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CLOUD Act Grants Broad New Data-Gathering Powers to Governments

A new provision tucked inside the federal budget approved by Congress this week will make it much simpler for law enforcement agencies in the United States and abroad to collect data such as emails, Facebook messages, and other information--without a warrant.

The clause is known as the CLOUD Act and it was added near the end of the spending bill. The act’s stated purpose is to resolve conflicts between U.S. and foreign laws over storage and retrieval of information in various countries.

“Communications-service providers face potential conflicting legal obligations when a foreign government orders production of electronic data that United States law may prohibit providers from disclosing,” the bill says.

The act essentially provides much broader powers for law enforcement officials who are looking to gather data on a specific target. Foreign governments will have the ability to request information about a target that is stored in the U.S., without needing to go before a judge and show why the data is necessary. The bill also allows the president to make agreements with foreign governments regarding the seizure of data stored in the U.S.

‘‘A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States,” the act says.

"It is legislative malpractice that Congress, without a minute of Senate debate, is rushing through the CLOUD Act."

Privacy advocates say the CLOUD Act, which was not brought up before committees, is a serious threat to user privacy.

“Because of this failure, U.S. and foreign police will have new mechanisms to seize data across the globe. Because of this failure, your private emails, your online chats, your Facebook, Google, Flickr photos, your Snapchat videos, your private lives online, your moments shared digitally between only those you trust, will be open to foreign law enforcement without a warrant and with few restrictions on using and sharing your information. Because of this failure, U.S. laws will be bypassed on U.S. soil,” David Ruiz of the Electronic Frontier Foundation wrote in an analysis of the act.

And some legislators worry that the CLOUD Act gives the president too much power over how foreign governments can access Americans’ data.

“Tucked away in the omnibus spending bill is a provision that allows Trump, and any future president, to share Americans' private emails and other information with countries he personally likes. That means he can strike deals with Russia or Turkey with nearly zero congressional involvement and no oversight by U.S. courts,” Sen. Ron Wyden (D-Ore) said. “This bill contains only toothless provisions on human rights that Trump’s cronies can meet by merely checking a box. It is legislative malpractice that Congress, without a minute of Senate debate, is rushing through the CLOUD Act on this must-pass spending bill.”