POSTED BY Erik Boos

Google recently reported a surge in government demands for user data. During the first half of 2014, Google received 31,698 government requests, which do not include National Security Letters or requests under the Foreign Intelligence Surveillance Act (FISA). This leaves requests that fall under criminal or civil actions. Google’s Transparency Report describes how they handle these government requests.

Google’s Transparency Report lists the three demands for user data and the depth of data each demand will receive. A subpoena, which could be used in both criminal and civil cases, does not require judicial review, and will only provide basic user data such as name on account and IP addresses where the account was logged into with times and dates. The remaining demands, Electronic Communication Privacy Act (ECPA) court orders and search warrants, are exclusively used in criminal cases. Only search warrants will reveal the content of an email, making it difficult to compel discovery in a civil case either brought by the government or by a private party.

An obstacle a party to a civil action may face is tracking down communications, which would show culpability in a civil suit. Since electronic communications such as emails are one of the most common methods of communication, the opposing party has a significant interest in obtaining access to the emails. This leaves open the “crashed hard drive” defense. If a party claims the emails were lost or erased, it seems logical to retrieve the messages from the third party host, such as Google in the case of Gmail account messages. However, with Google’s tiered system a party claiming lost emails will be protected by the lack of an appropriate remedy.

Bio: Erik is a Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk Law. He holds a B.A. in History from Worcester State University.