Bonum Certa Men Certa

EPO and Microsoft Collude to Break the Law -- Part IV: The US CLOUD Act Passes Without Public Debate

Previous parts:



Cloudwashing law
Congress quietly slips cloud-spying powers into page 2,201 of emergency spending bill



Summary: "In 2013, the DoJ demanded that Microsoft grant it access to emails related to a narcotics case from a Hotmail account hosted in Ireland."

When Edward Snowden blew the whistle on the National Security Agency's PRISM program in 2013 and revealed what many had suspected – namely that US intelligence agencies were collecting vast amounts of data not only from US citizens, but from all around the world – public opinion received a badly needed wake-up call about the dangers of mass surveillance.



In the wake of these revelations, many countries became increasingly concerned about who could access their national information and the potential implications of cross-border data transfers. These concerns provided a catalyst for discussions focussing on the topic of what has come to be called "digital sovereignty" and/or "data sovereignty".

Another incident that put these topics into the spotlight was a dispute between Microsoft and the US Department of Justice (DoJ) which started in 2013.

"Despite having a major impact on how tech companies can be obliged to share user data with US and foreign governments, the CLOUD Act was passed by Congress without any public debate on 21 March 2018 and entered into force two days later."In 2013, the DoJ demanded that Microsoft grant it access to emails related to a narcotics case from a Hotmail account hosted in Ireland. Microsoft refused, arguing that a warrant issued under Section 2703 of the Stored Communications Act could not compel US companies to produce data stored in servers outside the US and that compliance with the requested transfer would result in the company breaking EU data protection law.

The initial ruling was in favour of the DoJ, with the presiding judge concluding that American companies “must turn over private information when served with a valid search warrant from US law enforcement agencies". Microsoft appealed to the US Second Circuit Court of Appeals which ruled in its favour in 2016 and invalidated the warrant. In response, the DoJ appealed to the US Supreme Court.

In March 2018, while the case was pending before the US Supreme Court, the US Congress passed the Clarifying Lawful Overseas Use of Data (CLOUD) Act which amended and extended the ECPA (Electronic Communications Privacy Act) and the SCA (Stored Communications Act).

"This highly controversial measure was buried on page 2,201 of a voluminous 2,232-page spending bill - the Consolidated Appropriations Act of 2018 - which was tabled and adopted as an emergency measure to prevent an impending government shutdown."Following agreement from both the DoJ and Microsoft, the US Supreme Court determined that the case had been rendered moot by the passage of the CLOUD Act and the issuing of a new warrant under the terms of the new legislation.

Despite having a major impact on how tech companies can be obliged to share user data with US and foreign governments, the CLOUD Act was passed by Congress without any public debate on 21 March 2018 and entered into force two days later.

This highly controversial measure was buried on page 2,201 of a voluminous 2,232-page spending bill - the Consolidated Appropriations Act of 2018 - which was tabled and adopted as an emergency measure to prevent an impending government shutdown.

Senators Rand Paul from Kentucky and Ron Wyden from Oregon raised procedural objections to the manner in which the CLOUD Act had been sneaked in as an appendage to the spending bill but ultimately they failed to block or stall the bill's adoption.

Ron Wyden on CLOUD Act
Ron Wyden complained about the CLOUD Act but failed to block its adoption



Privacy advocates at groups like the American Civil Liberties Union, the Center for Democracy and Technology and the Electronic Frontier Foundation criticized the legislation as “a new backdoor around the Fourth Amendment" which permitted the circumvention of constitutional protections against unreasonable searches by law enforcement agencies. They also argued that it could lead the US to send user data to police in countries known for abusing the human rights of their citizens.

"Privacy advocates at groups like the American Civil Liberties Union, the Center for Democracy and Technology and the Electronic Frontier Foundation criticized the legislation as “a new backdoor around the Fourth Amendment" which permitted the circumvention of constitutional protections against unreasonable searches by law enforcement agencies."On the other hand, US tech giants such as Microsoft, Google, Facebook, Apple, and Oath, applauded the legislation and sent a joint letter to the US Senate proclaiming that the CLOUD Act represented “notable progress to protect consumers’ rights".

The main effect of the CLOUD Act was to strengthen the powers of US law enforcement and intelligence agencies to access data held by US companies on foreign soil.

In a nutshell, the CLOUD Act amounted to a consolidation and expansion of the arrangements established by the earlier 2001 PATRIOT Act which had significantly extended the government's powers of access to data held by US-based global providers, irrespective of the storage location of that data.

This might help to explain why those pushing for the adoption of the measure preferred to avoid public debate by sneaking it in as a hidden appendage to an emergency spending bill.

On the other side of the Atlantic, the passage of the CLOUD Act gave a new impulse to the ongoing political debate about "digital sovereignty".

A year after the passage of the Act, an article in the French paper Les Echos reported that "[m]any observers feel that American justice could be deploying [the Cloud Act] for purposes of economic espionage.”

"In a nutshell, the CLOUD Act amounted to a consolidation and expansion of the arrangements established by the earlier 2001 PATRIOT Act which had significantly extended the government's powers of access to data held by US-based global providers, irrespective of the storage location of that data."The French politician Ms Laure de la Raudiere who co-chairs a parliamentary cyber-security and sovereignty committee described the CLOUD Act as "a wakeup call for Europe to accelerate its own sovereign capabilities in the data sector".

In response to the concerns articulated by various political and business leaders, the French government called upon French companies to rely on "CLOUD-Act-safe" data providers.

In the meantime, on 25 May 2018, a few months after the adoption of the CLOUD Act by the US Congress, the General Data Protection Regulation (GDPR) entered into effect. In the next part of this series we will look at the GDPR and its implications for transatlantic data traffic between the EU and the US.

Recent Techrights' Posts

Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megabreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?
Firefox Has Fallen to 2% in New Zealand
At around 2%, at least in the US (2% or below this threshold), there's no longer an obligation to test sites for any Gecko-based browser
 
GNU/Linux in Georgia: Looking Good
Windows down from 99% to less than 33%
Tomorrow is a Historic Day for Press Freedom in the UK
Take note of the Julian Assange case
Hiding in a Forest Without a Phone and Hiding Behind the First Amendment in the United States (US)
some serial defamer is trying to invert the narrative
Links 19/05/2024: Iran's President Lost in Helicopter Crash, WikiLeaks’ Julian Assange Awaits Decisions in Less Than a Day
Links for the day
Links 19/05/2024: Microsoft Investigated in Europe
Links for the day
4 Old Articles About Microsoft/IBM SystemD
old but still relevant
Winning Streak
Free software prevalence
Links 19/05/2024: Conflicts, The Press, and Spotify Lawsuit
Links for the day
GNU/Linux+ChromeOS at Over 7% in New Zealand
It's also the home of several prominent GNU/Linux advocates
libera.chat (Libera Chat) Turns 3 Today
Freenode in the meantime continues to disintegrate
[Teaser] Freenode NDA Expires in a Few Weeks (What Really Happened 3 Years Ago)
get ready
GNU/Linux is Already Mainstream, But Microsoft is Still Trying to Sabotage That With Illegal Activities and Malicious Campaigns of Lies
To help GNU/Linux grow we'll need to tackle tough issues and recognise Microsoft is a vicious obstacle
Slovenia's Adoption of GNU/Linux in 2024
Whatever the factor/s may be, if these figures are true, then it's something to keep an eye on in the future
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 18, 2024
IRC logs for Saturday, May 18, 2024
Links 19/05/2024: Profectus Beta 1.2
Links for the day
Site Archives (Not WordPress)
We've finally finished the work
[Meme] The EPO Delusion
on New Ways of Working
EPO Representatives Outline Latest Attacks on Staff
Not much has happened recently in terms of industrial action
Links 18/05/2024: Revisiting the Harms of Patent Trolls, Google Tries to Bypass (or Plagiarise) Sites Under the Guise of "AI"
Links for the day
Links 18/05/2024: BASIC Story, Site Feeds, and New in Geminispace
Links for the day
GNU/Linux in Kyrgyzstan: From 0.5% to 5% in Eight Years
the country is almost the size of the UK
Justice for Victims of Online Abuse
The claims asserted or pushed forth by the harasser are categorically denied
[Meme] Senior Software Engineer for Windows
This is becoming like another Novell
Links 18/05/2024: Deterioration of the Net, North Korean IT Workers in the US
Links for the day
Windows in Lebanon: Down to 12%?
latest from statCounter
[Video] 'Late Stage Capitalism': Microsoft as an Elaborate Ponzi Scheme (Faking 'Demand' While Portraying the Fraud as an Act of Generosity and Demanding Bailouts)
Being able to express or explain the facts isn't easy because of the buzzwords
Links 18/05/2024: Caledonia Emergency Powers, "UK Prosecutor's Office Went Too Far in the Assange Case"
Links for the day
Microsoft ("a Dying Megacorporation that Does Not Create") and IBM: An Era of Dying Giants With Leadership Deficits and Corporate Bailouts (Subsidies From Taxpayers)
Microsoft seems to be resorting to lots of bribes and chasing of bailouts (i.e. money from taxpayers worldwide)
US Patent and Trademark Office Sends Out a Warning to People Who Do Not Use Microsoft's Proprietary Formats
They're punishing people who wish to use open formats
Links 18/05/2024: Fury in Microsoft Over Studio Shutdowns, More Gaming Layoffs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 17, 2024
IRC logs for Friday, May 17, 2024
Links 18/05/2024: KOReader, Benben v0.5.0 Progress Update, and More
Links for the day
[Meme] UEFI 'Secure' Boot Boiling Frog
UEFI 'Secure' Boot: You can just ignore it. You can just turn it off. You can hack on it as a workaround. Just use Windows dammit!
The Market Wants to Delete Windows and Install GNU/Linux, UEFI 'Secure' Boot Must Go!
To be very clear, this has nothing to do with security and those who insist that it is have absolutely no credentials
In the United States Of America the Estimated Share of Google Search Grew After Microsoft's Chatbot Hype (Which Coincided With Mass Layoffs at Bing)
Microsoft's chatbot hype started in late 2022
Techrights Will Categorically Object to Any Attempts to Deny Its Right to Publish Informative, Factual Material
we'll continue to publish about 20 pages per day while challenging censorship attempts
Links 17/05/2024: Microsoft Masks Layoffs With Return-to-office (RTO) Mandates, More YouTube Censorship
Links for the day
YouTube Progresses to the Next Level
YouTube is a ticking time bomb
Journalists and Human Rights Groups Back Julian Assange Ahead of Monday's Likely Very Final Decision
From the past 24 hours...
[Meme] George Washington and the Bill of Rights
Centuries have passed since the days of George Washington, but the principles are still the same
Daniel Pocock: "I've Gone to Some Lengths to Demonstrate How Corporate Bad Actors Have Used Amateur-hour Codes of Conduct to Push Volunteers Into Modern Slavery"
"As David explains, the Codes of Conduct should work the other way around to regulate the poor behavior of corporations who have been far too close to the Debian Suicide Cluster."
Video of Richard Stallman's Talk From Four Weeks Ago
2-hour video of Richard Stallman speaking less than a month ago
statCounter Says Twitter/X Share in Russia Fell From 23% to 2.3% in 3 Years
it seems like YouTube gained a lot
Journalist Who Won Awards for His Coverage of the Julian Assange Ordeals Excluded and Denied Access to Final Hearing
One can speculate about the true reason/s
Richard Stallman's Talk, Scheduled for Two Days Ago, Was Not Canceled But Really Delayed
American in Paris
3 More Weeks for Daniel Pocock's Campaign to Win a Seat in European Parliament Elections
Friday 3 weeks from now is polling day
Microsoft Should Have Been Fined and Sanctioned Over UEFI 'Lockout' (Locking GNU/Linux Out of New PCs)
Why did that not happen?
Gemini Links 16/05/2024: Microsoft Masks Layoffs With Return-to-office (RTO) Mandates, Cash Issues
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 16, 2024
IRC logs for Thursday, May 16, 2024
Ex-Red Hat CEO Paul Cormier Did Not Retire, He Just Left IBM/Red Hat a Month Ago (Ahead of Layoff Speculations)
Rather than retire he took a similar position at another company
Linux.com Made Its First 'Article' in Over and Month, It Was 10 Words in Total, and It's Not About Linux
play some 'webapp' and maybe get some digital 'certificate' for a meme like 'clown computing'