{"id":479,"date":"2018-04-10T20:45:02","date_gmt":"2018-04-10T20:45:02","guid":{"rendered":"http:\/\/ielrblog.com\/?p=479"},"modified":"2018-04-10T20:45:02","modified_gmt":"2018-04-10T20:45:02","slug":"the-cloud-act-arguments-for-and-against","status":"publish","type":"post","link":"https:\/\/ielrblog.com\/index.php\/2018\/04\/10\/the-cloud-act-arguments-for-and-against\/","title":{"rendered":"The CLOUD Act: Arguments For and Against \u00a0"},"content":{"rendered":"

The DOJ and Microsoft have both filed motions to dismiss as moot the seminal data privacy case before the Supreme Court this term, United States v. Microsoft Corp. <\/em>At issue<\/a> in the case is whether the warrant provisions of the Stored Communications Act (SCA) apply extraterritorially, such that they compel Microsoft, an electronic service provider to produce private electronic communications stored on servers in Ireland for the United States government.<\/p>\n

In their respective motions, the two parties agree that there was no longer a \u201clive case or controversy\u201d with respect to the question presented, due to a piece of recently-enacted legislation called the Clarifying Lawful Overseas Use of Data Act (CLOUD Act). Congress attached the bipartisan legislation to an omnibus spending bill, and it was signed into law on March 23, 2018. The act states as follows:<\/p>\n

\u201cA provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider\u2019s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.\u201d<\/p>\n

The CLOUD Act also includes provisions governing foreign governments\u2019 access to U.S.-held data. Human rights and privacy organizations have opposed this part of the act the most. The CLOUD Act authorizes the president to enter into reciprocal data-sharing \u201cexecutive agreements\u201d with foreign governments. Human rights and privacy organizations like the ACLU, EFF and Amnesty International have denounced the executive agreement mechanism for giving unfettered access to U.S.-held data to foreign governments.<\/p>\n

It is worth noting, however, that the act puts forth significant requirements that foreign governments must meet in order to be considered a \u201cqualifying foreign government\u201d under the CLOUD Act. Among other requirements, the government in question must:<\/p>\n