

(8.) See In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016) [hereinafter Microsoft], r'hring denied 855 F.3d 53 (2d Cir. 2017) [hereinafter Microsoft R'hring], cert, granted sub nom-, United States v. Microsoft Corp., No. 17-2, 2017 WL 2869958 (U.S. Oct. 16, 2017) (discussing Microsoft decision). See Brief for Petitioner at 1, Microsoft 829 F.3d at 197 (No. 17-2) (urging Court to Vacate appellate judgment and remand). After recent passage of the CLOUD Act, the government obtained a new search warrant. Id. at 9. As the government explains, "[tjhere is thus no longer any live dispute between the parties, and the case is now moot." Id. See Response to Petitioner at 1, Microsoft 829 F.3d at 197 (No. 17-2) (agreeing with government's motion). Microsoft does not oppose the government's motion to vacate and remand the case and agrees there is no longer a live case or controversy between the parties. Id. at 1-2. See SCOTUSblog, http://www.scotusblog.com/case-files/cases/united-states-vmicrosoft-corp/ (last visited Apr. 11, 2018) (outlining Microsoft proceedings). See Per Curiam 584, U.S.__(2018) (ruling case has become moot). In a per curiam opinion issued on April 17, 2018, the Supreme Court vacated the judgement below and remanded the case to the Second Circuit with instructions to vacate the district court's contempt finding and its denial of Microsoft's motion to quash and to direct the district court to dismiss the case as moot. Id. See Microsoft 829 F.3d at 210 (relying on Microsoft opinion). Google asserted that, as in Microsoft, an SCA warrant "lawfully reaches only data stored within the United States." See id. Prior to the Microsoft decision, Google complied with federal search warrants seeking user data stored on servers located outside the United States. Id. The Magistrate Judge also noted significant differences between the Google electronic system and Microsoft's system. Id. at 724. Noting in the Google system the location of data is determined by the "working of an automatic computer algorithm aimed at creating network efficiency." Id. In Microsoft, the government could also request data at issue through the Mutual Legal Assistance Treaty (MLAT) process. Id. In Google, the government could not request assistance from a foreign nation to access user data because Google's network "shards" data and automatically moves it from one location to another. Id.

(9.) See Microsoft 829 F.3d at 710 (discussing Government's movement to compel).

(10.) See id. (summarizing Judge Rueter's conclusion). See also Orin Kerr, Google Must Turn Over Foreign-Stored Emails Pursuant to a Warrant, Court Rules, Washington Post (Feb. 3, 2017), available at https://www.washingtonpost.com/news/vol okh-conspiracy/wp/2017/02/03/google-must-turn-over-foreign-stored-e-mails-pursuant-to-a-warrant-court- rules/?utm_term=.8250acadc750 (discussing Microsoft decision).

(11.) See In re Search Warrant No. 16-960-M-l to Google; In re Search Warrant No. 16-1061-M to Google, 232 F. Supp. 3d 708, 713-18 (E.D. Pa. 2017) (disagreeing with Second Circuit's extraterritorial analysis).

(12.) See id. at 719 (explaining Court's view). The "[C]ourt agrees with the Second Circuit's reliance upon Fourth Amendment principles, hut respectfully disagrees with the Second Circuit's analysis regarding the location of the seizure and the invasion of privacy." Id.

(13.) See id. at 720 (explaining Google regularly transfers user data from one data center to another without customers' knowledge). Judge Rueter reasoned such transfers do not interfere with customers' access or possessory interest in their data. Id. He further reasoned any potential interference resulting from such transfers is "de minimis and temporary." Id. Judge Rueter also noted circuit courts have held photocopying documents and taking photographs of materials do not constitute a "seizure" under the Fourth Amendment because those actions do not "meaningfully interfere with the owners' possessory interest." Id. Amici in Google disagreed with Judge Rueter's reasoning. Id. See Brief for Amici Curiae Microsoft Corporation, Amazon .com, Cisco Systems, Inc. and Apple Inc. in Support of Google, Inc., at 9 (March 10, 2016) (arguing Supreme Court has recognized seizures of intangible property "absent interference with any right of access"). See Katz v. United States, 389 U.S. 347, 354 (1967) (listening and recording telephone conversations constitute both search and seizure). See Berger v. New York, 388 U.S. 41, 59 (1967) (holding electronic audio recording device seized "communications, conversations, or discussions" when recorded).

(14.) See Google, 232 F. Supp. 3d at 721 (explaining when invasion of privacy occurs). "[T]he actual invasion of the account holders' privacy--the searches--will occur in the United States" when the government views the stored data produced in response to the warrants. Id.

(15.) See id. at 723 (concluding there was no risk to international comity because "searches will be conducted" within United States). Additionally, Judge Rueter noted that even if searches interfered with a foreign state's sovereignty, "the fluid nature of Google's cloud technology makes it uncertain which foreign country's sovereignty would be implicated when Google accesses the content of communications in order to produce it in response to legal process." Id. See Microsoft R'hring, 855 F.3d 53, 66, n. 23 (2d Cir. 2017) (Cabranes J., dissenting) (recognizing court's limitations of extraterritorial application). A court is not permitted "to conclude that a particular application of a statue is extraterritorial simply because it believes that the application threatens international comity." Id. In the Microsoft case, Ireland believes the United States government should work through the MLAT process to obtain the information it seeks. Id. See Brief for Ireland as Amicus Curiae in Support of Neither Party at 2, United States v. Microsoft Corporation, 855 F.3d 53 (2d Cir. 2017) (No. 172) (arguing reasons for MLAT procedures). "[T]he procedures provided for in the MLAT represent the most appropriate means to address requests such as those which are the object of the warrant in question." Id. Moreover, the European Union has expressed concerns about transferring personal data to any non-European country. Id. See Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party at 5, In re Microsoft, 829 F.3d 197 (2d Cir. 2016) (No. 17-2) (explaining the General Data Protection Regulation (GDPR) rules). The GDPR rules in the European Union are designed "to ensure that the high level of data protection within the European Union is ensured where personal data is transferred to a non-EU state." Id. See also Paul M. Schwartz and Karl Nikolaus Peifer, Transatlantic Data Privacy Law, 106 Geo. L. J. 115, 117 (2017) (analyzing GDPR); Russell Hsiao, Implications for the Future of Global Data Security and Privacy: The Territorial Application of the Stored Communications Act and the Microsoft Case, 24 Cath. U. J. L. & Tech 215, 217 (2015) (analyzing implications of extraterritorial application of SCA on relations between United States and other countries); Paul M. Schwartz and Daniel J. Solove, Reconciling Personal Information in the United States and European Union, 102 Cal. L. Rev. 877, 877 (2014) (arguing privacy differences between European Union and United States). The GDPR becomes binding in 2018 and "set[s] strict limits on transfers of personal data to any non-EU country [--including the United States--] that lacks significant privacy protections." Schwartz & Peifer, supra, at 117. Privacy is regarded as a "fundamental right" in the European Union, while "[i]n the United States, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions." Schwartz & Solove, supra, at 877.

(16.) See In re Search Warrant No. 16-960-M-l to Google; In re Search Warrant No. 16-1061-M to Google, 275 F. Supp. 3d 605, 616 (E.D. Pa. 2017) (seeking review of extraterritorial analysis).

(17.) See Equal Employment Opportunity Commission v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (describing presumption against extraterritoriality as "longstanding principle of American law"). As the Court explained, "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Id. See Morrison v. Nat'l Austl. Bank, Ltd.. 561 U.S. 247, 255 (2010) (recognizing federal law "is primarily concerned with domestic conditions"). See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016) (noting presumption reflects "more prosaic commonsense notion that Congress generally legislates with domestic concerns in mind"). See Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 116 (2013) (explaining reasoning behind presumption). The presumption ensures courts do not "erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches." Id. See also Daniel Sullivan and Kevin Benish, Statutory Interpretation and the Morrison Presumption Against Extraterritoriality, The United States Law Week, 85 U.S.L.W. 1290 (Mar. 23, 2017), available at http://www.hsgllp.com/media/ news/23_HSG_Sullivan%20Benish%20Bloomberg%20BNA%20Reprint.pdf (reviewing cases where Supreme Court and Courts of Appeals have applied presumption against extraterritoriality).

(18.) See RJR Nabisco, 136 S. Ct. at 2101-03 (applying presumption against extraterritoriality to Racketeer Influenced and Corrupt Organizations Act (RICO)). In RJR Nabisco, the Court reasoned a RICO violation requires proof of a pattern of racketeering activity, which consists of two or more "predicate acts." Id. at 2108. Predicate acts are violations of other federal or state laws, some of which expressly apply extraterritorially. Id. at 2101-02. The Court further reasoned a violation of RICO "may be based on a pattern of racketeering [activity] that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterritorial." Id. at 2103. Therefore, the Court concluded certain provisions of RICO apply abroad. Id. See Kiobel, 133 S. Ct. at 1665-69 (applying presumption against extraterritoriality to Alien Tort Statute (ATS)). In Kiobel, plaintiffs alleged foreign corporations had aided the Nigerian government in brutalizing Nigerian citizens in Nigeria. Id. The Kiobel Court held the ATS does not apply extraterritorially. Id. The Court reasoned the ATS permits courts to recognize claims against an alien for a tort committed in violation of the law of nations or a treaty of the United States. Id. Therefore, the Court concluded such violations affecting aliens could occur in or outside the United Slates. Id. at 1665. Because all the relevant conduct in Kiobel took place outside the United States, the Court ruled plaintiffs had no claim under the ATS. Id. See Morrison, 561 U.S. at 261-70 (applying presumption against extraterritoriality to Securities Exchange Act of 1934 (Securities Act)). In Morrison, foreign plaintiffs sued a foreign defendant for securities fraud in connection with stock transactions on a foreign stock exchange. Id. The Court concluded the Securities Act contains no clear indication the statute applies abroad. Id. The stock transactions at issue occurred on the Australian Stock Exchange, the Court ruled Section 10(b) did not apply to the facts in Morrison. Id. See also Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1098 (2015) (discussing Supreme Court's affirmation of presumption against extraterritoriality).

(19.) See Morrison, 561 U.S. at 255 (discussing first step in two-part framework). See RJR Nabisco, 136 S. Ct. at 2100 (concluding when "statute gives no clear indication of ... extraterritorial application, it has none"). See also William S. Dodge, The Presumption Against Extraterritoriality in Two Steps, 110 Am. J. Int'l L. 45 (2016) (analyzing Supreme Court's two-step framework to determine geographical scope of federal statutes).

(20.) See RJR Nabisco, 136 S. Ct. at 2101 (reasoning Court's analysis of extraterritoriality issues). A court must first determine "whether the presumption against extraterritoriality has been rebutted--i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially." Id. at 2093-94.

(21.) See id. (continuing two-step analysis). "If the statute is not extraterritorial, then at the second step [a court] determine[s] whether the case involves a domestic application of the statute...." Id.

(22.) See id. (explaining domestic application versus extraterritorial application). A court determines whether the case involves a domestic application of the statute by looking at the statute's "focus" and the location of relevant conduct. Id. The Supreme Court summed up the second part of the Morrison/RJR Nabisco framework as follows:
   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.


Id. at 2101. Thus, the second step of the Morrison/RJR Nabisco framework requires a court to determine the statute's "focus," and then determine whether the conduct "relevant" to the statute's focus occurred in the United States or abroad. Id.

(23.) See Microsoft, 829 F.3d 197, 210 (2d Cir. 2016) (explaining court's inquiry proceeds in two parts following "approach set forth in Morrison").

(24.) See id. (concluding court can answer first question "with relative ease").

(25.) See id. at 217 (reasoning plain meaning of statute's text and other aspects of statute "confirm its focus on privacy"). The court further reasoned since "the content subject to the Warrant is located in, and would be seized from, the Dublin datacenter, the conduct that falls within the focus of the SCA would occur outside the United States, regardless of the customer's location and regardless of Microsoft's home in the United States." Id. at 220.

(26.) See id. at 222 (noting warrant issued to Microsoft). Under the SCA, the warrant issued "may not lawfully be used to compel Microsoft to produce to the government the contents of a customer's e-mail account stored exclusively in Ireland." Id.

(27.) See, e.g., In re Search Warrant Issued to Google, Inc., 264 F. Supp. 3d 1268, 1272 (N.D. Ala. 2017) (reasoning Google's disclosure of data stored on foreign territory would constitute domestic application of SCA). Id. In re Search of Information Associated with [REDACTED]@gmail.com That Is Stored at Premises Controlled by Google, No. 17-7131 (D. Ariz. Aug. 21, 2017) (concluding location and domestic application). In re Search of Content Stored at Premises Controlled by Google, Inc., No 16-mc-80263, 2017 WL 3478809, at *5 (N.D. Cal. Aug. 14, 2017), affg 2017 WL 1487625, at *3 (N.D. Cal. Apr. 25, 2017) (concluding location of access and disclosure). The information sought by the government was "easily and lawfully accessed in the United States," and disclosure would also take place in the United States. Id. In re Search of Information Associated with [Redacted]@gmail.com That Is Stored at Premises Controlled by Google, Inc., No 16-mj-757, 2017 WL 3445634, at *54 (D. D.C July 31, 2017), affg 2017 WL 2480752 (D.D.C. June 2, 2017) (concluding relevant response to an SCA warrant is "disclosure" of customer information "inside the United States"); In re Search of Information Associated with Accounts Identified as fredactedl@gmail.com, 268 F. Supp. 3d 1060, 1070 (C.D. Cal. July 13, 2017) (holding SCA order of data disclosure from foreign servers as acceptable domestic application); In re Search Warrant to Google, Inc., No. 16-4116, 2017 WL 2985391, at *12 (D. N.J. July 10, 2017) (issuing warrant pursuant to SCA does not violate presumption against extraterritorial application of United States law); In re Search of Premises Located at [Redacted]@yahoo.com, No. 17-mj-1238, slip op. at 3 (M.D. Fla. Apr. 7, 2017) (concluding information as within domestic reach); In re Two Email Accounts Stored at Google, Inc., No. 17-M-1235, 2017 WL 2838156, at *4 (E.D. Wis. June 30, 2017) (finding order to disclose information was directed toward service provider within court's reach). The court noted where a service provider may store relevant data at any given moment "does not implicate extraterritoriality concerns." In re Two Email Accounts Stored at Google, Inc., 2017 WL 2838156, at *4. In re Information Associated with One Yahoo Email Address That Is Stored at Premises Controlled by Yahoo, No. 17-M-1234, 2017 WL 706307, at *3 (E.D. Wis. Feb. 21, 2017) (concluding importance of location in data retrieval process). "[W]hat matters is the location of the service provider" and the location where the service provider chooses to store customer data is "immaterial." Id.

(28.) See Microsoft R'hring, 855 F.3d 53, 62 (2d Cir. 2017) (Jacobs J., dissenting) (emphasizing reasons behind domestic application). "[I]f the recipient can access a thing here, then it can be delivered here; and if statutory and constitutional standards are met, it should not matter where the ones-and-zeroes are 'stored.'" Id. See id. at 66 (Cabranes J., dissenting) (concluding dissenting opinion). "Therefore, had the panel majority correctly identified the conduct relevant to the SCA's 'privacy focus,' it would have concluded that the warrant at issue was a domestic application of the SCA." Id. See id. at 70 (Raggi J., dissenting) (noting argument for domestic application). Justice Raggi argued:
   It is simply unprecedented to conclude that the presumption against
   extraterritoriality bars United States courts with personal
   jurisdiction over a United States person from ordering that person
   to produce property in its possession (wherever located) when the
   government has made a probable cause showing that the property is
   evidence of a crime.


Id. See id. at 75 (Droney J., dissenting) (reasoning in support of domestic application). Justice Droney reasoned:
   [T]he activity that is the focus of the disclosure aspects of the
   SCA would necessarily occur in the United States where Microsoft is
   headquartered and where it would comply with the [section] 2703
   warrant, not in the foreign country where it has chosen to store
   the electronic communications of its customers....


Id. See also Bret S. Cohen et. al., Access Wars: How the Second Circuit's Opinion in Microsoft v. United States Changes the Rules for Government Access to Data in Cross-Border Investigations, XXXIII Int'l L. Quarterly 12, 59 (2017) (concluding technology companies must continue to apply multiple standards to law enforcement requests for foreign-stored data); Alan Wehler, Microsoft Wins, Google Loses, and Confusion Reigns on Laws Surrounding Law Enforcement and Cloud Computing, The Chertoff Group (Feb. 7, 2017), available at https://www.chertoffgroup.com/ pointofview/109-the-chertoff-group-point-of-view/636-opinion-microsoft-wins-googleloses-and-confusion=reigns-on-law- surrounding-law-enforcement-and-cloud-comput- ing (discussing confusion around data retrieval and law enforcement); Ned Schultheis, Warrants in the Clouds: How Extraterritorial Application of the Stored Communications Act Threatens the United States Cloud Storage Industry, 9 Brook. J. Corp. Fin. & Com. L. 661 (2015) (arguing extraterritorial application of SCA would harm major U.S. information technology companies).

(29.) See 18 U.S.C. [section] 2703(a) (authorizing government to require service provider to disclose electronic communications and other records). Under S 2703(a) the government is authorized by means of a "warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction" to require disclosure. Id. See Federal Aviation Administration v. Cooper, 566 U.S. 284, 292 (2012) (analyzing Congressional use of terms of art). When Congress employs a term of art, Congress "presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken." Id. (quoting Morrissette v. United States, 324 U.S. 246, 263 (1952)). See also Kerr, supra note 2, at 1222 (describing [section] 2703's "rules for compelled disclosure"). Simplifying S 2703's "rules for compelled disclosure" Kerr explains that they "operate like an upside-down pyramid" with a warrant at the top. Id.

(30.) See Microsoft, 829 F.3d 197, 212 (2d Cir. 2016) (explaining warrant in context of Constitution). "As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States...." Id. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (analogizing United States warrant authorizing search in international residence to case). The Court noted that a United States warrant authorizing a search of defendant's residence in Mexico "would be a dead letter outside the United States." Id. See also Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 354 (2015) (explaining limits of warrants). The "overreaching rule is that the judiciary's warrant authority is territorially limited." Id.

(31.) See, e.g., Microsoft, 829 F.3d at 214 (explaining District Court's reference). An SCA warrant acts "as a 'hybrid' between a traditional warrant and subpoena because--generally unlike a warrant--it is executed by a service provider rather than a government law enforcement agent, and because it does not require the presence of an agent during its execution." Id. See id. at 226 (Lynch J., concurring) (explaining SCA warrant differs from traditional search warrant). See Microsoft R'hrng, 855 F.3d at 60 (Jacobs J., dissenting) (explaining function of SCA warrant). The "instrument functions as a subpoena though the Act calls it a warrant." Id. See id. at 70 (Raggi J., dissenting) (reasoning why SCA warrant differs from traditional search warrant). "[A] section 2703 (a) warrant is not a traditional warrant ... it does not authorize federal agents to search any premises or to seize any person or materials. Rather it authorizes a federal agent to require a service provider to disclose materials in its possession." Id. Judge Raggi further reasoned, "[t]he difference is significant to identifying where a warrant is being executed." Id. See In re Search of Content Stored at Premises Controlled by Google, Inc., No. 16-mc-80263-RS, 2017 WL 3478809, at *n. 2 (N.D. Cal. Aug. 14, 2017) (noting SCA does not describe warrant as "search warrant"). The court further noted the statute does not authorize government agents "to go to the premises of a service provider without prior notice to the provider, search those premises until they find the computer server or other device on which the sought communications reside, and seize that device." Id. See In re Two Email Accounts Stored at Google, Inc., No. 17-M-1235, at *3 (E.D. Wis. June 30, 2017) (concluding effect of SCA warrant). "Although termed a warrant (no doubt partly as a means of reinforcing that these are order that must be supported by probable cause) the effect of an order under the SCA is to compel the service provider to disclose information in its possession." Id. It is not an authorization for government agents to physically enter any location or to seize anything from either the user or the service provider. Id. See In re Search of Information Associated with [Redacted]@gmail.com That is Stored at Premises Controlled by Google, Inc., No. 16-mj-00757 (BAH), 2017 WL 3445634, at *20 (D.D.C. July 31, 2017) (authorizing federal courts to issue SCA warrants reinforced similarity between SCA warrants and federal criminal subpoenas). See also Paul K. Ohm, Parallel-Effect Statutes and E-Mail "Warrants": Refraining the Internet Surveillance Debate, 72 Geo. Wash. L. Rev. 1599, 1611 (2004) (arguing warrants issued under SCA differ from search warrants; "to call them such confuses legal terminology").

(32.) See Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 667-68 (2d Cir. 1983) (discussing holding of court). A court with personal jurisdiction over a foreign corporation under investigation for violating United States law could enforce a grand jury subpoena requiring production of documents located abroad because "[t]he test for the production of documents is control, not location." Id. at 667. See United States v. Bank of Nova Scotia, 691 F.2d 1384, 1390 (11th Cir. 1982) (enforcing grand jury subpoena on domestic agency). A grand jury subpoena was served and enforced on the domestic Florida agency of a Canadian chartered bank and required production of records maintained in bank's Bahamian branch. Id. See United States v. First Nat'l City Bank, 396 F.2d 897, 900-01 (2d Cir. 1968) (explaining federal court's power to require disclosure). Federal courts have "the power to require the production of documents located in foreign countries if the court has in personam jurisdiction of the person in possession or control of the material." Id.

(33.) See Yates v. United States, 135 S. Ct. 1075,1089 (2015) (Alito J., concurring) (recognizing e-mail as "tangible object"). See United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (concluding digital information equates to "personal papers"). See LeClair v. Hart, 800 F.2d 692, 696 n. 5 (7th Cir. 1986) (recognizing information as form of property). See Microsoft R'hrng, 855 F.3d at 73 (Raggi J., dissenting) (concluding providers who comply not considered agents of government). "[A] service provider who complies with a [section] 2703 (a) warrant compelling disclosure of communications in his lawful possession does not thereby conduct a search or seizure as the agent of the government." Id. See Skinner v. Ry. Labor Executives' Assn., 489 U.S. 602, 614 (1989) (discussing privacy expectations under Fourth Amendment). "Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government." Id. See also In re Search of Information Associated with [Redacted]@gmail.com That Is Stored at Premises Controlled by Google, 2017 WL 3445634, at *26 (holding Google's lawful accessing and transferring of customer information does not amount to search or seizure); In re Search Warrant Issued to Google, Inc., 264 F. Supp. 3d 1268, 1279 (N.D. Ala. 2017) (reasoning Google's access to user data). Google's accessing and making electronic copies of user's data "is not a 'seizure' of that material because there is no meaningful interference with the owner's possessory interest in it...." In re Search Warrant Issued to Google, Inc., 264 F. Supp. 3d at 1279. See also In re Search Warrant to Google, Inc., No. 16-4116, 2017 WL 2985391, at *8 (D. N.J. July 10, 2017) (explaining warrant which requires Google to copy data, rather than remove it, does not constitute seizure). See also Roderick O'Dorisio, "You've Got Mail!" Decoding the Bits and Bytes of Fourth Amendment Computer Searches After Ackerman, 94 Denv. L. Rev. 651, 671 (2017) (recognizing electronic data physically encoded on hard drives); Morgan Cloud, Property is Privacy: Locke and Brandeis in the Twenty-First Century, 55 Am. Crim. L. Rev. 37, 56-58 (2018) (arguing private letters considered property); Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104 Cal. L. Rev. 805 (2016) (arguing Fourth Amendment "effects" should include "smart objects" and communications); Michael W. Price, Rethinking Privacy: Fourth Amendment "Papers" and the Third-Party Doctrine, 8 Nat'l. Security L. & Pol'y. 247, 279 (2016) (comparing emails to "old-fashioned letters" because value of both includes ability to exclude others from content); Orin S. Kerr, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 285, 303 (2015) (discussing Internet technologies in context of Fourth Amendment doctrine); Lon A. Berk, After Jones, The Deluge: The Fourth Amendment's Treatment of Information, Big Data, and the Cloud, 14 J. H. Tech. L. 1, 36 (2014) (suggesting data as property protected under Fourth Amendment); Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1014 (2010) (analyzing distinction between physical property and data from Fourth Amendment perspective); Mark Taticchi, Redefining Possessory Interests: Perfect Copies of Information as Fourth Amendment Seizures, 78 Geo. Wash. L. Rev. 476, 477 (2010) (explaining prevalent interpretation). Courts generally interpret "possessory interest" in Fourth Amendment cases to mean physical possession even in cases where the property at issue is information. Taticchi, supra, at All. See also Kimberly S. Cuccia, Have you Seen My Inbox? Government Oversteps the Fourth Amendment Again: Goodbye Telephones, Hello E-Mail, 43 Val. U. L. Rev. 671, 672 (2009) (arguing SCA procedural provisions violate Fourth Amendment privacy guarantees).

(34.) See, e.g., Microsoft, 829 F.3d at 228-29 (Lynch J., concurring) (explaining influence of electronic location). The location of electronic documents "on a computer server in a foreign country is, in important ways, merely virtual." Id. at 229. See In re Search of Content Stored at Premises Controlled by Google, Inc., Case No. 16-mc80263-RS, 2017 WL 3478809, at *n. 2 (N.D. Cal. Aug. 14, 2017) (noting difference in records sought by SCA warrant). The "nature of the records" demanded in an SCA warrant is relevantly "different from that of the physical documents sought by traditional search warrants." Id. See also Kirsten Eichensehr, Data Extraterritoriality, 95 Tex L. Rev. 145 (2017) (arguing cloud computing challenges traditional international rules regarding jurisdiction); Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 735 (2016) (noting importance of jurisdiction in context of territoriality). "[Jurisdiction over cloud-based data has nearly everything to do with territoriality" and data may even be subject to multiple jurisdictions at the same time. Woods, supra, at 735. See also P. Sean Morris, War Crimes Against Privacy--The Jurisdiction of Data and International Law, 17 J. High Tech. L. 1 (2016) (concluding jurisdictional issues allow SCA to foster "war crimes" on privacy); Jennifer Daskal, supra note 30, at 365-75 (explaining retrieval process can reach multiple sovereigns). In order to retrieve contents of a single electronic account it may sometimes require the retrieval of data stored on the territory of multiple sovereigns. Morris, supra, at 1.

(35.) See Google, 275 F. Supp. 3d 605, 616-17 (E.D. Pa. 2017) (applying Morrison/ RJR Nabisco framework).

(36.) See id. (noting no dispute regarding first step of extraterritoriality analysis). The parties agree [section] 2703 does not indicate Congressional intent for the provision to apply extraterritorially. Id.

(37.) See id. at 611-12 (describing second step of framework). In order for the Court to determine a domestic application, it first looks to the focus of the statute. Id. at 612. Once the focus of the statute is identified, the Court then analyzes where "the conduct relevant to the statute's focus occurred." Id. at 611. The Court recognized the SCA as a whole concerns the privacy of electronic communications stored by third-party service providers. Id. at 613. Using the Supreme Court's extraterritoriality framework, the Court also analyzed the focus of the SCA's warrant provision, considering "what the provision 'seeks to regulate' and what interest it 'seeks to protect.'" Id. at 615-16.

(38.) See id. (analyzing focus of [section] 2703). The Court concluded that the focus of [section] 2703 is on a provider's disclosure of electronic communications and other subscriber data to the government. Id. The Court stated, "[section] 2703's disclosure focus is apparent from the text of the provision, which is aptly titled, '[r]equired disclosure of customer communications or records.'" Id. at 616. Reviewing the legislative history of the statute, the Court also noted, "[b]y defining the circumstances in which subscriber privacy must give way to law enforcement needs, the provision makes clear that it is the government's ability to obtain disclosure that the statute seeks to protect." Id. at 617. In addition, the Court concluded [section] 2703's relationship to other provisions of the statute "underscores" the warrant provision's focus on disclosure. Id. The Court added, "[b]ut even if the statute's focus is privacy, the Court nevertheless agrees with the Magistrate Judge and the government that the relevant conduct for purposes of the extraterritoriality analysis remains Google's disclosure of the compelled information to the government." Id.

(39.) See id. at 619 (emphasizing United States as only location from which Google personnel can access requested data). As the Court explained, "[t]hat the subscriber's communications are accessed only by--and can be accessed only by--Google personnel in the United States, and are produced by such personnel in the United States, reinforces the conclusion that the only conduct involved in the search and retrieval process occurs domestically." Id.

(40.) See id. (describing search and retrieval process). Google personnel in the United States would direct the search and retrieval process and personnel located in foreign countries would not be involved in the process. Id. The Court concluded compliance with an SCA warrant would take place domestically "because corporate employees in the United States can review and provide the relevant materials to the government 'without ever leaving their desks in the United States.'" Id.

(41.) See Google, 275 F. Supp. 3d 605, 614 (E.D. Pa. 2017) (agreeing with government SCA warrant differs from traditional search warrant). The Court noted, "[t]hat an SCA warrant is not a traditional search warrant is underscored by the ways in which the SCA departs from the requirements of Federal Rule of Criminal Procedure (41) [(Rule 41)]." Id. at n.12. There are several significant differences between Rule 41 search warrant and an SCA warrant: a traditional Rule 41 warrant generally requires notice to the affected party upon execution, but an SCA warrant generally may be executed without notice to the subscriber; an SCA warrant does not require an officer to be present for service or execution of an SCA warrant; most importantly, an SCA warrant is not subject to Rule 41 's venue provisions, which emphasize the location of the place to be searched. Id. Congress amended the SCA to permit a court with "jurisdiction over the offense being investigated" to issue an SCA warrant. Id. Authorizing a court with jurisdiction over the offense "reinforces the similarity between an SCA warrant and a federal criminal subpoena...." Id.

(42.) See id. at 614 (explaining traditional warrants--unlike SCA warrants--target specific locations when executed).

(43.) See id. (analyzing [section] 2703). A 8 2703 warrant does not authorize "a search and seizure in the traditional sense--i.e., entry by government agents into a provider's premises to search for and seize the device containing the communications sought." Id.

(44.) See id. (describing SCA warrant). An SCA warrant is a "procedural mechanism by which the government may require a service provider to disclose the contents of electronic communications in its possession." Id.

(45.) See id. (comparing SCA warrant with subpoena). The Court concluded, "[i]n manner of operation, then, an SCA warrant is 'more closely analogous to the workings of subpoenas and court-ordered discovery.'" Id. at 615. The Court also explained subpoenas and court-ordered discovery are "generally understood to be capable of reaching records in the possession or control of a party [if] the enforcing court has personal jurisdiction [over the party], regardless of where the records are located, without raising extraterritoriality concerns." Id.

(46.) See id. at 618-19 (describing application of SCA). "Because the warrants the government seeks to enforce in this case were issued in the United States to a United States-based provider and require disclosure in the United States, enforcing the warrants constitutes a domestic application of the SCA." Id.

(47.) See Google, 232 F. Supp. 3d 708, 724 (E.D. Pa. 2017) (describing retrieval of data stored by Google). The Court described "a system in which Google can retrieve the data, and its users can retrieve the data, but the government will only be able to obtain data that happens to be stored in the United States at the very moment when Google gathers the responsive information." Id.

(48.) See supra note 35 and accompanying text (applying Morrison/NJR Nabisco framework to Google).

(49.) See supra note 36 and accompanying text (applying Part One of Morrison/ RJR Nabisco framework to Google).

(50.) See supra note 37 and accompanying text (applying Part Two of Morrison/ RJR Nabisco framework to Google).

(51.) See Morrison v. Nat'l Austl. Bank, Ltd., 561 U.S. 247, 261 (2010) (summarizing Court's view). "The results of judicial-speculation-made-law--divining what Congress would have wanted if it had thought of the situation before the court--demonstrate the wisdom of the presumption against extraterritoriality." Id.

(52.) See Google, 232 F. Supp. 3d at 725 (explaining Court's interpretation). "[U]nder this [C]ourt's interpretation [of the Microsoft decision], Google will gather the requested undisclosed data on its computers in California, copy the data in California, and send the data to law enforcement agents in the United States, who will then conduct their searches in the United States." Id.

(53.) See supra note 42 and accompanying text (concluding SCA warrant does not reflect traditional search warrant).

(54.) See supra note 45 and accompanying text (comparing SCA warrants and subpoenas).

(55.) See supra note 8 and accompanying text (discussing extraterritorial reach of SCA warrants and subpoenas).

(56.) See supra note 34 and accompanying text (discussing territorial limitations of warrant).

(57.) See supra note 29 and accompanying text (explaining Congressional use of terms of art).

(58.) See supra note 33 and accompanying text (explaining privacy expectations under Fourth Amendment).

(59.) See Google, 275 F. Supp. 3d 605, 618 n. 15 (E.D. Pa. 2017) (analyzing privacy expectations under Fourth Amendment in current case).

(60.) See United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (recognizing individuals' private digital information as "their personal 'papers' in ... Constitution"). See Kerr, The Fourth Amendment and the Global Internet, supra note 33, at 303 (discussing Internet technologies in context of Fourth Amendment doctrine). See also Kerr, supra note 33, at 1014 (analyzing distinction between physical property and data from Fourth Amendment perspective). See also Price, supra note 33, at 279 (comparing emails to old-fashioned private letters).

(61.) See supra note 34 and accompanying text (describing data retrieval from foreign datacenters). Data retrieval requires complex actions in foreign countries. Id.

(62.) See supra note 40 and accompanying text (reasoning Google personnel in United States would direct search and retrieval process). Since Google personnel in the United States would be directly responsible for the search and retrieval process, personnel located in foreign countries would not be involved in the process. Id.

(63.) See LeClair v. Hart, 800 F.2d 692, 696 (7th Cir. 1986) (recognizing information as form of property). "[Tjhe right to exclude others is generally 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Id.

(64.) See supra note 2 and accompanying text (discussing CLOUD Act).
COPYRIGHT 2018 Suffolk University Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2018 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Homan, Madison
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jun 22, 2018
Words:9548
Previous Article:ADMINISTRATIVE LAW - Freedom of Information Act: Ban on Releasing Names of Foreigners Trained by United States Military - Cameranesi v. United States...
Next Article:ADMINISTRATIVE LAW - The Seafood Import Monitoring Program Upheld to Combat Nefarious Seafood Importers - Alfa Int'l Seafood v. Ross.
Topics:

Terms of use | Privacy policy | Copyright © 2020 Farlex, Inc. | Feedback | For webmasters