Possibility Remains for Omnibus Inclusion of Cloud Act
It remains possible for the Clarifying Lawful Overseas Use of Data Act (Cloud) (S-2383/HR-4943) to be included in the omnibus spending bill (see 1803150059), lead sponsor Rep. Doug Collins, R-Ga., told us Thursday: “There’s always chances for everything. Everything is in play.” The spending bill deadline is March 23.
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Speaking at an event on Capitol Hill, lead Senate sponsor Orrin Hatch, R-Utah, argued the legislation will help law enforcement access essential cross-border data and free tech companies stuck between conflicting international laws. Citing the “Microsoft Ireland” case, Hatch said the Supreme Court has recognized that a workable path forward can come only from Congress, calling the Cloud Act a “tremendously important piece of legislation” (see 1802270052 and 1803020051).
One major criticism is that the Cloud Act would allow foreign governments with lower standards to access U.S.-stored data, though the legislation excludes American targets. A group of privacy, civil liberty and human rights organizations wrote a letter to Congress this week opposing the bill. The group, which included the American Civil Liberties Union, had concerns about: allowing foreign governments access to U.S. data without meeting constitutional standards; giving the executive branch excessive power; allowing foreign wiretaps that aren't up to standard; and foreign access to data resulting in human rights abuses. ACLU Legislative Counsel Neema Singh Guliani acknowledged during a conference call Thursday it’s “very possible” the legislation is included in the spending bill. The Cloud Act jeopardizes the safety of human rights defenders around the world, Amnesty International USA Senior Director-Campaigns Naureen Shah said during the call.
Asked about concerns over foreign standards, Hatch told us, “I’ve had nothing but praise for the Cloud Act” and said it would solve the issue of cross-border data access in an “intelligent way.” The event was hosted by the Software & Information Industry Association.
During an event panel, Deputy Assistant Attorney General-National Security Division Brad Wiegmann argued the Cloud Act protects U.S. national security and public safety and allows more effective criminal investigations abroad. Robust requirements for bilateral agreements will mean not all countries qualify, he said. Microsoft and DOJ voiced support for the bill. The legislation includes appropriate safeguards to ensure law enforcement standards are met, Google Senior Policy Counsel David Lieber said Thursday.
U.K. First Secretary of Home Affairs Kevin Adams, assigned to the British Embassy in Washington, called the act an opportunity to authorize a framework for like-minded allies to combat illegal activity. Data access is critical for dealing with the rising tide of terrorism across Europe and the U.K., he said. A similar EU legislative proposal is coming in the next few weeks, EU Delegation to the U.S. Counsellor Aymeric Dupont said, saying the EU shares some of the same goals as the U.S. Though the EU legislation doesn’t provide a process for EU-U.S. agreements on data collection, that possibility remains open, he said.