In re Contents & Records Relating to the Google Accounts

• Decision Date: 15 February 2018
• Docket Number: 18–mc–00020
• Citation: 310 F.Supp.3d 883
• Parties: In the MATTER OF the SEARCH OF: CONTENTS AND RECORDS RELATING TO the GOOGLE ACCOUNTS (Google Plus, Gmail, Google Drive) Related to the e-mail addresses: which are stored at premises controlled by Google, Inc., 1600 Amphitheatre Parkway, Mountain View, AC 94043
• Court: U.S. District Court — Southern District of Ohio

310 F.Supp.3d 883

In the MATTER OF the SEARCH OF: CONTENTS AND RECORDS RELATING TO the GOOGLE ACCOUNTS (Google Plus, Gmail, Google Drive) Related to the e-mail addresses: which are stored at premises controlled by Google, Inc., 1600 Amphitheatre Parkway, Mountain View, AC 94043

18–mc–00020

United States District Court, S.D. Ohio, Eastern Division.

Signed February 15, 2018

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Government's Motion for Reconsideration of what the Government has deemed a denial of an application for a search warrant.¹ For the reasons set forth below, the Court DENIES the Government's Motion for Reconsideration. Based on the extraordinary circumstances of this case, the Court withdraws the order of reference for this warrant under 28 U.S.C. § 636, Federal Rule of Criminal Procedure 59(a), and Local Rule 72.2. This Court finds that the records sought are within the scope of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq. The application for a search warrant is GRANTED.

I.

On February 12, 2018, an Assistant United States Attorney and a Homeland Security Investigations Task Force Officer presented an application for a search warrant to a Magistrate Judge in the United States District Court for the Southern District of Ohio, Eastern Division. The search warrant application sought electronic communications and records related to a defendant's Google email accounts, pursuant to 18 U.S.C. §§ 2703(a), 2703(b)(1)(A), and 2703(c)(1)(A) of the SCA. The warrant sought to require Google to disclose all responsive information, regardless of whether it is "stored, held or maintained inside or outside of the United States."

Upon review of the search warrant and accompanying documents, the Magistrate Judge found probable cause to issue the warrant. This Court, reviewing the warrant request and supporting affidavit, also finds probable cause exists. Before signing, the Magistrate Judge inquired as to why an Addendum, which had heretofore been submitted with other similar applications, was not attached. The Addendum required Google to preserve, but not provide, "responsive information stored solely outside of the United States."²

The Government objects to the Addendum, deeming the request a denial of its application for a search warrant, and asks the Court to find the decision clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.").

This Court has serious doubt as to whether there is an order of the Magistrate Judge capable of review by the undersigned. No written order has been issued; no briefing has been considered by the Magistrate Judge.

Even assuming the existence of a reviewable order, this Court cannot find that the Magistrate Judge's action was clearly erroneous or contrary to law. As described infra , the only federal appellate court to address whether the SCA authorized a warrant to obtain electronic records in another country has found that the statute does not extend beyond the United States. See In the Matter of a Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporations , 829 F.3d 197 (2d Cir. 2016) (" Microsoft I "), reh'g denied , 855 F.3d 53 (2d Cir. 2017 ) (" Microsoft II "). As will be discussed, other courts have disagreed and the matter is currently before the United States Supreme Court. United States v. Microsoft Corp. , ––– U.S. ––––, 138 S.Ct. 356, 199 L.Ed.2d 261 (2017) (" Microsoft III "). The referenced Addendum would have the practical effect of preserving the information sought and, most likely, would set up a focused briefing of the issue. This did not occur and the Magistrate Judge made no final ruling on the scope of the SCA. There is no clearly erroneous decision that is contrary to law.

II.

Given the unique circumstances of these issues, which are certainly capable of repetition, and the fact that major service providers subject to orders under the SCA have fully explored all legal arguments in filings before the Supreme Court and in Microsoft I, II , all of which this Court has reviewed, the undersigned finds there is substantial jurisprudential value in deciding the matter and providing a modicum of certainty, prior to a final decision of the Supreme Court. Applications for warrants under the SCA are made with great frequency, as email communications replace regular mail. In many cases, simply waiting for a decision from a pending Supreme Court case is prudent. The issue in this case implicates numerous other investigations, many of which are no doubt time sensitive.

The SCA was enacted as Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"). The ECPA regulates government access to wire and electronic communications. 18 U.S.C. § 2510 et seq. Under the SCA, the Government may compel a service provider to disclose the contents of electronic communications, including emails, or other records and information within its control. 18 U.S.C. § 2703. In interpreting the SCA, the Second Circuit in Microsoft I reversed the district court's denial of Microsoft Corporation's motion to quash a warrant issued under the SCA, which directed Microsoft to produce the contents of an email account that it maintained for a customer. A United States Magistrate Judge had issued a warrant on the Government's application, having found probable cause to believe that the account was being used in furtherance of narcotics trafficking. The warrant was then served on Microsoft at its headquarters in Redmond, Washington. Microsoft ascertained that, to comply fully with the warrant, it would need to access customer content that it stored in Ireland. The Court of Appeals for the Second Circuit held in Microsoft I that the Government was not entitled to the seizure of responsive records or communications because the information was stored abroad.

The United States petitioned the Second Circuit for a rehearing en banc in Microsoft II. The entire Second Circuit split evenly on the request, which left the panel decision intact. Microsoft II , 855 F.3d at 60 (Jacobs, J., dissenting). Precisely half of the members of Second Circuit disagree with the panel decision in Microsoft I. On October 16, 2017, the Supreme Court granted a writ of certiorari in the case and the matter is scheduled for oral argument later this month.

No other circuit, including the Sixth Circuit, has addressed this issue. The Second Circuit's decision in Microsoft I has been rejected by the numerous other courts considering the issue, including a sister district court from this circuit. See, e.g. , United States v. Google, Inc. , Case No. 17–mc–7 (W.D. Term. Nov. 3, 2017) (sealed) (determining relevant conduct within Section 2703's focus, occurs in the United States); In re Info. Associated with @gmail.com , Case No. 16–mj–757, 2017 U.S. Dist. LEXIS 130153, 2017 WL 3445634, at *27 (D.D.C. July 31, 2017) ("the SCA warrant [is] simply a domestic execution of the court's statutorily authorized enforcement jurisdiction over a service provider, which may be compelled to retrieve electronic information targeted by the warrant, regardless of where the information is ‘located;’ "), aff'g 2017 WL 2480752 (D.D.C. June 2, 2017) ; In re Search Warrant No. 16–960–M–1 , 275 F.Supp.3d 605 (E.D. Pa. 2017)aff'g 232 F.Supp.3d 708 (E.D. Pa. 2017) ; Matter of Search of Content Stored at Premises Controlled by Google Inc. , Case No. 16–mc–80263, 2017 WL 3478809, at *5 (N.D. Cal. Aug. 14, 2017), aff'g 2017 WL 1487625 (N.D. Cal. April 25, 2017) ("the information sought by the government is easily and lawfully accessed in the United States, and disclosure of that content would likewise take place in the United States"); In re Search of Information Associated with Accounts Identified as [Redacted]@gmail.com , 268 F.Supp.3d 1060, 1071 (C.D. Cal. 2017) ; In re Information associated with one Yahoo email address that is stored at premises controlled by Yahoo/In re: Two email accounts stored at Google, Inc. , Case No. 17–M–1234 and 17–M–1235, 2017 WL 706307, at *3 (E.D. Wis. Feb. 21, 2017) (determining that what matters in the execution of a SCA warrant compelling disclosure by a service provider is the location of the service provider).

The Second Circuit held in Microsoft I that the SCA lacks extraterritorial reach, and that there is a presumption against applying a federal law beyond the territorial boundaries of the United States. See Morrison v. National Australia Bank Ltd. , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (federal laws construed to have only domestic application, agent clearly expressed congressional intent to the contrary). One of the dissenters in Microsoft II wrote that "no extraterritorial reach is needed to require delivery in the United States of the information sought, which is easily accessible in the United States at a computer terminal." Microsoft II , 855 F.3d at 61 (Jacobs, J., dissenting). As Judge Jacobs noted:

Extraterritoriality need not be fussed over when the information sought is already within the grasp of a domestic entity served with a warrant. The warrant in this case can reach what it seeks because the warrant was served on Microsoft, and Microsoft has access to the information sought. It need only touch some keys in Redmond, Washington. If I can access my emails from my phone, then in an important sense my emails are in my pocket, notwithstanding where my provider keeps its servers.

Id. The same holds true with the Government's request to Google in the instant action.

In contrast, the Microsoft I court engaged in an analysis of extraterritoriality and determined that the SCA's focus lies on protecting user privacy. This "determination was made under the second part of the extraterritoriality...