A Vt. Court Ordered Google To Provide Overseas Data. Will The State Supreme Court Agree?

Sep 8, 2017

This summer, the Addison unit of the Vermont Superior Court ordered Google to turn over customer data that the tech giant stored on overseas servers. The case is one of many around the country that pits tech companies against government, spurring a debate about privacy rights in the era of cloud computing.

Google is now appealing the decision to the Vermont Supreme Court, citing another court’s decision in a similar case involving Microsoft. In that case, the U.S. Court of Appeals for the Second Circuit ruled that Microsoft does not have to turn over user data that is stored on servers overseas.

Vermont Law School professor Jeannette Eicks says that legal precedent is not very solid.

“Interestingly enough, while the case went for Microsoft and they didn’t have to turn over data files that were stored in Ireland, in the instance of the appeal and the request … [to the U.S. Court of Appeals for the Second Circuit], the Second Circuit denied that, which is why it’s being appealed to the U.S. Supreme Court. But in denying that, there was a dissenting opinion, and the denial was a 4-4 split decision,” she said.

The dissenting opinion in the Microsoft case made the case that tech companies should be required to hand over user data that’s stored overseas if it’s requested under a warrant. Because that decision was a 4-4 tie, Eicks says, many states are relying on that dissenting opinion as they make their own legal arguments trying to compel tech companies to hand over data stored overseas.

“Many states are on board with this,” she says, “and a lot of states are deciding for turning over the data, and they’re using the dissent in what scholars are calling Microsoft II.

The data that Vermont is seeking from Google is related to a case of alleged sexual exploitation of children. Eicks says that even though the morality of turning over data in this case seems clear, Google is resisting because of the precedent it would set if the company shares user data stored overseas.

"If this was a case of civil disobedience, suddenly the tech companies don't want to be in the middle of those cases. It becomes a politically difficult situation for them." – Jeannette Eicks, Vermont Law School

“In the case of child exploitation, everyone can clearly see that the data should be turned over, and it feels very good to turn the data over,” Eicks says. “However, if this was a case of civil disobedience, suddenly the tech companies don’t want to be in the middle of those cases. It becomes a politically difficult situation for them.”

The dueling legal opinions stem from the fact that Congress has not updated the nation’s laws to address how data stored in the “cloud” – that is, stored on various servers in different locations and transferred back to the user over the internet – should be treated.

The U.S. Supreme Court may settle the issue in deciding the Microsoft case appeal, but Eicks says the nature of cloud computing means questions could go unanswered.

“There are certainly arguments out there that data should be unterritorial, meaning that data is [legally considered to be] everywhere and nowhere in the cloud," she says. "When the federal laws were originally written, they did not consider the cloud.”