Cloud Act Sponsor ‘Hopeful’ It Gets Attached to Omnibus

During a conversation on Capitol Hill, Coons described his recent overseas trip with a bipartisan group of six senators, who met with U.K. National Security Adviser Mark Sedwill and British Foreign Secretary Boris Johnson. Sedwill and Johnson made it “abundantly clear” that data collection will be the top priority for U.S.-U.K. relations, he said. “I think the Cloud Act both serves America’s national security interests, modernizes a badly outdated piece of legislation and will help strengthen our security alliances with a number of key European allies, so I’m hopeful we move forward,” he said. Coons said the Supreme Court hinted it would prefer Congress to act. “It’s more likely that we’re going to craft a more balanced solution, and statutory solution is always preferable to an interpretation of an outdated statute,” Coons said. The spending bill deadline is March 23. Offices for Grassley, Goodlatte and Cloud Act author Sen. Orrin Hatch, R-Utah, didn't comment.

Some privacy groups remain strongly opposed to the legislation. ACLU Legislative Counsel Neema Singh Guliani said Friday the bill would lower the bar for foreign entities seeking data from U.S. providers in criminal investigations. The current mutual legal assistance treaty framework allows a “robust process,” with judicial and congressional oversight, she said, saying the Cloud Act would shift the balance of power to the executive branch and allow foreign governments to retrieve American data with standards potentially lower than those for U.S. warrants. “I think that people who are suggesting that it is good for consumers are not considering all the dangers posed by the legislation,” she said. Electronic Frontier Foundation Fellow Camille Fischer said the bill would allow DOJ to enter into agreements with countries that have far lower privacy standards, like Saudi Arabia. Though the queries would be limited to non-U.S. targets, there could be incidental data collection of U.S. citizens, she said.

Center for Democracy & Technology Senior Counsel Greg Nojeim said the bill raises human rights issues that proponents have been unwilling to address, most notably the warrant for content requirement that privacy groups have been seeking. Lacking that requirement means the bill takes care of industry and government interests but does “nothing to protect consumers,” he said.

Computer & Communications Industry Association Senior Policy Counsel Bijan Madhani said industry supports the warrant for content requirement, though it’s not a “must have.” He called the bill a rare example of something that both industry and DOJ endorse, though any addition of the warrant requirement could alter DOJ’s position. Negotiation is expected over requirements for countries trying to qualify for bilateral agreements with the U.S., which would allow foreign law enforcement to submit requests directly to American service providers. There will be questions about due process standards and historical civil liberties track records, he said.

Information Technology Industry Council Senior Vice President-Government Affairs Andy Halataei said the industry has been waiting three decades for a bill like the Cloud Act, since modern technology needs modern law. He argued it’s important that Congress act to avoid a potential decision from the Supreme Court that could hinder the free flow of data across the globe, which would harm U.S. dominance for cloud services. ITI Vice President-Government Affairs Shannon Taylor said if the court rules in favor of the government, multinational companies would be in a “no-win” situation, maneuvering between conflicting international laws.

Information Technology and Innovation Foundation Vice President Daniel Castro called approval for the Cloud Act an “uphill battle,” saying it has been a long time since the legislative branch dealt with legislation in regular order in a meaningful way on almost any tech issue.