Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 24 of 29
Under the facts before this court, the conduct relevant to the SCA's focus will
occur in the United States. That is, the invasions of privacy will occur in the United States; the
searches of the electronic data disclosed by Google pursuant to the warrants will occur in the
United States when the FBI reviews the copies of the requested data in Pennsylvania. These
cases, therefore, involve a permissible domestic application of the SCA, even if other conduct
(the electronic transfer of data) occurs abroad. See RJR Nabisco, 136 S. Ct. at 2101. 17
B.
Other Considerations
Having concluded that the record before the court does not present an
extraterritorial application of the SCA, the court will address several other considerations raised
by the parties, recognizing that such considerations are not determinative of the primary issue
before the court. In this court's view, the analysis set forth above does not run afoul of principles
of comity and also presents a commonsense interpretation of the SCA which will not lead to
absurd results.
17
In contrast to the facts in Microsoft, there is no evidence in our record regarding
the precise location of the servers which store the electronic data requested by the search
warrants. Therefore, Google's case is easily distinguishable from the facts in Microsoft, wherein
all the relevant user data of a presumably Irish citizen was located exclusively in one data center
in Ireland and remained stable there for a significant period oftime. See Microsoft, 829 F.3d at
220 (finding "that the data is stored [exclusively] in Dublin, that Microsoft will necessarily
interact with the Dublin data center in order to retrieve the information for the government's
benefit, and that the data is within the jurisdiction of a foreign sovereign"). Indeed, a key
assumption made by the majority in Microsoft was that "messages stored in the 'cloud' have a
discernable physical location." Id. at 221 n.28. As explained supra, because of the changeable
and divisible nature of Google's cloud technology, this critical assumption cannot be made in this
case. See Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 379 (2015) ("The
intermingling of data means that it is often difficult, if not impossible, to make the kind of finetuned identity- and location- based distinctions that Fourth Amendment ... law demands.").
24
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents