Policy Highlight: CLOUD Act (S 2383 / HR 4943)

The CLOUD Act passed thorugh both the United States House of Representatives and Senate on Thursday, as part of a larger omnibus spending bill.

What Is The CLOUD Act?

The CLOUD Act will, in brief, allow the United States to gain access to foreign communications without the usually-required warrant. It also allows other countries to reciprocally gain access into communicaitons of United States citizens, with few restrictions. The bill has very few vetting measures in regards to which nations can enter into information sharing agreements, meaning it’s likely that authoritarian regimes and those that violate human rights may use this law to access the data of United States citizens. The bill has far-reaching implications on citizen privacy and expands greatly surveillance power of governments around the world. Additionally, it is direct violation of 4th Amendment rights and has some alarming implications on the human rights front.

As described by TechDirt, the law allows the US to use “regular warrants to bypass mutual assistance treaties.” The law is so open that it could in effect result in backdoor searches of any communications via “reciprocal communications demands.”  EFF additionally explains the ins-and-outs of the bill as follows:

  • Foreign police can collect peoples’ communications from US companies, without obtaining a US warrant
  • Foreign nations can demand personal data stored in the US, without prior review by a judge
  • US president can enter “executive agreements” allowing police in foreign nations with weak privacy laws to seize data in the US, disregarding US privacy laws
  • Foreign police can collect data without notifying the person
  • US police can grab any data, from any person domestic or foreign, no matter where it is stored

Golden Frog’s Rating

Legislation on this front is a necessity. However, the bill’s language simply ignores protections established in the 4th Amendment and allows for virtually limitless access into communications without due process, and grants this access to almost any nation in the world. The law’s vetting process for whom to enter into agreements with is very weak. That said, supporters have a valid point in claiming this bill could stall out the recent trend by governments to localize all data in order to guarantee law enforcement access.

We score this bill a 2 on our Scorecard, but respect the effort in attempting to address some much needed reform. We are also hopeful some meaningful changes are adopted along the way to address constitutional protections, which would also allow us to score it higher.