Clear Scope for Conflict Between Privacy Laws

The Clarifying Lawful Overseas Use of Data Act, or CLOUD Act, was enacted into U.S. federal law on March 23, 2018. It had been attached, at page 2212 of 2232 pages, to the omnibus spending bill, and allows law enforcement to demand access to data of concern wherever in the world that data is stored.

The General Data Protection Regulation, or GDPR, becomes European Law on May 25, 2018. It restricts companies that operate in Europe or process EU citizen data from transferring that data to third parties.

On the surface, there is clear scope for conflict between these two laws; but as always, it is more complex than that. The two key elements are, for CLOUD, section 2713; and for GDPR, article 48. 

Section 2713 reads, “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 of electronic communication and any record or other information relating 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 the United States.”

Article 48 of GDPR states, “Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.”

It gets complicated because CLOUD specifically allows for ‘international agreements’, but not mutual legal assistance treaties (MLATs), which it does not mention at all. Indeed, the U.S. government has always complained that MLATs are too complex and slow to be of any value to a fast-moving investigation. The potential for conflict between CLOUD and GDPR consequently hinges on whether the U.S and the EU sign an international agreement that satisfies both parties.

Opinions vary. While a UK – U.S. agreement already exists, the UK is leaving the EU. David Flint, senior partner at the MacRoberts law firm, comments, “In the new GDPR world and indeed a post Brexit world, it remains to be seen the extent to which other governments are able and willing to give up the privacy and human rights of their citizens on the altar of data sharing.”

Other opinions are more optimistic that CLOUD will operate without disturbance from GDPR.

Dr Brian Bandey, a Doctor of Law specializing in international cyber laws, told SecurityWeek, “I believe it is generally accepted that the CLOUD Act… would meet the requirements of the GDPR’s Article 48. This addresses foreign (including U.S.) investigations and prohibits the transfer or disclosure of personal data unless pursuant to an MLAT or other international agreement. One possible resolution would be for the U.S. to enter into an agreement with the EU or for the EU to agree that the U.S. investigations and subsequent transfers or disclosures in compliance with the CLOUD Act procedures do not conflict with Article 48.”

Alexander Hanff, a respected privacy expert and advocate, believes that CLOUD “completely undermines MLATs. MLATs are the correct instruments for this purpose, and if MLATs are proving too burdensome, that should be addressed directly — circumventing MLATs is not the right answer.” However, he points out that the European Commission (EC) seems to be coming into line with the U.S. by proposing something very similar to CLOUD, but for the European Union.

Last week, the EC issued a statement proposing new rules to make it easier and faster for police and judicial authorities to obtain electronic evidence. It states, “This will allow a judicial authority in one Member State to request electronic evidence (such as emails, text or messages in apps) directly from a service provider offering services in the Union and established or represented in another Member State, regardless of the location of data, which will be obliged to respond within 10 days, and within 6 hours in cases of emergency (as compared to 120 days for the existing European Investigation Order or 10 months for a Mutual Legal Assistance procedure).”

This is similar to the effect of CLOUD: European law enforcement will be able to demand access to data from U.S. companies operating in the EU. On this wording, that would include, for example, Microsoft or Facebook user data belonging to a U.S. citizen and stored on servers in the U.S. It too, but more explicitly than CLOUD, denigrates the effectiveness of MLATs. Under these circumstances, it is unlikely that there will be any difficulty in the EC and the U.S. coming to an international agreement for mutual access to data of interest to law enforcement.

The implication is that U.S companies have nothing to worry about over CLOUD and GDPR. Provided they adhere to the basic demands of GDPR, they will be able to turn EU data over to the FBI without concern over GDPR. But again, it’s not that simple. The greatest danger from CLOUD to trans-Atlantic privacy relations is only indirectly related to GDPR — it is the effect of CLOUD on the Privacy Shield.

Privacy Shield is the agreement between the EU and the U.S. that allows U.S. companies to ‘export’ European PII — which is a fundamental aspect of doing business with the EU. Privacy Shield replaces an earlier agreement (Safe Harbor) that was struck down by the European Court as being unconstitutional. That court also specifically told the national regulators that they could not be bound by an EC ‘adequacy’ ruling. In effect, while they will be guided by the EC, they do not simply have to accept that the Privacy Shield is ‘adequate’ to comply with EU law and the constitution.

Privacy Shield is being challenged, including by the same activist (Max Schrems) who ultimately took down Safe Harbor.

Hanff comments, “Whether or not CLOUD Act will interfere with Privacy Shield remains to be seen. Obviously there are concerns, but Privacy Shield has its own issues and will soon be challenged by EU regulators in the courts as well as being included in the case from the Irish High Court on Standard Contractual Clauses currently before the Court of Justice of the European Union. It is likely Privacy Shield will fall in that judgment.”

The relevance of the CLOUD Act to Privacy Shield is similar to the relevance of PRISM to Safe Harbor — it’s very existence could be cited as further proof that Privacy Shield is inadequate.

“I would argue,” continues Hanff, “that it is already impossible for EU citizens to access and enforce their rights under Privacy Shield anyway, so CLOUD Act is just one more stack in that house of cards — a house which is built on the ‘swamp’ and will inevitably fall.”

“From the perspective of U.S. companies,” he added, “they are stuck in a catch 22 situation; they cannot ignore legal requests from their own countries but in doing so they will not be able to respect the rights of EU citizens or arguably comply with EU law.”

With good will between the U.S. administration and the European Commission, law enforcement access to overseas cloud data can be aligned. In both cases there are likely to be constitutional challenges and any arrangements will ultimately need to be ratified by the courts. But even before then, the very basis of trans-Atlantic trade may fail if the Privacy Shield is struck down by the European Courts. 

CLOUD makes the Privacy Shield waters even muddier. “Is this the final nail in the Privacy Shield coffin?” asks lawyer David Flint. “Time will tell.”

Related: EU Court Slaps Down UK’s Investigatory Powers Act 

Related: Privacy Shield Heavily Criticized by European Regulators 

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Kevin Townsend is a Senior Contributor at SecurityWeek. He has been writing about high tech issues since before the birth of Microsoft. For the last 15 years he has specialized in information security; and has had many thousands of articles published in dozens of different magazines – from The Times and the Financial Times to current and long-gone computer magazines.

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