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In re Information Associated with One Yahoo Email Address that is Stored at Premises Controlled by Yahoo

United States District Court, E.D. Wisconsin

February 21, 2017

In re Information associated with one Yahoo email address that is stored at premises controlled by Yahoo In re Two email accounts stored at Google, Inc.

          MEMORANDUM AND ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         I. Procedural History

         On February 13, 2017, the government submitted to this court an application for a warrant pursuant to 18 U.S.C. § 2703 asking the court to order Yahoo to disclose email records associated with a particular Yahoo email address. The court finds that the affidavit appended to the application readily establishes probable cause to order Yahoo to disclose the information identified in Attachment B of the affidavit and proposed warrant. However, the warrant asks the court to order Yahoo to disclose “all responsive information-including data stored outside the United States-pertaining to the identified account that is in the possession, custody, or control of Yahoo.”

         On February 15, 2017, the government submitted an application asking the court to order Google to disclose email records associated with two particular Gmail email addresses. This application also asks the court to order disclosure without regard to where the data may be stored. As with the affidavit above, the court finds that the affidavit appended to the application readily establishes probable cause to order Google to disclose the information identified in Attachment B of the affidavit and proposed warrant.

         II. Relevant Law

         Under the Stored Communications Act (SCA) the government may obtain a warrant for “disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system.” 18 U.S.C. § 2703(a). Translated into simplified terms relevant to the present case, this means that a federal law enforcement officer can ask a United States Magistrate Judge to issue a warrant compelling an email service provider (e.g., Google, Yahoo, Microsoft, etc.) to disclose emails associated with a particular email address. (The statute covers other sorts of information and the relevant application seeks details other than emails, such as account information, but for the sake of simplicity the court will refer here to emails.) If the law enforcement officer demonstrates that there is probable cause to believe that the emails will contain evidence of a crime, the court will order the email service provider to disclose the emails sent from or received at the identified email address.

         With respect to search warrants generally, under certain circumstances a magistrate judge may issue a warrant authorizing a search in a district other than his or her assigned district. Fed. R. Crim. P. 41(b)(2)-(6). However, aside from narrow exceptions related to searches in a “territory, possession, or commonwealth” of the United States, and properties associated with consular missions, Fed. R. Crim. P. 41(b)(5), Rule 41 is silent as to whether a federal court may issue a warrant for search of property outside of the United States.

         III. Relevant Facts

         Because the facts presented in the applications relate to ongoing criminal investigations and unexecuted warrants, they will be addressed here in only the broadest terms. For present purposes it is sufficient to state with respect to the application in 17M1234 that investigators learned a person in the United States communicated to an associate through emails sent to and received from the target email address. In the application the affiant identifies the person believed to be in control of the target email address and identifies the European country where that person is believed to reside.

         The application assigned case number 17M1235 relates to the further investigation of persons who have already been indicted in this district. There is no indication that the relevant email accounts were used by persons outside the United States.

         In neither application does that government state that it knows where the data sought might be stored, although both state that it is possible that some of the information sought may be stored on servers located outside of the United States.

         IV. Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016)

         The question of whether a warrant issued pursuant to 18 U.S.C. § 2703 may compel an email service provider to disclose emails held on servers outside the United States came to the fore recently in Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016). Served with a warrant under the SCA requiring the production of a user's emails, Microsoft determined that some of the information sought was stored at a datacenter in Ireland. Id. at 204. Microsoft produced data that was stored in the United States but moved to quash the warrant to the extent it compelled Microsoft to produce content stored on a server located outside the United States. The motion to quash was denied by the magistrate judge who issued the warrant and a district judge. Microsoft appealed to the United States Court of Appeals for the Second Circuit.

         The court of appeals noted that, unless Congress explicitly states otherwise, it is presumed that a statute's reach is limited to the borders of the United States. Id. at 210 (citing Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Cmty., 579 U.S.___, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016)). The court stated that “the SCA is silent as to the reach of the statute as a whole and as to the reach of its warrant provisions in particular.” Id. at 209. The court concluded, and the government conceded, that the warrant provisions of the SCA do not contemplate or permit ...


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