A dozen privacy and human rights groups have opposed the bipartisan CLOUD Act regulating cross-border data access, claiming that it will erode basic liberties. They describe the bill as helping “empower” foreign governments to commit human rights abuses; endangering constitutional rights; and even, in an email sent to the Hill this week, undercutting LGBT rights around the world.
We respectfully disagree. Contrary to these claims, the bill would improve privacy and civil liberties protections compared to a world without such legislation.
This opposition to the CLOUD Act has so far focused on a provision authorizing the president to enter into executive agreements in order to facilitate cross-border access to communications content in the investigation of serious crimes. Absent such an agreement, U.S. law requires foreign governments to make a diplomatic request for any such data that is U.S.-held, employing what is known is the Mutual Legal Assistance (MLA) process. There is broad consensus, however, that the current MLA system is slow, cumbersome and in need of updating to handle the growth of online cloud services and the globalization of criminal evidence.
The bill provides that needed update. It lifts blocking provisions for certain types of requests from certain rule of law-abiding governments: Partner governments can, pursuant to a long list of qualifications, directly request data of non-U.S. persons from U.S.-based providers without going through the MLA process. If the foreign government wants to request the data of a U.S. citizen or resident, it still needs to employ the MLA system. The bill sets forth a long list of privacy and human rights criteria as to the contours of those requests.
What’s more, for the first time, the bill sets up a mechanism for the U.S. government to review what foreign governments do with data once it is turned over. This is a privacy win—something that that no foreign government has agreed to in the past. In our view, these criteria will raise privacy protections on a global scale.