The ongoing dispute between the government and Google concerning the company’s refusal to hand over customer data stored on foreign servers has taken an odd twist. Now, the Justice Department is demanding that Google be sanctioned for not abiding by the court’s most recent decision—ordering it to produce data associated with 22 email accounts—and calling Google’s conduct “a willful and contemptuous disregard of various court orders.” The case is In the Matter of the Search of Content that Is Stored at Premises Controlled by Google, No. 16-mc-80263 (N.D. Cal.).
As we’ve explained in previous updates, the government obtained a search warrant under the Stored Communications Act (the “SCA”) for access to Google customer accounts, including emails, contacts, files, location history, and search history. Google partially complied with the warrant by turning over information that was stored domestically, but filed a motion to quash the warrant to the extent it compelled production of data stored on servers located abroad. U.S. District Judge Richard Seeborg rejected Google’s arguments—along with the Second Circuit’s interpretation of the SCA in the Microsoftcase, which we’ve blogged about here, here, and here —and ordered Google to hand over customer email traffic, wherever located, to U.S. law enforcement.
Google wants to appeal Judge Seeborg’s ruling, but is in a tight spot. If Google refuses to comply with the ruling during the pendency of its appeal, it risks inviting (potentially very costly) sanctions. On the other hand, if it complies with the order, it risks mooting the appeal—not to mention potentially upsetting its users.
Google’s solution? Not surprisingly, Google has advised Judge Seeborg that it wishes to appeal, will not comply with the court’s ruling, and wants to be held in civil contempt to expedite the appeal. Although it may seem unusual for a party to seek a contempt finding against itself, this approach has appeal for Google because it preserves appellate jurisdiction. Importantly, Google is asking the court to stay any sanctions during the pendency of the appeal, on the grounds that it is simply acting in good faith to seek clarity on an important legal issue. The company promises that it will continue to preserve the information at issue, and pledges to immediately produce the information if it loses on appeal.
The government has stipulated to similar terms in other SCA disputes with Microsoft and Google in other jurisdictions. But the U.S. Attorney’s Office for the Northern District of California is taking a very different approach: it has accused Google of “alarming” behavior and “willful and contemptuous disregard” for the court, and is asking the court to impose steep monetary sanctions on the company. The government seeks a hearing to determine “ho at Google was responsible” for the company’s litigation and business responses to the SCA warrant, for the purposes of crafting an appropriate fine.
In its papers, the government accused Google of “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.”