Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 20 of 29
Electronically transferring data from a server in a foreign country to Google's data
center in California does not amount to a "seizure" because there is no meaningful interference
with the account holder's possessory interest in the user data. Indeed, according to the
Stipulation entered into by Google and the Government, Google regularly transfers user data
from one data center to another without the customer's knowledge. Such transfers do not
interfere with the customer's access or possessory interest in the user data. Even if the transfer
interferes with the account owner's control over his information, this interference is de minimis
and temporary. See Jacobsen, 466 U.S. at 125-26 (holding that permanent destruction of small
portion of property for testing a de minimis intrusion on possessory interest); United States v.
Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) ("[N]o seizure occurs if a package is detained in a
manner that does not significantly interfere with its timely delivery in the normal course of
business."), cert. denied, 552 U.S. 1144 (2008).
This conclusion is supported by the Supreme Court's decision in Arizona v.
Hicks, 480 U.S. 321 (1987). In Hicks, a police officer was searching an apartment under exigent
circumstances when he noticed an expensive stereo system that he suspected had been stolen. Id.
at 323. Accordingly, he wrote down the serial number of some of its components. He later
confirmed that the serial numbers matched stereo components stolen during an armed robbery.
often true. Significantly, the two protected interests are not always present to the
same extent; for example, the seizure of a locked suitcase does not necessarily
compromise the secrecy of its contents, and the search of a stopped vehicle does
not necessarily deprive its owner of possession.
Texas v. Brown, 460 U.S. 730, 747-48 (1983) (Stevens, J., concurring).
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