Just as the Supreme Court is considering the legality of extraterritorial demands for communications held by US internet service providers in overseas data storage, Congress is doing all it can to short-circuit the debate. Tucked away towards the back of a 2,200-page spending bill is something called the “Clarifying Lawful Overseas Use of Data Act” or (of course) “CLOUD Act.” (h/t Steve Vladeck)The CLOUD Act [PDF – starting at p. 2201] would make any decision by the Supreme Court extraneous. If it agrees with Microsoft — as lower courts have — that the US has no right to demand communications stored overseas with a normal warrant, the Act would immediately overturn the decision. If it decides against Microsoft, it will be aligned with the new law. As it stands now, the route most likely to be taken by the Supreme Court is a punt. Legislation on point is in play and the Court will probably be more than happy to let legislators make the final call.Beyond the obvious problem of giving US law enforcement permission to use regular warrants to bypass mutual assistance treaties, the law also allows for reciprocation. We can’t go around waving SCA (Stored Communications Act) warrants in foreign lands without expecting pushback from locals. So, we’ll have to give foreign countries the same privileges, even if the criminal charges being investigated wouldn’t be considered criminal acts in this country and the country enjoying this reciprocation doesn’t care much about its own citizens’ rights and privacy.The EFF is especially critical of the shoehorned-in CLOUD Act. As it points out, the law would result in backdoor searches of anyone’s communications via reciprocal communication demands. In the US, we’ve already seen the Fourth Amendment circumvented by US government agencies via their access to NSA collections. The same would happen in reverse when other countries start playing by the CLOUD Act’s new rules.
Source: House Staples Extraterritorial Search Permissions Onto 2,232-Page Budget Bill; Passes It | Techdirt
