Sens. Orrin Hatch, R-Utah; and Chris Coons, D-Delaware, applauded the inclusion of their legislation, the CLOUD — Clarifying Lawful Overseas Use of Data — Act in the 2018 federal funding bill.
The CLOUD Act will help put the U.S. and other countries on a path toward resolving the problem of cross-border data requests by law enforcement in the age of email and cloud computing.
"In a globalized world, we need clear rules governing access to data stored abroad," said Coons. "Our legislation is supported by law enforcement and the tech community, and I’m excited that it’s been included in the 2018 federal funding bill. This legislation will go a long way toward protecting data across borders and encouraging fair treatment by our international partners. I’m grateful to have worked with Sens. Hatch, Graham and Whitehouse on this important issue."
Existing law in the U.S. and around the world has failed to keep pace with the evolution of internet-based communications technology, often referred to as cloud computing. U.S. and foreign law enforcement investigating crimes increasingly rely on the assertion of extraterritorial authority to seek data stored outside their borders — data that is often essential to preventing and solving crime. Technology companies, in turn, are caught between a rock and a hard place: confronting obligations to disclose data in one country while simultaneously facing laws in other countries that prohibit disclosure.
The CLOUD Act will encourage governments to develop a clear framework for technology companies to comply with investigative demands. The legislation incentivizes countries to remove conflicts of law and raise privacy standards.
CLOUD Act of 2018 Pillars:
— Bilateral agreements: The CLOUD Act enables the U.S. to enter into formal agreements with other nations to set clear standards for cross-border investigative requests for digital evidence. The CLOUD Act further identifies a series of statutory requirements that these agreements must satisfy, including privacy and security protections.
— Extraterritoriality of U.S. warrants and international comity: The CLOUD Act amends U.S. law to make clear that U.S. warrants and other legal process issued for data held by communications providers reach data stored anywhere in the world. The reach of U.S. warrants and legal process, however, would be limited by international comity. The CLOUD Act would give providers, for the first time, a statutory right to challenge legal process based on international comity concerns.
— Transparency: When a communications provider receives a request from U.S. law enforcement related to a national or resident of a country that has entered into a bilateral agreement with the U.S., the provider will be permitted to notify that government of the existence of the request. This will allow the foreign government to assess compliance with the terms of the bilateral agreement and enable it to intervene diplomatically if it believes the request is inappropriate.
— Reciprocity: The CLOUD Act would also require participating countries to remove legal restrictions that prevent compliance with data requests from U.S. law enforcement. To qualify for the statutory benefits of the legislation (removal of the U.S. blocking statute, a right for providers to object based on international comity and a right for providers to notify the government of the existence of requests), a foreign government must provide reciprocal rights and benefits to U.S. law enforcement and communications providers.