SAN FRANCISCO (CN) – Federal prosecutors on Wednesday urged a judge to slap Google with higher sanctions for failing to comply with a court order that it hand over emails and other data the technology giant claims are beyond the reach of the U.S. government.
“The sanction itself needs to have significant teeth in order to compel Google, a $600 billion company, to change its behavior,” Department of Justice attorney Andrew Pak argued in court Wednesday.
Pak asked U.S. District Judge Richard Seeborg to deny Google’s request to hold it in contempt and issue stayed sanctions of $10,000 per day while Google appeals a ruling denying its motion to quash a search warrant.
Google claims that because the data sought by prosecutors is stored on an overseas server, the U.S. government lacks authority to seize the records under the Stored Communications Act.
In August, Seeborg denied Google’s request to overturn U.S. Magistrate Judge Laurel Beeler’s April 25 ruling ordering Google to hand over the data.
In a similar case being reviewed by the Supreme Court, the Second Circuit held in July 2016 that Microsoft did not have to comply with a warrant seeking data stored on servers in Dublin, Ireland. The Second Circuit’s three-judge panel noted in its opinion that the Stored Communications Act had “been left behind by technology” and was “overdue for congressional revision.”
Unlike in the Microsoft case, where data was clearly tethered to a user’s location, Beeler and Seeborg found Google’s reliance on an efficiency-optimizing algorithm to determine where it stores data would render virtually all of its records out of reach for federal investigators.
On Wednesday, Seeborg appeared skeptical of the government’s request to hold an evidentiary hearing to determine what amount might compel Google to comply with his ruling.
“I’m just not seeing where this evidentiary hearing to assess some very significant sanction amount is going to impact at the end of the day the fate of this material you want to get,” Seeborg said.
Google attorney Todd Hinnen, of Perkins Coie in Seattle, said the only reason his client is disobeying Seeborg’s order is because that’s the only avenue for Google to seek an appeal of the decision in the Ninth Circuit.
“If it weren’t necessary to protect its right to appeal, we wouldn’t be here,” Hinnen said. “Google would have produced the evidence. We do comply with thousands of orders unless there is a significant legal issue.”
But Seeborg also appeared to sympathize with the government’s argument that Google is abusing its status as a powerful technology company to avoid complying with the law.
“The biggest concern I have is this notion that a private entity can pick and choose when it’s going to respond to an order that says it must comply with a warrant,” Seeborg said. “Why should you be allowed to say because there’s some litigation in the Second Circuit, why should you be allowed to say, ‘We’re just not going to respond?'”
Hinnen reiterated that Google routinely complies with warrants and court orders. In this particular case, the technology giant has chosen to test the boundaries of the law through an appeal to resolve how the Stored Communication Act applies to tens of thousands of warrants issued across the country each year to Google and other technology firms.
“There’s a strong public interest in resolving this,” Hinnen said. “Google doesn’t have a position on whether it’s resolved by the Ninth Circuit or the Supreme Court or Congress.”
If the Supreme Court upholds the Second Circuit’s decision in Microsoft, Seeborg suggested that won’t necessarily resolve the Google dispute because Google’s data storage is based on an algorithm rather than clearly tethered to a specific location.
Pak pressed the judge to hold an evidentiary hearing to determine the dollar value of the public relations benefit Google receives for refusing to comply with court orders to turn over evidence. The federal prosecutor said sanctions must be high enough to pressure the company to preserve evidence and comply with the warrant.
Pak also asked the judge to take into account Google’s past behavior and failure to comply with court rulings as evidence of the need for higher sanctions.
But Google replied that it should not be punished for past behavior when it acted in good faith to protect its users and to comply with its understanding of the law, as supported by the Second Circuit’s decision in Microsoft.
“I understand your frustration with the position they are taking, and you think they’re driven by the public relations motivations and the like,” Seeborg told the federal prosecutors. “But I don’t understand why you think they’re going to be constantly unresponsive to orders of the court.”
After about 90 minutes of debate, Seeborg took the arguments under submission.
Google’s Mountain View, California-based parent company Alphabet reported $89.2 billion in annual revenue with a market value of $579.5 billion as of May 2017, according to Forbes.