The U.S. and United Kingdom have signed an agreement for cross-border law enforcement access to data related to serious crime held by tech companies, with appropriate court authorization—the first such agreement struck under the provisions of the U.S. CLOUD Act, the Justice Department said in announcing the agreement late yesterday.
The Clarifying Lawful Overseas Use of Data (CLOUD) Act, which was enacted last year as part of an omnibus appropriations package (TR Daily, March 23, 2018), requires communications service and remote hosting providers to comply with legal process seeking customer or subscriber information housed outside the U.S. Providers can disclose the warrants to the relevant foreign government and could seek to quash the warrant if they believe that the customer or subscriber is not a U.S. person and does not reside in the U.S. or that compliance would cause them to violate foreign laws. The CLOUD Act also authorized the U.S. to enter into bilateral agreements with foreign governments regarding data access for law enforcement in each other’s countries.
Before the CLOUD Act, such access was obtained through mutual legal assistance (MLA) agreements that required law enforcement officials seeking data from a tech company in another country covered by an MLA agreement to present its request to the government of the other country, rather than directly to the tech company, and it could take months to obtain the data, according to a Justice Department press release.
The U.S.-U.K. Bilateral Data Access Agreement will “broadly lift restrictions for a broad class of investigations, not targeting residents of the other country, and assure providers that disclosures through the Agreement are compatible with data protection laws. Each also committed to obtain permission from the other before using data gained through the agreement in prosecutions relating to a Party’s essential interest—specifically, death penalty prosecutions by the United States and UK cases implicating freedom of speech,” according the press release.
At a signing ceremony at the British ambassador’s residence in Washington, U.S. Attorney General William Barr said, “This agreement will enhance the ability of the United States and the United Kingdom to fight serious crime—including terrorism, transnational organized crime, and child exploitation —- by allowing more efficient and effective access to data needed for quick-moving investigations. Only by addressing the problem of timely access to electronic evidence of crime committed in one country that is stored in another, can we hope to keep pace with twenty-first century threats. This agreement will make the citizens of both countries safer, while at the same time assuring robust protections for privacy and civil liberties.”
U.K. Home Secretary Priti Patel said: “Terrorists and paedophiles continue to exploit the internet to spread their messages of hate, plan attacks on our citizens and target the most vulnerable. As Home Secretary I am determined to do everything in my power to stop them. This historic agreement will dramatically speed up investigations, allowing our law enforcement agencies to protect the public. This is just one example of the enduring security partnership we have with the United States and I look forward to continuing to work with them and global partners to tackle these heinous crimes.”
In a statement on the Justice Department announcement Rep. Doug Collins (R., Ga.), the ranking member of the House Judiciary Committee, said, “This CLOUD Act agreement between the United States and United Kingdom is an important step forward in helping law enforcement better combat crime and terrorism. When we introduced the CLOUD Act in 2018, we sought to protect Americans’ privacy while ensuring law enforcement has the tools to keep us safe. I am proud the CLOUD Act strikes that balance. I introduced the CLOUD Act with Representative Jeffries and Senator Hatch in 2018, with the help of Senator [Lindsey] Graham [R., S.C.], Chairman [Bob] Goodlatte [R., Va.] and other key lawmakers and stakeholders. I am confident, as more countries update their legal processes, more governments will seek CLOUD agreements like the one signed today.” —Lynn Stanton, [email protected]
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