Without any public hearings, review, or public comment Congress created the CLOUD Act which was signed into law as part of the $1.3 trillion government spending bill which changed the 1986 Stored Communications Act (SCA). The SCA was created to protect privacy in telephone records and with the advent of the Internet has been used by ISPs (Internet Service Providers) to restrict access to Internet content except with the owner’s permission in the US.
As a result of the CLOUD Act on April 17, 2018 the Supreme Court dismissed the US v. Microsoft case after hearing arguments on February 27, 2018 regarding Microsoft’s reliance on the 1986 SCA to refuse to produce emails in Ireland of an alleged drug dealer.
The Electronic Frontier Foundation made these comments about the CLOUD Act in March that it “is a far-reaching, privacy-upending piece of legislation that will”:
Enable foreign police to collect and wiretap people’s communications from U.S. companies, without obtaining a U.S. warrant.
Allow foreign nations to demand personal data stored in the United States, without prior review by a judge.
Allow the U.S. president to enter “executive agreements” that empower police in foreign nations that have weaker privacy laws than the United States to seize data in the United States while ignoring U.S. privacy laws.
Allow foreign police to collect someone’s data without notifying them about it.
Empower U.S. police to grab any data, regardless if it’s a U.S. person’s or not, no matter where it is stored.
The CLOUD Act will have an interesting impact on privacy (and eDiscovery).
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.