Hatch introduces bipartisan bill to clarify cross-border data policies

Hatch introduces bipartisan bill to clarify cross-border data policies
© Greg Nash

Sen. Orrin HatchOrrin Grant HatchGrand Staircase-Escalante: A conservation triumph is headed for future as playground for industry McConnell tamps down any talk of Kavanaugh withdrawal GOP offers to ban cameras from testimony of Kavanaugh accuser MORE (R-Utah) on Monday introduced a bill aimed at creating a clearer framework for law enforcement to access data stored in cloud computing systems.

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Hatch’s bill is aimed at making it easier for U.S. officials to create bilateral data sharing agreements that allow them to access data stored overseas and also for foreign law enforcement to access data stored on U.S. firms’ servers.

The legislation, known as the Clarifying Lawful Overseas Use of Data (CLOUD) Act, is co-sponsored by Sens. Christopher CoonsChristopher (Chris) Andrew CoonsJudiciary Democrat calls for additional witnesses to testify on Kavanaugh Kavanaugh allegations could be monster storm brewing for midterm elections      Sunday shows preview: White House officials on offensive in wake of anonymous NY Times op-ed MORE (D-Del.), Lindsey GrahamLindsey Olin Graham GOP senator: Kavanaugh accuser 'moving the goalposts' Collins: Kavanaugh accuser should 'reconsider,' testify on Monday Grassley willing to send staff to California to speak with Kavanaugh accuser MORE (R-S.C.) and Sheldon WhitehouseSheldon WhitehouseSenate Dems sue Archives to try to force release of Kavanaugh documents Dems call on Senate to postpone Kavanaugh vote Dems play waiting game with Collins and Murkowski MORE (D-R.I.).

Federal law currently doesn’t specify whether the government can demand that U.S. companies give it data they have stored abroad. The CLOUD Act would amend this, likely impacting Microsoft’s pending Supreme Court case over data it has stored in Ireland. A lower court has previously ruled that Microsoft doesn’t have to turn over data stored overseas, following a request for it to do so by the Department of Justice.

Microsoft CEO Brad Smith praised the legislation in a tweet, calling it an “important step toward enhancing & protecting privacy while reducing international legal conflicts.”

Multiple technology trade associations that lobby for Microsoft and other companies signed a letter supporting the legislation.

“The bill would establish a clear statutory right for providers to challenge an order that would create a conflict of law with a qualifying foreign government — that is, a foreign government that has a reciprocal agreement with the U.S.,” the associations wrote. “These provisions would greatly improve cooperation and dialogue among countries.”

Experts outside of the industry have also welcomed the bipartisan legislation, saying that it brings needed clarification over law enforcement’s access to foreign data.

"This is a much-needed piece update to the law with long-term benefits to privacy and security. It ensures the United States can, pursuant to a warrant issued based on a finding of probable cause, lawfully access communications content needed to effectively fight crime,” said Jennifer Daskal, senior counsel at Human Rights Watch.

Daskal argued that the consistency the CLOUD Act would create would not just help U.S. law enforcement, but also provide a clear set of protections for U.S. citizen’s data as well.