CLOUD Act Establishes Framework To Access Overseas Stored Electronic Communications
April 4, 2018
April 4, 2018
The 2018 Consolidated Appropriations Act, which was signed by President Donald Trump on March 23, 2018, included a little-debated provision that revised portions of the 1986 Stored Communications Act (“SCA”) to permit the government to access through the use of a warrant or subpoena stored communications held abroad by providers of electronic communications services that are subject to United States jurisdiction.
The Clarifying Lawful Overseas Use of Data Act – or “CLOUD Act” – establishes that the SCA’s provisions concerning the production of electronic communications extend to those held abroad, establishes a framework for service providers to challenge an SCA warrant, directs courts to conduct a limited comity analysis to balance certain factors relevant to cross-border transfers of data, and introduces an incentive for foreign governments to enter into executive agreements with the United States governing cross-border data requests.
Prior to the enactment of the CLOUD Act, the Supreme Court was poised to rule in the case Microsoft Corporation v. United States of America, No. 17-2, on whether the SCA in its previous form permitted the use of a warrant to obtain electronic communications stored by a U.S. company on foreign servers. The relevance of that case, which was argued in February, is substantially undermined by this Congressional action.