Google’s conduct is a “willful and contemptuous disregard of various court orders.”
The Justice Department is demanding that a federal judge sanction Google for failing to abide by court orders to turn over data tied to 22 e-mail accounts. “Google’s conduct here amounts to a willful and contemptuous disregard of various court orders,” the government wrote (PDF) in a legal filing to US District Judge Richard Seeborg of California.
The government added in its Wednesday brief:
Google is entitled to have its own view of the law and to press that view before a court of competent jurisdiction. However, when faced with a valid court order, Google, like any other person or entity, must either comply with such an order or face consequences severe enough to deter willful noncompliance. The issue before this court is what sanction is sufficient to achieve that goal.
Google said it wasn’t complying with the order because it was on appeal. Google also said it was following precedent from a New York-based federal appellate court that ruled Microsoft doesn’t have to comply with a valid US warrant for data if the information is stored on overseas servers. Google is appealing the California warrant to the San Francisco-based 9th US Circuit Court of Appeals on the same grounds. However, neither Seeborg nor the 9th Circuit is bound by the 2nd Circuit Court of Appeals’ decision— which the government has appealed to the US Supreme Court. (The US circuit courts of appeal are not bound to follow rulings by their sister circuits, but they all must obey precedent from the Supreme Court.)
“Google therefore does not intend to comply with the August 14 Order while seeking appellate review,” the company wrote Judge Seeborg. Google was asking the court to be held in civil contempt in a bid to speed up the appellate process of its case. Such a move, which on its face seems counterintuitive, has been done before.
In the Microsoft case, the government and Microsoft agreed to have Microsoft held in contempt so as to hasten the appellate process and get that case before the Supreme Court in a quicker fashion than without a contempt ruling. What’s different now, however, is that the government wants the judge to sanction Google as well. The government did not seek sanctions against Microsoft, and it didn’t seek sanctions against Google in a different case on the topic of whether the US tech sector must comply with US warrants for data stored on overseas servers.
According to Google:
The government agreed to a similar stipulation in the Microsoft case, and indeed it recently entered into such a stipulation with Google in another jurisdiction with stayed sanctions identical to those Google sought here. In this case, however—despite this Court’s recognition that Google is proceeding in good faith in this litigation to seek clarity on an important legal issue—the government refused to enter into any stipulation with a stay of sanctions.
The government noted that “the customary sanction for an individual’s refusal to comply with court-ordered disclosure is immediate imprisonment.” But the authorities are not pressing for that because “a corporate entity obviously cannot be imprisoned for its refusal to comply with a court order, the usual contempt sanction imposed against corporate entities is a fine.”
The government, meanwhile, accused Google of fashioning a system that kept consumer data stored on various servers across the globe—just so it could defy court orders.
Even more alarming is the fact that Google went out of its way, 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.
While it’s not clear that any amount of monetary sanctions could hurt Google’s bottom line, the search giant has two weeks until it must respond. A hearing will come soon after.
“The discrepancies in court decisions underlines our view 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,” Google said in a statement.
This story becomes even more legally complex and nuanced because Google has agreed to comply with warrants if they seek data that is on one of its oversees servers. But despite challenging dozens of warrants, it has given up fresh challenges while continuing to fight others that were in the legal pipeline.
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 data stored on its servers in Ireland.
The Supreme Court is expected to announce any day whether it will hear the government’s appeal of that Microsoft case, 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.
Courts outside the 2nd Circuit’s jurisdiction have routinely scoffed at that court’s Microsoft ruling and have ordered companies to comply with warrants if they can access the data from within the United States, regardless of where the data is stored.