• by Ray Schultz , Columnist, March 22, 2018

One of the many items stuffed into the U.S. spending bill — a bill that had to be passed by both houses of Congress by midnight Friday to continue funding the government — is the Clarifying Lawful Overseas Use of Data [CLOUD] Act. This would resolve the email privacy issue now before the Supreme Court in the case of U.S. vs. Microsoft.

As argued before the High Court earlier this month, the Department of Justice contends that Microsoft must disclose emails needed in a drug investigation that are stored in the cloud in Ireland. The Justices seemed to learn toward the DOJ’s view. 

The CLOUD Act would allow law enforcement to access emails and other digital data even if stored overseas, through the use of search warrants. 

Warrants could be utilized when seeking information from partner countries, thus skirting the normal treaty process, reports state.   

According to Reuters, current mutual legal assistant treaties “involve a formal diplomatic request for data and require the host country to obtain a warrant on behalf of the requesting country. That can often take several months and are considered burdensome by law enforcement.”

Microsoft approves of the legislation.

“The CLOUD Act creates a modern legal framework for how law enforcement agencies can access data across borders,”  states Brad Smith, president and chief legal officer of Microsoft, in a post. 

He adds that the bill “also responds directly to the needs of governments frustrated about their inability to investigate crimes in their own countries,” while ensuring “appropriate protections for privacy and human rights.”  

The Senate bill’s co-author, Sen. Orrin Hatch (R-Utah), states: "The CLOUD Act will create a clear, balanced framework for law enforcement to access data stored in other countries while at the same time encouraging our allies to strengthen their domestic privacy laws.”

However, As MediaPost’s Wendy Davis reported in February, the Electronic Frontier Foundation (EFF) argues that “the CLOUD Act would give unlimited jurisdiction to U.S. law enforcement over any data controlled by a service provider, regardless of where the data is stored and who created it," the EFF writes.

The EFF adds: “The breadth of such unilateral extraterritorial access creates a dangerous precedent for other countries who may want to access information stored outside their own borders, including data stored in the United States."

During oral arguments in the Microsoft case, Justice Ruth Bader Ginsburg observed that “Congress can write a statute that takes account of various interests. And it isn't just all or nothing.” 

She inferred that rather than SCOTUS making a decision, it might be wiser for Congress to regulate “this brave new world.”

The $1.3 trillion omnibus spending bill, containing many controversial provisions, was passed by the House on Thursday morning. But it faced some opposition in the Senate.