A judge from the United States ordered Google to issue the user's mail from foreign servers
It is believed that the Anglo-American justice system is strictly subject to case law. In it, the main source of law is judicial precedent. But in reality, this is not an absolute postulate. The adoption of a certain court decision in the past may influence the decision of another judge on a similar issue, but does not guarantee the same result by 100%. This is what we see from the documents on the case against Google, which in February 2017 the court ordered to execute a search warrant with the issuance of user information from foreign servers. Although in July 2016, another court in the case against Microsoft made the opposite decision .
On February 3, 2017, a federal judge of the District Court for the Eastern District of Pennsylvania ruled ( pdf ), which may be important for the information security of millions of users of Gmail and other American Internet companies.
Recall that the history of the precedent with Microsoft began in 2014. Then, after receiving a court order from the US Federal Court to provide the contents of the user's mail correspondence, whose data is stored on a foreign hosting, Microsoft refused to obey the order . This was the first time in history when an American company refused to comply with a court order to protect its foreign users. Microsoft lawyers have built protection on the fact that the data centers in the European Union are not under US jurisdiction.
Microsoft's position was supported by many international and technology companies.
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The trial against Microsoft dragged on and reached the US Court of Appeals for the 2nd Circuit, which in July 2016 ruled that the American search warrant was not effective on the territory of the foreign data center of the American company. In January 2017, the same appellate court refused to reconsider the case with the distribution of votes of 4–4 (3 out of 11 judges recused themselves), see the 55-page decision of the Court of Appeal with the arguments of its position.
Despite this precedent, a federal magistrate of the District Court for the Eastern District of Pennsylvania ruled differently regarding a search warrant for Google (Search Warrant No. 16-960-M-01).
Of course, this is just a minor decision of one small judge, which will certainly be sent for review on the initiative of Google (Google lawyers have already announced this).
Another thing is important. Experts say that the opinion of a judge from Pennsylvania indicates that the decision of the US Court of Appeals of the 2nd district is not considered to be a fully precedent: “The US Department of Justice asks judges outside the 2nd district not to make a decision of the 2nd district - and at least one judge agreed to this, ” writes Orin Kerr, a professor at the Law School at George Washington University.
The case against Google includes two standard orders of the Stored Communications Act (this 1986 law is considered obsolete by many), requiring the disclosure of the contents of the user's emails. Google has revealed some letters that were kept entirely on servers in the United States. Regarding the rest of the letters, Google said that the technology of distributed data storage does not allow to determine where exactly the digital fragments of these letters are stored. Since they can be physically stored outside the United States, Google cannot issue them to the authorities based on Microsoft’s precedent and the decision of the US Court of Appeals in the 2nd Circuit.
The Justice of the Peace of Pennsylvania (and, probably, the US Department of Justice) considers otherwise. He decided that Google is obliged to fulfill the order, because "the actions necessary for its implementation will take place in the United States."
That is, if from the territory of the United States you can get access to the user's mail, which is located on a foreign server, then this action is in US jurisdiction and must be performed in accordance with the requirement of a US court. The judge believes that such actions do not contradict the Fourth Amendment to the US Constitution and are not actually a search and seizure of property outside the United States: “The invasion of privacy takes place on American territory,” the court said.
In the text of the decision, the judge wrote that electronic data transmission from a foreign server to a Google data center in California is not a “arrest”, because “there is no expressive interference with the owner’s interests of the account custodian to user data” interest in the user data). The judge also noted that Google, as she herself said, regularly transfers data from one data center to another without the knowledge of users - and such transfers do not expressly interfere with the account keeper's interests to user data, exactly as in this case.
Apparently, lawyers are unable to reach a consensus on the jurisdiction of the American court over digital property and its physical location. The decision of the US Court of Appeals for the 2nd Circuit does not seem to be considered a precedent and may be revised in the future.
The judge of Pennsylvania specifically noted the fact that Google configured its network in such a way that it “breaks information into fragments” and does not know the physical location of each fragment. In this case, Google gets immunity against any US court order that is “absurd”.
On February 3, 2017, a federal judge of the District Court for the Eastern District of Pennsylvania ruled ( pdf ), which may be important for the information security of millions of users of Gmail and other American Internet companies.
Recall that the history of the precedent with Microsoft began in 2014. Then, after receiving a court order from the US Federal Court to provide the contents of the user's mail correspondence, whose data is stored on a foreign hosting, Microsoft refused to obey the order . This was the first time in history when an American company refused to comply with a court order to protect its foreign users. Microsoft lawyers have built protection on the fact that the data centers in the European Union are not under US jurisdiction.
Microsoft's position was supported by many international and technology companies.
')
The trial against Microsoft dragged on and reached the US Court of Appeals for the 2nd Circuit, which in July 2016 ruled that the American search warrant was not effective on the territory of the foreign data center of the American company. In January 2017, the same appellate court refused to reconsider the case with the distribution of votes of 4–4 (3 out of 11 judges recused themselves), see the 55-page decision of the Court of Appeal with the arguments of its position.
Despite this precedent, a federal magistrate of the District Court for the Eastern District of Pennsylvania ruled differently regarding a search warrant for Google (Search Warrant No. 16-960-M-01).
Of course, this is just a minor decision of one small judge, which will certainly be sent for review on the initiative of Google (Google lawyers have already announced this).
Another thing is important. Experts say that the opinion of a judge from Pennsylvania indicates that the decision of the US Court of Appeals of the 2nd district is not considered to be a fully precedent: “The US Department of Justice asks judges outside the 2nd district not to make a decision of the 2nd district - and at least one judge agreed to this, ” writes Orin Kerr, a professor at the Law School at George Washington University.
The case against Google includes two standard orders of the Stored Communications Act (this 1986 law is considered obsolete by many), requiring the disclosure of the contents of the user's emails. Google has revealed some letters that were kept entirely on servers in the United States. Regarding the rest of the letters, Google said that the technology of distributed data storage does not allow to determine where exactly the digital fragments of these letters are stored. Since they can be physically stored outside the United States, Google cannot issue them to the authorities based on Microsoft’s precedent and the decision of the US Court of Appeals in the 2nd Circuit.
The Justice of the Peace of Pennsylvania (and, probably, the US Department of Justice) considers otherwise. He decided that Google is obliged to fulfill the order, because "the actions necessary for its implementation will take place in the United States."
That is, if from the territory of the United States you can get access to the user's mail, which is located on a foreign server, then this action is in US jurisdiction and must be performed in accordance with the requirement of a US court. The judge believes that such actions do not contradict the Fourth Amendment to the US Constitution and are not actually a search and seizure of property outside the United States: “The invasion of privacy takes place on American territory,” the court said.
In the text of the decision, the judge wrote that electronic data transmission from a foreign server to a Google data center in California is not a “arrest”, because “there is no expressive interference with the owner’s interests of the account custodian to user data” interest in the user data). The judge also noted that Google, as she herself said, regularly transfers data from one data center to another without the knowledge of users - and such transfers do not expressly interfere with the account keeper's interests to user data, exactly as in this case.
Apparently, lawyers are unable to reach a consensus on the jurisdiction of the American court over digital property and its physical location. The decision of the US Court of Appeals for the 2nd Circuit does not seem to be considered a precedent and may be revised in the future.
The judge of Pennsylvania specifically noted the fact that Google configured its network in such a way that it “breaks information into fragments” and does not know the physical location of each fragment. In this case, Google gets immunity against any US court order that is “absurd”.
Source: https://habr.com/ru/post/401235/
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