Implications of CLOUD Sample Paper 2020
Over the last few days there has been much coverage of the Clarifying Lawful Overseas Use of Data (CLOUD) Act that Congress included in the Omnibus Spending Bill that passed on March 23rd. Please prepare a briefing on the implications of this act. Consider the first order effects of this law, but also address the second order effects that may come from having mutual legal assistance agreements with countries that have different standards of freedom of speach and privacy than the United States. Be sure to cite your sources.
Implications of CLOUD
On the 23rd of March 2018, both chambers of Congress passed and the president signed the Clarifying Lawful Overseas Use of Data (CLOUD)Act into law, and thus creating a platform that the government can utilize in obtaining information held by technology organizations worldwide(General Chair-Hellerstein, Program Chair-Chaudhuri& Program Chair-Rosenblum, 2018). The implementation of this bill gained support across the board i.e. the White House, Department of Justice, other technological organizations, and the National Association of Attorneys General. This Act is part of the Consolidated Appropriations Act and possesses two primary components(Partisons, 2018). There several implications as a result of the establishment of this legislature, especially from having mutual legal assistance negotiations with countries that have varying standards of the freedom of privacy and speech.
The first part of this bill requires that orders are sued based on the Electronic Communications Privacy Act in relation to the access of data,and regardless of the location; one can obtain it(Chien, 2018). This aspect tends to address the issue that emerged between the United States vs. MicrosoftCorporation; the case that was presented in the Supreme Court on the 27th of February. It also develops a statutory mechanism that tech companies can utilize in challenging warrants in relation to the material risk of a clash with the established regulations of a foreign country. This is specifically for those countries that indulge in bilateral negotiations of the kind contemplated in the part II of the bill and those that can afford reciprocal comity rights to the United States(Jeffersons, 2018).
In addition to that, a provider is equipped with the ability to file a motion to either quash or modify the U.S. legal procedure if there are certain reasonable beliefs(Jeffersons, 2018). Theseinclude if the subscriber or consumer is not an American citizen or does not reside in U.S. and if there is the needed disclosure that would create material risks of the violation of the regulations of qualifying foreign governments(“Why the CLOUD Act is Good for Privacy and Human Rights”, 2018). The court can also interfere with the legal process under certain circumstances. Firstly, there is the discovery of the fact that the needed disclosure might violate the qualifying foreign institution’s law. Secondly, there are the interests of the justice system that dictate that the legal procedure ought to be modified. This is achieved by conducting a series of comity factors based on the statute and by also notifying the foreign party for them to raise various concerns where necessary.
The second part promotes the development of a framework for the newly established bilateral agreements with oversees governments for general information accessibility. These bilateral accords caused the U.S. and other participating countries to abolish legal restrictions that would have otherwise prohibited the tech providers from acceding to the other country’s juridical requests. Previously, these parties had to invoke the mutual legal assistance treaty (MLATs) in order to attain the evidence stored in another country(Rodriguez, Tan &Gkantsidis, 2018).Under this established process, the foreign governments seeking data from the U.S. providers would be required to request the Department of Justice to obtain a court order for that data(Rodriguez, Tan &Gkantsidis, 2018).This bill allows these foreign countries to directly serve legal procedures on the U.S. providers without necessarily making the MLAT request to the Justice system first.
For other governments with differing policies on privacy and freedom of speech, the CLOUD Act will have no influence over the U.S. organizations. Therefore, any obligation by the provider to comply with a foreign order issued pursuant to such an agreement must arise from the foreign laws (Johnsons &Riversons, 2018).It generally abolishes the established barriers that might otherwise prevent the U.S. providers from complyingwith the foreign institutions’ order but does not compel the former to comply with the latter(Bensons, 2018)..
It is important to comprehend the fact that not all governments can indulge in these bilateral negotiations in relation to the CLOUD Act. The attorney General ought to submit specifically written documents and certifications to the Congress regarding the interested party. The documents should contain the required specifications and criteria; whereby its domestic law ought to afford substantive robust and procedural protections for civil and privacy liberties(Bensons, 2018).Foreign governments must also adopt the procedures to minimize the acquisition and retention of information about U.S. persons and cannot impose a decryption obligation on providersthrough the agreement(Rodriguez, Tan &Gkantsidis, 2018).Lastly, the participating parties must agree to the occasional reviews by the United States government.
It directly responds to the frustrations of the foreign governments in relation to their inability to actively perform investigations in their individual countries. The above are addressed while guaranteeing adequate protections for both human rights and privacy. This, in turn, equips certain tech institutions, such as Microsoft with the capability to stand up for privacy liberties of their consumers. Another importance is promoting the prevention of governments from utilizing the new law in requiring that various U.S companies develop backdoors around encryption; an essential privacy safeguard. This passed bill will require the United States government to hasten their progress in establishing the present agenda with other like-minded countries, similar to that of the international agreements between the United Kingdom and the U.S.
This legislation tends to prohibit the targeting of the American resident and citizen’s personal data. For such information, foreign institutions ought to go through the MLAT system for them to obtain the necessary warrants based on a probable cause.This essential provision mirrors the common-sense notion that the set U.S. standards ought to continue to guard its people. Likewise, it is necessary that when other governments seek for information of its nationals, the U.S. has reduced justification rights to impose its policies simply since the data is stored in the latter and held by a U.S. based provider. It also prevents these foreign institutions from sharing that data back with the United States not unless it results in harm to the latter country’s persons. Therefore, it requires that the requests are particularized; meaning that there is specific targeting of people, address, accounts, and personal device(Robertsons& Thompsons, 2018).
These inquiries should be based on credible and articulate facts and reviewed by a judge, magistrate, court or other independent authority figures. There is also the need that live intercepts orders to have a limited duration at reasonable period in order to attain the approved purposes. The data can only be issued if similar information can be obtained by the utilization of other less intrusive measures. These limitation tracks tend to offer protection in the Wiretap Act. The bill also prevents the utilization of information to infringe the freedom of speech and expression. There is the need for the involved government to agree to compliance reviews. This will enable the U.S. to adequately track and comprehend how the information obtained is utilized, and thus protect it against abuse. In addition to that, it also dictates on which governments are eligible of entering into this kind of executive agreement, and hence enabling them to make certain requests(Bensons, 2018).
Other essential benefits include aiding foreign law enforcement in investigating various criteria of crimes. Foreign countries are also able to spy on each other. An excellent example of the hindrance provided by the previous system before the passing of this bill iswhen Facebook could not provide the chat logs of two UK citizens who executed and planned a murder in London to local law enforcement without going through a mutual legal assistance process(Johnsons &Riversons, 2018).. The U.S. Department of Justice obtained a court order on the United Kingdom’s behalf demanding that Facebook comply with the original request(Johnsons &Riversons, 2018). This procedure took a time period of ten months. Therefore the implementation of this legislature eased this entire investigatory procedure.
Important aspects to understand is that the providers of electronic communications services ought to comprehend the fact that stored information whether in or out of the country can be accessed based on this bill and the Stored Communications Act. There are established limitations for foreign governments with differing policies in terms of the type of orders that can be made.
In conclusion, there are various privacy rights established globally that facilitates the building of trust on international relations level, especially in terms of technology on a daily basis. This topic has continuously been a subject of litigation for some years and the current inclusion of the CLOUD Act in the Omnibus funding bill, which was negotiated by the congress leaders of both rival parties, is a fundamental step in resolving the surrounding issues. The proposed Act results in the creation of a modern legal framework, especially on the manner in which law enforcement departments can manage to gain access to information across borders. These and many others are the primary implications and benefits obtained from the establishment of this legislature.
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