"The bill starts by giving the executive branch dramatically more power than it has today. It would allow Attorney General Sessions to enter into agreements with foreign governments that bypass current law, without any approval from Congress. Under these agreements, foreign governments would be able to get emails and other electronic information without any additional scrutiny by a U.S. judge or official. And, while the attorney general would need to consider a country’s human rights record, he is not prohibited from entering into an agreement with a country that has committed human rights abuses."
"That level of discretion alone is concerning. Even more, however, the bill would for the first time allow these foreign governments to wiretap in the U.S. — even in cases where they do not meet Wiretap Act standards. Paradoxically, that would give foreign governments the power to engage in surveillance — which could sweep in the information of Americans communicating with foreigners — that the U.S. itself would not be able to engage in. The bill also provides broad discretion to funnel this information back to the U.S., circumventing the Fourth Amendment. This information could potentially be used by the U.S. to engage in a variety of law enforcement actions."
I do wonder if they are being slightly coy here in their analysis. This isn't at all paradoxical, unless you are giving the players some serious benefit of the doubt.
(1) Timely access to electronic data held by communications-service providers is an essential component of government efforts to protect public safety and combat serious crime, including terrorism.
(2) Such efforts by the United States Government are being impeded by the inability to access data stored outside the United States that is in the custody, control, or possession of communications-service providers that are subject to jurisdiction of the United States.
(3) Foreign governments also increasingly seek access to electronic data held by communications-service providers in the United States for the purpose of combating serious crime.
(4) 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.
(5) Foreign law may create similarly conflicting legal obligations when chapter 121 of title 18, United States Code (commonly known as the “Stored Communications Act”), requires disclosure of electronic data that foreign law prohibits communications-service providers from disclosing.
(6) International agreements provide a mechanism for resolving these potential conflicting legal obligations where the United States and the relevant foreign government share a common commitment to the rule of law and the protection of privacy and civil liberties.
This ACLU post is less than intellectually honest in dancing around a crucial detail: that this law does not apply to the data of US persons (citizens and residents). It's still reasonable to oppose the bill, but why the deception?
I'm still pretty convinced the CLOUD act is a disaster but the Lawfare article makes some persuasive points:
* There already is foreign access to US data about non-citizens under the MLA process, which is slow but has very few safeguards or privacy controls, unlike this new proposed process.
* In the absence of sustainable process, there's good evidence that foreign governments are simply going to require data localization, which completely eliminates any safeguards and also potentially puts some US citizen data at risk.
* If DOJ wins at SCOTUS in the Microsoft Ireland case, the US government will get access to foreign-server data without any of the safeguards in the CLOUD act. If CLOUD passes, it moots the SCOTUS case.
But the idea that this DOJ, in this administration, could ink a deal with any country in the world --- on its own recognizance --- to give them access to data on US servers? If you can't imagine providing that access for this administration, you shouldn't imagine doing so for any future administration either.
It ends the Wiretap Act for all foreign powers at the pleasure of the President. It will try to end privacy afforded by the 4th Amendment. It will try to prevent Judicial review of Executive branch acts.
Its situations like this that remind me to be thankful that the authors of our constitution, with all their foibles and errors, set up difficult-to-remove constraints on government overreach. It's hard to say just how many times we've been saved by the protections against unreasonable searches and seizures.
On another note, I'm confused by the very existence of "Fight for the Future". They seem to exist in the exact same space as the EFF, and given that the EFF has been doing an excellent job for a long time now, it's hard not to suspect their motives. That's just conjecture, of course.
I'm always skeptical of governments who want to restrict rights/freedoms of all in the name of safety from the few. Sounds more like a power grab by the power hungry.
Has anyone seen an articulate defense of this legislation?
I can clearly understand the opposition, but I am having trouble figuring what is driving the introduction of the bill in the first place. I do not want to fully judge it until I understand what the other side is thinking.
Note that they've forbidden judicial review. The disclosure merely has to be promised by Trump's subordinates that it doesn't violate your constitutional rights and the Judicial Branch is banned from reviewing it? Unconstitutional attempt to remove the Judicial branch from reviewing illegal acts of Congress and illegal acts by the Executive branch and thus an illegal law.
Are the "executive agreements" actually treaties and can Congress abandon its Constitutional duty to review and approve treaties? I say yes and no, thus Unconstitutional and thus an illegal law.
Which would be unsurprising. The overall aim seems to be to reduce the legal considerations US companies need to make when responding to foreign government data requests.
[+] [-] tptacek|8 years ago|reply
The ACLU's warning makes far more sense, and if something about the CLOUD act is going to be on the front page, it should be their article:
https://www.aclu.org/blog/privacy-technology/internet-privac...
[+] [-] OrganicMSG|8 years ago|reply
"The bill starts by giving the executive branch dramatically more power than it has today. It would allow Attorney General Sessions to enter into agreements with foreign governments that bypass current law, without any approval from Congress. Under these agreements, foreign governments would be able to get emails and other electronic information without any additional scrutiny by a U.S. judge or official. And, while the attorney general would need to consider a country’s human rights record, he is not prohibited from entering into an agreement with a country that has committed human rights abuses."
"That level of discretion alone is concerning. Even more, however, the bill would for the first time allow these foreign governments to wiretap in the U.S. — even in cases where they do not meet Wiretap Act standards. Paradoxically, that would give foreign governments the power to engage in surveillance — which could sweep in the information of Americans communicating with foreigners — that the U.S. itself would not be able to engage in. The bill also provides broad discretion to funnel this information back to the U.S., circumventing the Fourth Amendment. This information could potentially be used by the U.S. to engage in a variety of law enforcement actions."
I do wonder if they are being slightly coy here in their analysis. This isn't at all paradoxical, unless you are giving the players some serious benefit of the doubt.
[+] [-] bluetwo|8 years ago|reply
https://www.congress.gov/bill/115th-congress/senate-bill/238...
Congress finds the following:
(1) Timely access to electronic data held by communications-service providers is an essential component of government efforts to protect public safety and combat serious crime, including terrorism.
(2) Such efforts by the United States Government are being impeded by the inability to access data stored outside the United States that is in the custody, control, or possession of communications-service providers that are subject to jurisdiction of the United States.
(3) Foreign governments also increasingly seek access to electronic data held by communications-service providers in the United States for the purpose of combating serious crime.
(4) 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.
(5) Foreign law may create similarly conflicting legal obligations when chapter 121 of title 18, United States Code (commonly known as the “Stored Communications Act”), requires disclosure of electronic data that foreign law prohibits communications-service providers from disclosing.
(6) International agreements provide a mechanism for resolving these potential conflicting legal obligations where the United States and the relevant foreign government share a common commitment to the rule of law and the protection of privacy and civil liberties.
[+] [-] wildmusings|8 years ago|reply
[+] [-] SubiculumCode|8 years ago|reply
[+] [-] fitzroy|8 years ago|reply
https://www.eff.org/deeplinks/2018/03/eff-and-x-groups-tell-...
Counterpoint from Lawfare (published in cooperation with the Brookings Institution) supporting the legislation: https://www.lawfareblog.com/why-cloud-act-good-privacy-and-h...
[+] [-] tptacek|8 years ago|reply
* There already is foreign access to US data about non-citizens under the MLA process, which is slow but has very few safeguards or privacy controls, unlike this new proposed process.
* In the absence of sustainable process, there's good evidence that foreign governments are simply going to require data localization, which completely eliminates any safeguards and also potentially puts some US citizen data at risk.
* If DOJ wins at SCOTUS in the Microsoft Ireland case, the US government will get access to foreign-server data without any of the safeguards in the CLOUD act. If CLOUD passes, it moots the SCOTUS case.
But the idea that this DOJ, in this administration, could ink a deal with any country in the world --- on its own recognizance --- to give them access to data on US servers? If you can't imagine providing that access for this administration, you shouldn't imagine doing so for any future administration either.
[+] [-] Gibbon1|8 years ago|reply
Lol.
[+] [-] shaki-dora|8 years ago|reply
And for the opposite perspective be sure to read https://www.lawfareblog.com/why-cloud-act-good-privacy-and-h...
This really isn’t as obvious as one might think.
[+] [-] kevin_b_er|8 years ago|reply
It is as obvious as need be.
[+] [-] sctb|8 years ago|reply
[+] [-] stevecalifornia|8 years ago|reply
[+] [-] bscphil|8 years ago|reply
On another note, I'm confused by the very existence of "Fight for the Future". They seem to exist in the exact same space as the EFF, and given that the EFF has been doing an excellent job for a long time now, it's hard not to suspect their motives. That's just conjecture, of course.
[+] [-] votepaunchy|8 years ago|reply
[+] [-] maerF0x0|8 years ago|reply
[+] [-] geofftrojans|8 years ago|reply
I can clearly understand the opposition, but I am having trouble figuring what is driving the introduction of the bill in the first place. I do not want to fully judge it until I understand what the other side is thinking.
[+] [-] shaki-dora|8 years ago|reply
[+] [-] kevin_b_er|8 years ago|reply
Are the "executive agreements" actually treaties and can Congress abandon its Constitutional duty to review and approve treaties? I say yes and no, thus Unconstitutional and thus an illegal law.
[+] [-] Spooky23|8 years ago|reply
[+] [-] orangejewce|8 years ago|reply
[+] [-] sbov|8 years ago|reply
[+] [-] DimitarIbra9|8 years ago|reply
[+] [-] mirimir|8 years ago|reply
[+] [-] 220V_USKettle|8 years ago|reply
[+] [-] mindslight|8 years ago|reply
[+] [-] stransky|8 years ago|reply
[+] [-] davonte|8 years ago|reply
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