Google has quietly stopped challenging most search warrants from US judges in which the data requested is stored on overseas servers, according to the Justice Department.
The revelation, contained in a new court filing to the Supreme Court, comes as the administration of President Donald Trump is pressing the justices to declare that US search warrants served on the US tech sector extend to data stored on foreign servers.
Google and other services began challenging US warrants for overseas data after a federal appeals court sided with Microsoft last year in a first-of-its-kind challenge. Microsoft convinced the New York-based 2nd US Circuit Court of Appeals—which has jurisdiction over Connecticut, New York, and Vermont—that US search-and-seizure law does not require compliance with a warrant to turn over e-mail stored on its servers in Ireland. Federal prosecutors were demanding the data as part of a US drug investigation.
In the aftermath, courts outside the 2nd Circuit, which are not bound by the ruling, began rejecting the circuit’s decision and dismissing fresh challenges by the ISPs, including those brought by Google, Yahoo, and Microsoft. In one instance, Google was even found in contempt of court (PDF) for refusing to comply with a District of Columbia federal judge’s order to hand over data stored overseas.
The Supreme Court has not decided whether to hear the government’s challenge to the Microsoft decision, which has huge privacy ramifications for consumers and for the tech sector. The sector is being asked by the US government to comply with court orders that sometimes conflict with the laws of where the data is stored.
Google’s move is a break from Microsoft, which, according to the Justice Department filing, “continues to rely” on the 2nd Circuit’s decision on a nationwide basis and is “refusing to produce communications that previously would have been disclosed as a matter of course.”
In seeking the high court to enter this international legal thicket, the Justice Department told the justices that Yahoo and Google have lost before 11 different judges in five different federal circuits and have not prevailed on the issue outside the 2nd Circuit. The Justice Department noted that the controversy is ripe for the justices to review because there are conflicting opinions across the country, in addition to varying compliance behaviors from service providers.
In a document sent to the Supreme Court, the Justice Department wrote (PDF):
Google has reversed its previous stance and informed the government that it will comply with new Section 2703 warrants outside the 2nd Circuit (while suggesting that it will appeal the adverse decisions in one or more existing cases). Consequently, the government’s ability to use Section 2703 warrants to obtain communications stored abroad—which may contain evidence critical to criminal or national-security investigations—now varies depending on the jurisdiction and the identity of the provider.
Supreme Court silence
Microsoft was not immediately prepared to comment. Oath, which owns the Yahoo brand, said in a statement that “We carefully review all requests for user data. We have previously objected, and will continue to object, to process that is over broad or inconsistent with applicable law.”
Google, in a statement, told Ars that it supported recently introduced legislation (PDF) authorizing Internet service providers to surrender overseas data with a warrant.
We’re continuing to follow the Second Circuit Court of Appeals’ decision and will decline to produce data stored overseas in courts that fall within that circuit. To seek consistency in the law, we are appealing some of the cases where lower courts have decided not to follow the ruling of the Second Circuit Court of Appeals. This discrepancy in court decisions is yet another reminder that data surveillance laws need to be modernized to safeguard users’ privacy, protect law enforcement’s legitimate need to collect digital evidence, and provide clarity. We are pleased that both houses of Congress have introduced bills that address these issues.
The US government claims that where the tech sector stores data should not matter. What matters is whether a company can access that data in the US, according to the Justice Department.
The Justice Department initially asked the Supreme Court in June to review the Microsoft decision. The justices have not yet said whether they would hear the case in their upcoming term, which starts October 2.