Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 18 of 29
constitutes an unlawful extraterritorial application of the Act. 12
2.
Analysis of Extraterritoriality in the Present Cases
In contrast to the decision in Microsoft, this court holds that the disclosure by
Google of the electronic data relevant to the warrants at issue here constitutes neither a "seizure"
nor a "search" of the targets' data in a foreign country. This court agrees with the Second
Circuit's reliance upon Fourth Amendment principles, but respectfully disagrees with the Second
Circuit's analysis regarding the location of the seizure and the invasion of privacy. The crux of
the issue before the court is as follows: assuming the focus of the Act is on privacy concerns,
where do the invasions of privacy take place? To make that determination, the court must
12
As noted supra, the Honorable Gerard E. Lynch filed a concurring opinion in the
Microsoft panel decision. See Microsoft, 829 F.3d at 222-33. Judge Lynch found that because
of the amorphous nature of cloud technology, the question of whether compelling disclosure of
data stored in Ireland constituted an extraterritorial application of the SCA was a "very close"
question. He stated, "[t]he government's characterization of the warrant at issue as domestic,
rather than extraterritorial, is thus far from frivolous and renders this, for me, a very close case to
the extent that the presumption against extraterritoriality shapes our interpretation of the statute."
Id. at 229. Judge Lynch explained:
Corporate employees in the United States can review ... [electronic documents],
when responding to the ''warrant" or subpoena or court order just as they can do in
the ordinary course of business, and provide the relevant materials to the
demanding government agency, without ever leaving their desks in the United
States. The entire process of compliance takes place domestically.
Id. at 229. Judge Lynch criticized the majority's finding that "the locus of the invasion of
privacy is where the private content is stored." Id. at 230 n.7. He stated that this determination
seemed to be "suspect when the content consists of emails stored in the 'cloud."' Id. He stated,
"[i]t seems at least equally persuasive that the invasion of privacy occurs where the person whose
privacy is invaded customarily resides." Id. However, Judge Lynch ultimately concluded that
because the nationality of the Microsoft account holder was unknown and was probably a citizen
oflreland, Congress did not intend for the SCA "to reach situations of this kind." Id. at 230. He
explained that the case would be different "if the American government is demanding from an
American company e-mails of an American citizen resident in the United States, which are
accessible at the push of a button in Redmond, Washington." Id.
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