Re Why the CLOUD Act is Good for Privacy and Human Rights

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Michael Winser <michaelw.net () gmail com>
> Date: March 15, 2018 at 10:35:40 AM EDT
> To: David Farber <dave () farber net>
> Subject: Re: [IP] Why the CLOUD Act is Good for Privacy and Human Rights
>
> Hi Dave, for IP if you wish.
>
> Mr. Swire's email is free of facts or even opinion. It simply asserts that this is good and that we should approve 
> it. This is hardly the foundation of useful discourse on this list.
>
> Given's Mr. Swire's stance on ISPs and privacy, I'm already skeptical of this breathless support of the CLOUD bill.
>
> Here's the link to the article which does assert the following:
> <snip>
> Among other things, the legislation:
> Prohibits targeting of U.S. citizen and resident data. For such data, foreign governments would still need to go 
> through the MLA system and obtain a warrant based on probable cause. This important provision reflects the 
> common-sense notion that U.S. standards should continue to protect U.S. citizens and residents. Likewise, when a 
> foreign government is seeking the data of its own nationals, the U.S. has much less justification to insist on U.S. 
> standards, simply because the data is stored in the U.S. or is held by a U.S.-based provider;
> Prohibits indirect targeting of U.S. citizen data and prohibits the foreign government from sharing that data back 
> with the United States unless it relates to significant harm or the threat of such harm to the United States or 
> United States persons;
> Requires that requests be particularized—targeting a specific person, account, address, personal device or other 
> identifier;
> Requires that requests be based on “articulable and credible facts”—a standard that is similar to the probable cause 
> standard, albeit stated in terms more readily understandable to non-U.S. law enforcement;
> Requires that requests be subject to “review or oversight” by a court, judge, or magistrate or other independent 
> authority;
> Requires that any live intercept orders be for a “fixed, limited duration,” “not last any longer than is reasonably 
> necessary to accomplish the approved purposes” and be issued “only if the same information could not reasonably be 
> obtained by another less intrusive measures.” These limitations track, although are not identical to, key protections 
> in the Wiretap Act;
> Prohibits use of data to infringe on freedom of speech;
> Requires the foreign government to agree to compliance reviews—a remarkable and novel development that, for the first 
> time, would enable the United States to track how data obtained by foreign governments is used and thereby protect 
> against abuse.
> </snip>
>
> I'm not sure why the author didn't include them in the email. At least now we can debate the correctness and 
> implications of these assertions.
>
> I can't validate these assertions but the the EFF and ACLU have raised concerns about the lack of legislative process 
> by which the AG can enter into agreements for data access. From the ACLU article:
>
> It would allow Attorney General Sessions to enter into agreements with foreign governments that bypass current law, 
> without any approval from Congress. 
>
>
> My own concern is that absent specific protections against collateral data collection, governments will be able to 
> use this to collectively gather and share information about anyone they want. The EFF point this out:
>
> The CLOUD Act allows the president to enter an executive agreement with a foreign nation known for human rights 
> abuses. Using its CLOUD Act powers, police from that nation inevitably will collect Americans’ communications. They 
> can share the content of those communications with the U.S. government under the flawed “significant harm” test. The 
> U.S. government can use that content against these Americans. A judge need not approve the data collection before it 
> is carried out. At no point need probable cause be shown. At no point need a search warrant be obtained.
>
> The author's statements of "trust us, this is important" and "mooting the Microsoft Ireland case" aren't very 
> compelling.
>
>
> > On Wed, Mar 14, 2018 at 1:35 PM, Dave Farber <farber () gmail com> wrote:
> >
> >
> >
> > Begin forwarded message:
> >
> > > From: Peter Swire <peter () peterswire net>
> > > Date: March 14, 2018 at 12:59:17 PM EDT
> > > To: Dave Farber <dave () farber net>
> > > Subject: Why the CLOUD Act is Good for Privacy and Human Rights
> > >
> > > Hello Dave:
> > >
> > >  
> > >
> > > There is a fast-moving debate in Congress about the CLOUD Act, governing rules when foreign governments seek 
> > > content from US service providers in criminal investigations.
> > >
> > >  
> > >
> > > Today, Jen Daskal and I posted on Lawfare, “Why the CLOUD Act is Good for Privacy and Human Rights”:
> > >
> > > “A dozen privacy and human rights groups have opposed the bipartisan CLOUD Act regulating cross-border data access, 
> > > claiming that it will erode basic liberties. They describe the bill as helping “empower” foreign governments to 
> > > commit human rights abuses; endangering constitutional rights; and even, in an email sent to the Hill this week, 
> > > undercutting LGBT rights around the world.
> > >
> > > We respectfully disagree. Contrary to these claims, the bill would improve privacy and civil liberties protections 
> > > compared to a world without such legislation.
> > >
> > > <snip>
> > >
> > > In short, to protect privacy and human rights, the wisest course is to promptly approve the CLOUD Act. It is 
> > > sometimes painful but true: Let not the perfect be the enemy of the good.”
> > >
> > > Best,
> > >
> > > Peter
> > >
> > >  
> > >
> > >  
> > >
> > > Professor Peter Swire
> > >
> > > Holder Professor of Law and Ethics
> > >
> > > Scheller College of Business
> > >
> > > Georgia Institute of Technology
> > >
> > >  
> > >
> > > Senior Counsel
> > >
> > > Alston & Bird, LLC
> > >
> > >  
> > >
> > > Ph: (240) 994-4142
> > >
> > > Web: www.peterswire.net
> > >
> > >  
> >
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