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Google Setback Shows the Microsoft Ireland Datacenter Case May Not Be Over

Google's recent legal setback requiring the cloud giant to hand over customer e-mails stored on servers outside the United States suggests that the U.S. Department of Justice will fight a recent decision by a higher federal court in a similar case involving Microsoft and its datacenter in Ireland.

In the Microsoft case, the U.S. Court of Appeals for the 2nd Circuit, in New York City, in late January declined to re-hear a case in which the Appeals Court previously ruled that Microsoft did not have to turn over e-mails that the government demanded that were stored in Microsoft's datacenter facilities in Ireland.

Conversely, on Friday in the U.S. District Court for the Eastern District of Pennsylvania, Magistrate Judge Thomas J. Rueter ordered Google to comply with search warrants and turn over to the FBI customer e-mails that were stored abroad.

"Although the new decision is only a single opinion by a single magistrate judge, the decision shows that the Justice Department is asking judges outside the Second Circuit to reject the Second Circuit's ruling -- and that at least one judge has agreed," wrote Orin Kerr, a professor at The George Washington University Law School, in a blog post for The Washington Post after the Google decision on Friday.

Rueter did acknowledge the 2nd Circuit ruling in his decision but ultimately ruled against Google. One key difference between the cases involved the way Microsoft and Google stored the data. The e-mails in question in the Microsoft case were exclusively stored in Ireland and were there for some time. The data that Google had refused to turn over had been partitioned so that portions were stored in the United States, while others landed in datacenters in different countries.

The cases are complicated, and hinge on the Stored Communications Act (SCA), the Fourth Amendment of the Constitution, Mutual Legal Assistance Treaties (MLAT) and many other factors.

The importance of the issues involved to the U.S. government and to U.S.-based tech companies with global business interests virtually guarantees that the fight will continue.

As Kerr nicely summarized the interests at stake in an earlier blog post about a previous twist in the Microsoft case: "For Microsoft, it is thought that lots of European business may hinge on the outcome. In the post-Snowden world, many Europeans are very concerned about the risk of U.S. spying on foreign communications. U.S. government access to foreign e-mail accounts is a sensitive question. ... And it's easy to see why it matters to [the] Justice Department. A U.S. provider can easily put the e-mail of U.S. customers on a server abroad. If doing so would place the e-mail outside the reach of a U.S. warrant, then U.S. providers could readily thwart U.S. search warrants in domestic cases by putting their servers in places where alternative legal process would be spotty or unworkable."

In short, these questions aren't settled. Look for new legislation from Congress, a continuing push by the DoJ to develop dueling federal court rulings or for the U.S. Supreme Court to eventually take up one of the cases.

Posted by Scott Bekker on February 06, 2017