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Cloud Act Passes: Allows Extraterritorial Governmental Access

Thursday, March 29, 2018   (0 Comments)
Posted by: Mary Mack
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Large technology companies took matters into their own hands to fix the outdated Stored Communications Act in Congress rather than waiting for the Supreme Court to decide the Microsoft case where Judge James Francis IV allowed a US warrant for data stored by Microsoft in Ireland.  Apple, Google and Microsoft supported the legislation and the Electronic Freedom Foundation and ACLU opposed the legislation.  It was folded into the Omnibus Bill passed last week and signed into law without hearings.

Click here for a background on the bill

The bill has a preservation requirement, a process to quash and a comity analysis :

“(3) COMITY ANALYSIS.—For purposes of making a determination under paragraph (2)(B)(ii), the court shall take into account, as appropriate—

(A) the interests of the United States, including the investigative interests of the governmental entity seeking to require the disclosure;

(B) the interests of the qualifying foreign government in preventing any prohibited disclosure;

(C) the likelihood, extent, and nature of penalties to the provider or any employees of the provider as a result of inconsistent legal requirements imposed on the provider;

(D) the location and nationality of the subscriber or customer whose communications are being sought, if known, and the nature and extent of the subscriber or customer’s connection to the United States, or if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the nature and extent of the subscriber or customer’s connection to the foreign authority’s country;

(E) the nature and extent of the provider’s ties to and presence in the United States;

(F) the importance to the investigation of the information required to be disclosed;

(G) the likelihood of timely and effective access to the information required to be disclosed through means that would cause less serious negative consequences; and

(H) if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the investigative interests of the foreign authority making the request for assistance.

(4) DISCLOSURE OBLIGATIONS DURING PENDENCY OF CHALLENGE.—A service provider shall preserve, but not be obligated to produce, information sought during the pendency of a motion brought under this subsection, unless the court finds that immediate production is necessary to prevent an adverse result identified in section 2705(a)(2)."

Read the full text of the bill here


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