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Washington, DC— Today US Senators Orrin Hatch (R-UT), Chris Coons (D-DE), Lindsey Graham (R-SC), and Sheldon Whitehouse (D-RI) introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act, legislation that will help put the United States and other countries on a path towards resolving the problem of cross-border data requests by law enforcement in the age of email and cloud computing.

 Existing law, both in the United States and around the world, has failed to keep pace with the evolution of internet-based communications technology, often referred to as cloud computing. US and foreign law enforcement investigating crimes increasingly rely on the assertion of extraterritorial authority to seek data stored outside their borders—data that is often essential to preventing and solving crime. Technology companies, in turn, are caught between a rock and a hard place: confronting obligations to disclose data in one country while simultaneously facing laws in other countries that prohibit disclosure.

 The CLOUD Act will encourage governments to develop a clear framework for technology companies to comply with investigative demands. The legislation incentivizes countries to remove conflicts of law and raise privacy standards.

  “The CLOUD Act is landmark legislation that addresses an increasingly pressing problem,” said Hatch. “In today’s world of email and cloud computing, where data is stored across the globe, law enforcement and tech companies find themselves encumbered by conflicting data disclosure and privacy laws. We need a commonsense framework to help law enforcement obtain critical information to solve crimes while at the same time enabling email and cloud computing providers to comply with countries’ differing privacy regimes. The CLOUD Act creates such a framework and will also help set a precedent for our allies as they deal with this problem too.”

 "In a globalized world, we need clear rules governing access to data stored abroad," said Coons. "I am encouraged that the legal framework included in today’s bill is supported by law enforcement and the tech community.  I am proud to join Sens. Hatch, Whitehouse, and Graham in advancing legislation that protects data across borders and encourages fair treatment by our international partners."

 “Solving the issue of cross-border data sharing needed to happen yesterday.  As I said at the hearing I chaired last year on this matter, the United States Congress must deliver in short order to resolve this issue,” said Graham.  “It’s unacceptable that law enforcement in the U.S. has been unable to obtain data from technology companies because of outdated laws.  After convening lengthy negotiations between the Department of Justice and various representatives from the technology sector, we came up with a problem-solving framework outlined in the CLOUD Act. The legislation allows the U.S. – along with our partners – to create a process to obtain needed evidence, no matter where the data may be stored.  The CLOUD Act reflects the standards and interests of both federal, state, and local law enforcement, as well as the technology sector.”  

 “Law enforcement and tech companies both benefit from clear rules of the road that help solve crimes and bring criminals to justice and also honor consumers’ right to privacy for their data,” said Whitehouse.  “This bill will help rule of law countries work together in a sensible legal framework to handle access to data stored around the globe.”

 In the House of Representatives, Congressmen Doug Collins and Hakeem Jeffries introduced companion legislation.

 “The digital age demands our vigilance in protecting the privacy and the safety of American citizens,” Mr. Collins said. “The CLOUD Act paves the way for the US to forge bilateral agreements establishing frameworks for fighting crime and terrorism and for guarding information stored electronically. It’s encouraging to see both bodies of Congress and both sides of the aisle join the Justice Department and tech community in supporting a wise, balanced approach to information storage in the 21st century.”

  “The CLOUD Act paves the way for the United States to enter modern bilateral agreements for effective investigations of cross-border crime and terrorism - without international legal conflicts - and ensures that customers and data holders are protected by their own nation’s privacy laws, “ Mr. Jeffries said. “Senators Sheldon Whitehouse, Orrin Hatch and Chris Coons, the Department of Justice and our industry partners should all be thanked for their hard work and leadership in this regard.”

 Clarifying Lawful Overseas Use of Data (CLOUD) Act of 2018 Pillars: 

  •  Bilateral Agreements: The CLOUD Act enables the United States to enter into formal agreements with other nations to set clear standards for cross-border investigative requests for digital evidence. The CLOUD Act further identifies a series of statutory requirements that these agreements must satisfy, including privacy and security protections. 

  • Extraterritoriality of US Warrants and International Comity: The CLOUD Act amends US law to make clear that US warrants and other legal process issued for data held by communications providers reach data stored anywhere in the world. The reach of US warrants and legal process, however, would be limited by international comity. The CLOUD Act would give providers, for the first time, a statutory right to challenge legal process based on international comity concerns.

  •  Transparency: When a communications provider receives a request from US law enforcement related to a national or resident of a country that has entered into a bilateral agreement with the United States, the provider will be permitted to notify that government of the existence of the request. This will allow the foreign government to assess compliance with the terms of the bilateral agreement and enable it to intervene diplomatically if it believes the request is inappropriate.

  • Reciprocity: The CLOUD Act would also require participating countries to remove legal restrictions that prevent compliance with data requests from US law enforcement. To qualify for the statutory benefits of the legislation (removal of the US blocking statute, a right for providers to object based on international comity and a right for providers to notify the government of the existence of requests), a foreign government must provide reciprocal rights and benefits to US law enforcement and communications providers.