In re Contents & Records Relating to the Google Accounts

310 F. Supp. 3d 883
CourtDistrict Court, S.D. Ohio
DecidedFebruary 15, 2018
Docket18–mc–00020
StatusPublished
Cited by1 cases

This text of 310 F. Supp. 3d 883 (In re Contents & Records Relating to the Google Accounts) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Contents & Records Relating to the Google Accounts, 310 F. Supp. 3d 883 (S.D. Ohio 2018).

Opinion

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Government's Motion for Reconsideration of what the Government has deemed a denial of an application for a search warrant.1 For the reasons set forth below, the Court DENIES the Government's Motion for Reconsideration. Based on the extraordinary circumstances of this case, the Court withdraws the order of reference for this warrant under 28 U.S.C. § 636, Federal Rule of Criminal Procedure 59(a), and Local Rule 72.2. This Court finds that the records sought are within the scope of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq. The application for a search warrant is GRANTED.

I.

On February 12, 2018, an Assistant United States Attorney and a Homeland Security Investigations Task Force Officer presented an application for a search warrant to a Magistrate Judge in the United States District Court for the Southern District of Ohio, Eastern Division. The search warrant application sought electronic communications and records related to a defendant's Google email accounts, pursuant to 18 U.S.C. §§ 2703(a), 2703(b)(1)(A), and 2703(c)(1)(A) of the SCA. The warrant sought to require Google to disclose all responsive information, regardless of whether it is "stored, held or maintained inside or outside of the United States."

Upon review of the search warrant and accompanying documents, the Magistrate Judge found probable cause to issue the warrant. This Court, reviewing the warrant request and supporting affidavit, also finds probable cause exists. Before signing, the Magistrate Judge inquired as to why an Addendum, which had heretofore been submitted with other similar applications, was not attached. The Addendum required Google to preserve, but not provide, "responsive information stored solely outside of the United States."2

The Government objects to the Addendum, deeming the request a denial of its application for a search warrant, and asks the Court to find the decision clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may *886reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.").

This Court has serious doubt as to whether there is an order of the Magistrate Judge capable of review by the undersigned. No written order has been issued; no briefing has been considered by the Magistrate Judge.

Even assuming the existence of a reviewable order, this Court cannot find that the Magistrate Judge's action was clearly erroneous or contrary to law. As described infra , the only federal appellate court to address whether the SCA authorized a warrant to obtain electronic records in another country has found that the statute does not extend beyond the United States. See In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporations , 829 F.3d 197 (2d Cir. 2016) (" Microsoft I "), reh'g denied , 855 F.3d 53 (2d Cir. 2017 ) (" Microsoft II "). As will be discussed, other courts have disagreed and the matter is currently before the United States Supreme Court. United States v. Microsoft Corp. , --- U.S. ----, 138 S.Ct. 356, 199 L.Ed.2d 261 (2017) (" Microsoft III "). The referenced Addendum would have the practical effect of preserving the information sought and, most likely, would set up a focused briefing of the issue. This did not occur and the Magistrate Judge made no final ruling on the scope of the SCA. There is no clearly erroneous decision that is contrary to law.

II.

Given the unique circumstances of these issues, which are certainly capable of repetition, and the fact that major service providers subject to orders under the SCA have fully explored all legal arguments in filings before the Supreme Court and in Microsoft I, II , all of which this Court has reviewed, the undersigned finds there is substantial jurisprudential value in deciding the matter and providing a modicum of certainty, prior to a final decision of the Supreme Court. Applications for warrants under the SCA are made with great frequency, as email communications replace regular mail. In many cases, simply waiting for a decision from a pending Supreme Court case is prudent. The issue in this case implicates numerous other investigations, many of which are no doubt time sensitive.

The SCA was enacted as Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"). The ECPA regulates government access to wire and electronic communications. 18 U.S.C. § 2510 et seq. Under the SCA, the Government may compel a service provider to disclose the contents of electronic communications, including emails, or other records and information within its control. 18 U.S.C. § 2703. In interpreting the SCA, the Second Circuit in Microsoft I reversed the district court's denial of Microsoft Corporation's motion to quash a warrant issued under the SCA, which directed Microsoft to produce the contents of an email account that it maintained for a customer. A United States Magistrate Judge had issued a warrant on the Government's application, having found probable cause to believe that the account was being used in furtherance of narcotics trafficking.

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Bluebook (online)
310 F. Supp. 3d 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-contents-records-relating-to-the-google-accounts-ohsd-2018.