Camille Fischer writes:
This week, Senators Hatch, Graham, Coons, and Whitehouse introduced a bill that diminishes the data privacy of people around the world.
The Clarifying Overseas Use of Data (CLOUD) Act expands American and foreign law enforcement’s ability to target and access people’s data across international borders in two ways. First, the bill creates an explicit provision for U.S. law enforcement (from a local police department to federal agents in Immigration and Customs Enforcement) to access “the contents of a wire or electronic communication and any record or other information” about a person regardless of where they live or where that information is located on the globe. In other words, U.S. police could compel a service provider—like Google, Facebook, or Snapchat—to hand over a user’s content and metadata, even if it is stored in a foreign country, without following that foreign country’s privacy laws.
Second, the bill would allow the President to enter into “executive agreements” with foreign governments that would allow each government to acquire users’ data stored in the other country, without following each other’s privacy laws.
For example, because U.S.-based companies host and carry much of the world’s Internet traffic, a foreign country that enters one of these executive agreements with the U.S. to could potentially wiretap people located anywhere on the globe (so long as the target of the wiretap is not a U.S. person or located in the United States) without the procedural safeguards of U.S. law typically given to data stored in the United States, such as a warrant, or even notice to the U.S. government. This is an enormous erosion of current data privacy laws.
This bill would also moot legal proceedings now before the U.S. Supreme Court. In the spring, the Court will decide whether or not current U.S. data privacy laws allow U.S. law enforcement to serve warrants for information stored outside the United States. The case, United States v. Microsoft (often called “Microsoft Ireland”), also calls into question principles of international law, such as respect for other countries territorial boundaries and their rule of law.
Notably, this bill would expand law enforcement access to private email and other online content, yet the Email Privacy Act, which would create a warrant-for-content requirement, has still not passed the Senate, even though it has enjoyed unanimous support in the House for the past two years.
The CLOUD Act and the US-UK Agreement
The CLOUD Act’s proposed language is not new. In 2016, the Department of Justice first proposed legislation that would enable the executive branch to enter into bilateral agreements with foreign governments to allow those foreign governments direct access to U.S. companies and U.S. stored data. Ellen Nakashima at the Washington Post broke the story that these agreements (the first iteration has already been negotiated with the United Kingdom) would enable foreign governments to wiretap any communication in the United States, so long as the target is not a U.S. person. In 2017, the Justice Department re-submitted the bill for Congressional review, but added a few changes: this time including broad language to allow the extraterritorial application of U.S. warrants outside the boundaries of the United States.
In September 2017, EFF, with a coalition of 20 other privacy advocates, sent a letter to Congress opposing the Justice Department’s revamped bill.
The executive agreement language in the CLOUD Act is nearly identical to the language in the DOJ’s 2017 bill. None of EFF’s concerns have been addressed. The legislation still:
- Includes a weak standard for review that does not rise to the protections of the warrant requirement under the 4th Amendment.
- Fails to require foreign law enforcement to seek individualized and prior judicial review.
- Grants real-time access and interception to foreign law enforcement without requiring the heightened warrant standards that U.S. police have to adhere to under the Wiretap Act.
- Fails to place adequate limits on the category and severity of crimes for this type of agreement.
- Fails to require notice on any level – to the person targeted, to the country where the person resides, and to the country where the data is stored. (Under a separate provision regarding U.S. law enforcement extraterritorial orders, the bill allows companies to give notice to the foreign countries where data is stored, but there is no parallel provision for company-to-country notice when foreign police seek data stored in the United States.)
The CLOUD Act also creates an unfair two-tier system. Foreign nations operating under executive agreements are subject to minimization and sharing rules when handling data belonging to U.S. citizens, lawful permanent residents, and corporations. But these privacy rules do not extend to someone born in another country and living in the United States on a temporary visa or without documentation. This denial of privacy rights is unlike other U.S. privacy laws. For instance, the Stored Communications Act protects all members of the “public” from the unlawful disclosure of their personal communications.
An Expansion of U.S. Law Enforcement Capabilities
The CLOUD Act would give unlimited jurisdiction to U.S. law enforcement over any data controlled by a service provider, regardless of where the data is stored and who created it. This applies to content, metadata, and subscriber information – meaning private messages and account details could be up for grabs. The breadth of such unilateral extraterritorial access creates a dangerous precedent for other countries who may want to access information stored outside their own borders, including data stored in the United States.
EFF argued on this basis (among others) against unilateral U.S. law enforcement access to cross-border data, in our Supreme Court amicus brief in the Microsoft Ireland case.
When data crosses international borders, U.S. technology companies can find themselves caught in the middle between the conflicting data laws of different nations: one nation might use its criminal investigation laws to demand data located beyond its borders, yet that same disclosure might violate the data privacy laws of the nation that hosts that data. Thus, U.S. technology companies lobbied for and received provisions in the CLOUD Act allowing them to move to quash or modify U.S. law enforcement orders for extraterritorial data. The tech companies can quash a U.S. order when the order does not target a U.S. person and might conflict with a foreign government’s laws. To do so, the company must object within 14 days, and undergo a complex “comity” analysis – a procedure where a U.S. court must balance the competing interests of the U.S. and foreign governments.
Failure to Support Mutual Assistance
Of course, there is another way to protect technology companies from this dilemma, which would also protect the privacy of technology users around the world: strengthen the existing international system of Mutual Legal Assistance Treaties (MLATs). This system allows police who need data stored abroad to obtain the data through the assistance of the nation that hosts the data. The MLAT system encourages international cooperation.
It also advances data privacy. When foreign police seek data stored in the U.S., the MLAT system requires them to adhere to the Fourth Amendment’s warrant requirements. And when U.S. police seek data stored abroad, it requires them to follow the data privacy rules where the data is stored, which may include important “necessary and proportionate” standards. Technology users are most protected when police, in the pursuit of cross-border data, must satisfy the privacy standards of both countries.
While there are concerns from law enforcement that the MLAT system has become too slow, those concerns should be addressed with improved resources, training, and streamlining.
The CLOUD Act raises dire implications for the international community, especially as the Council of Europe is beginning a process to review the MLAT system that has been supported for the last two decades by the Budapest Convention. Although Senator Hatch has in the past introduced legislation that would support the MLAT system, this new legislation fails to include any provisions that would increase resources for the U.S. Department of Justice to tackle its backlog of MLAT requests, or otherwise improve the MLAT system.
A growing chorus of privacy groups in the United States opposes the CLOUD Act’s broad expansion of U.S. and foreign law enforcement’s unilateral powers over cross-border data. For example, Sharon Bradford Franklin of OTI (and the former executive director of the U.S. Privacy and Civil Liberties Oversight Board) objects that the CLOUD Act will move law enforcement access capabilities “in the wrong direction, by sacrificing digital rights.” CDT and Access Now also oppose the bill.
Sadly, some major U.S. technology companies and legal scholars support the legislation. But, to set the record straight, the CLOUD Act is not a “good start.” Nor does it do a “remarkable job of balancing these interests in ways that promise long-term gains in both privacy and security.” Rather, the legislation reduces protections for the personal privacy of technology users in an attempt to mollify tensions between law enforcement and U.S. technology companies.
Legislation to protect the privacy of technology users from government snooping has long been overdue in the United States. But the CLOUD Act does the opposite, and privileges law enforcement at the expense of people’s privacy. EFF strongly opposes the bill. Now is the time to strengthen the MLAT system, not undermine it.
 The text of the CLOUD Act does not limit U.S. law enforcement to serving orders on U.S. companies or companies operating in the United States. The Constitution may prevent the assertion of jurisdiction over service providers with little or no nexus to the United States.