The Department of Justice wants a federal court to sanction Google for failing to comply with a search warrant for user data stored on servers overseas, where the search giant argues the government has no jurisdiction.
Justice Department attorneys asked the U.S. District Court for the Northern District of California to sanction the search giant in court documents filed Wednesday, DOJ’s latest move in the case to get data from 22 Google email accounts.
“[W]hen faced with a valid court order, Google, like any other person or entity, must either comply with such an order or face consequences severe enough to deter willful noncompliance,” DOJ lawyers wrote in a brief first posted by Inside Counsel. “The issue before this court is what sanction is sufficient to achieve that goal.”
The same court ordered Google in August to comply with the warrant issued in 2016. Google argues it doesn’t have to be based on a legal precedent set last year in a very similar case DOJ is pursuing against Microsoft. That legal battle began in 2014, when the government ordered the Redmond-based tech giant to turn over emails stored on a server in Ireland.
Microsoft argued DOJ had no authority to compel the Windows maker to turn over data stored on another country’s sovereign soil, and that DOJ must request the emails from the foreign government in question. The government countered that as a company based in the U.S., Microsoft is obligated to adhere to the Electronic Communications Privacy Act (ECPA) — a Reagan-era law granting law enforcement access to Americans’ emails after they’re 180 days old.
After initially losing in a lower court, the Second Circuit Court of Appeals ruled in Microsoft’s favor last July, saying ECPA “does not authorize courts to issue and enforce against U.S.-based service providers warrants for the seizure of customer e-mail content that is stored exclusively on foreign servers.” In that case Microsoft agreed to be held in contempt to speed up the case’s appeal, currently pending at the Supreme Court. At the same time, both parties and the court agreed to stay sanctions.
Google is also being held in contempt, but not for mere judicial procedure. The government wants the court to sanction Google for noncompliance with the most recent court decision while awaiting appeal to the U.S. Court of Appeals for the Ninth Circuit, noting “customary sanction for an individual’s refusal to comply with court-ordered disclosure is immediate imprisonment.”
“Because a corporate entity obviously cannot be imprisoned for its refusal to comply with a court order, the usual contempt sanction imposed against corporate entities is a fine,” the government told the court. “Google’s conduct here amounts to a willful and contemptuous disregard of various court orders.”
As a side note, the government accused Google of designing its system architecture to store emails on cross-border servers, specifically for the purpose of refusing search warrants.
“Even more alarming is the fact that Google went out of its way, spending thousands of man-hours and forgoing other engineering projects, all so that it would be positioned to refuse to disclose any of its foreign-stored data—or, more precisely, any data it could not confirm was held in the United States—without seeking judicial relief or guidance and without limiting its new tooling to be used for warrants issued out of the Second Circuit,” the DOJ filing reads.
Google in a previous September brief to the court noted the government agreed to stay sanctions in the Microsoft case.
“In this case, however—despite this court’s recognition that Google is proceeding in good faith in this litigation to seek clarity on an important legal issue—the government refused to enter into any stipulation with a stay of sanctions,” Google wrote to the court.
Attorneys for the search giant go on to ask the court to devise a sanction or fine, and stay it until the case is decided.
“Google will continue to preserve information in its possession that is called for by the warrant but stored outside of the United States, and would immediately produce this information if, after exhausting its appellate options, it does not prevail,” Google’s brief reads.
The DOJ said Google is welcome to appeal the case after being sanctioned.
“The government merely seeks to develop the record here to determine the appropriate sanction for its willful disregard of this court’s order,” DOJ lawyers said, adding that in the Microsoft case cited by Google, Microsoft filed to quash the warrant within two weeks.
Google, they note, waited six months “and did not move to quash the warrant until after it learned that the government intended to file an order to show cause, all as a result of its significant efforts to re-design its compliance tooling to allow it to withhold information that might be held on one or more of its foreign servers.”
If the case is successfully appealed to the Ninth Circuit, there’s no guarantee Google will prevail like Microsoft did in the Second Circuit. Federal appeals courts aren’t bound to recognize sister rulings, but if the Supreme Court agrees to hear the case, the potential ruling will filter down to the rest.
Google has two weeks to respond to the brief filed last Wednesday. Meanwhile, DOJ inadvertently revealed Google will no longer challenge search warrants for data stored overseas in a reply brief to the Supreme Court last week, filed in the Microsoft case.
“Google has reversed its previous stance and informed the government that it will comply with new Section 2703 warrants outside the Second Circuit (while suggesting that it will appeal the adverse decisions in one or more existing cases),” the government said.