Rep. Doug Collins (R-Ga.), who introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act in the House this February, released the following statement in response to its inclusion in the newly released funding bill:
“The CLOUD Act frames a path for guarding the privacy of American data while enabling law enforcement to combat crime and terrorism in the digital age, and I welcome the inclusion of this thoughtful solution in a bill that also brings crucial funding to our troops. The 21st-century never fails to bring us new challenges, and it’s the job of Congress—not the courts—to deliver balanced updates like the CLOUD Act to our statutes.”
Collins introduced the bill with a bipartisan group of lawmakers including lead cosponsor Rep. Hakeem Jeffries (D-N.Y.) and cosponsors Reps. Suzan DelBene (D-Wash.), Darrell Issa (R-Calif.), Tom Marino (R-Pa.) and John Rutherford (R-Fla.). Sens. Orrin Hatch (R-Utah) and Chris Coons (D-Del.) led the introduction of the CLOUD Act in the Senate.
The legislation would better balance the interests of cloud users while incentivizing bilateral agreements for law enforcement to fight crime.
Clarifying Lawful Overseas Use of Data Act of 2018 Pillars:
- Bilateral Agreements: The CLOUD Act enables the United States 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 United States, 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.