US Senators introduce bill to establish framework for cross-border access to communications data by law enforcement
February 7, 2018
On February 6, 2018, four US Senators announced a bipartisan bill entitled the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which would profoundly modify the rules for cross-border access to data for law enforcement purposes. In particular, the bill would amend the Stored Communications Act (SCA) and the Electronic Communications Privacy Act (ECPA) of 1986, which set the rules for disclosure of stored communications data, and is at the center of the so-called Microsoft Ireland case, which will be heard by the US Supreme Court in February 2018.
Under the CLOUD Act, providers of electronic communications services would be required to hand over communications data to law enforcement if they are in “possession, custody or control” of such data, irrespective of the location at which the data is held. To address the extraterritorial reach of warrants, it would also introduce a mechanism to allow providers to challenge warrants if the provider believes that the disclosure of data would violate the laws of a foreign government. If providers apply for a motion to quash, a court would be required to conduct a comity analysis, to evaluate whether the warrant infringes upon a foreign country’s jurisdiction.
In addition, the bill would allow foreign governments to request data from US-based service providers if they have entered executive agreements with the US government. The US Attorney General and Secretary of State would need to determine the levels of respect of human rights, of rule of law norms ad of procedural requirements in the foreign government’s country sufficient for the latter to qualify for such an executive agreement.
The CLOUD Act would address the legal tensions underlying the Microsoft Ireland case, and reportedly could moot the case currently being heard in the US Supreme Court. Major tech companies Apple, Facebook, Google, Microsoft and Oath signed a letter on February 6, 2018, supporting the CLOUD Act and describing it as “an important step toward enhancing and protecting individual privacy rights, reducing international conflicts of law and keeping us all safer.”
Read the CLOUD ACT Bill, the LETTER OF SUPPORT BY TECH COMPANIES, and on Lawfare
