
Cloud Act – Improve law enforcement access to data stored across borders - joeyespo
https://www.congress.gov/bill/115th-congress/senate-bill/2383/text
======
tptacek
The description in this article bears virtually no relationship to the
language in the actual bill, which is unsurprising given the source (FFTF).

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...](https://www.aclu.org/blog/privacy-technology/internet-
privacy/cloud-act-dangerous-piece-legislation)

~~~
OrganicMSG
From that article;

"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.

~~~
commandlinefan
Bruce Schneier put it best: "It is insufficient to protect ourselves with
laws; we need to protect ourselves with mathematics." It's become very clear
that we can't trust these people with our privacy - we need technological
solutions that don't give them the option.

~~~
ZenPsycho
is there a mathematical solution to a pipe wrench?

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fitzroy
Additional opposition from the ACLU and the EFF:
[https://www.aclu.org/blog/privacy-technology/internet-
privac...](https://www.aclu.org/blog/privacy-technology/internet-
privacy/cloud-act-dangerous-piece-legislation)

[https://www.eff.org/deeplinks/2018/03/eff-and-x-groups-
tell-...](https://www.eff.org/deeplinks/2018/03/eff-and-x-groups-tell-
congress-oppose-cloud-act)

Counterpoint from Lawfare (published in cooperation with the Brookings
Institution) supporting the legislation: [https://www.lawfareblog.com/why-
cloud-act-good-privacy-and-h...](https://www.lawfareblog.com/why-cloud-act-
good-privacy-and-human-rights)

~~~
tptacek
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.

~~~
dkhenry
On the executive branch overreach portion it appears congress has some review
authority. I am fine with the president being able to preform some actions,
but I am always a fan of having their be public or at least congressional
visibility and accountability.

~~~
kevin_b_er
And what of the Judicial branch? The bill is trying to ban it from reviewing
executive branch actions. The actions of both the legislative and executive
branches are subject to the highest law in the land. This bill represents a
fundamental attempt to bypass the highest law in the land: The Constitution of
the United States of America. The judicial branch enforces a check and balance
against illegal acts by the other branches.

So why is this line in here: “(c) Limitation on judicial review.—A
determination or certification made by the Attorney General under subsection
(b) shall not be subject to judicial or administrative review.

So why are they attempting to claim their assertions of compliance with the
highest law in the land is not subject to judicial review?

~~~
tptacek
That's not how the Constitution works. There's a history of statutes that
restrict judicial review over rulemaking. Statutes can say that to clarify the
intent of Congress in delegating authority to the executive. To the extent
that it's _reasonable_ for them to delegate without review --- where
"reasonable" means "the courts agree --- SCOTUS has upheld them.

A law that actually foreclosed on a Constitutional power of an Article III
court would simply be held unconstitutional.

This "controversy" strikes me as similar to the routine controversies of
Presidential executive orders "making new laws", which, of course, they cannot
in general do, but people think they can because it sounds like they can.

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shaki-dora
This is a terribly written hit piece devoid of any meaningful information. The
linked analysis is far better: [https://www.justsecurity.org/53705/bill-give-
foreign-governm...](https://www.justsecurity.org/53705/bill-give-foreign-
governments-fast-track-access-data/)

And for the opposite perspective be sure to read
[https://www.lawfareblog.com/why-cloud-act-good-privacy-
and-h...](https://www.lawfareblog.com/why-cloud-act-good-privacy-and-human-
rights)

This really isn’t as obvious as one might think.

~~~
kevin_b_er
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.

It is as obvious as need be.

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sctb
We've updated the link from [https://actionnetwork.org/letters/congress-is-
trying-to-snea...](https://actionnetwork.org/letters/congress-is-trying-to-
sneak-through-a-new-bill-that-would-hand-police-in-the-us-and-around-the-
world-extreme-spying-powers) to the bill.

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stevecalifornia
Here is the actual text of the bill:
[https://www.hatch.senate.gov/public/_cache/files/6ba62ebd-52...](https://www.hatch.senate.gov/public/_cache/files/6ba62ebd-52ca-4cf8-9bd0-818a953448f7/ALB18102%20\(1\).pdf)

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bscphil
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.

~~~
votepaunchy
The 4th Amendment is an, uh, amendment to the Constitution. Scary to think how
things would have worked out had there not been a Bill of Rights.

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maerF0x0
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.

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geofftrojans
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.

~~~
shaki-dora
See the lawfare piece linked in other comments.

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kevin_b_er
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.

~~~
Spooky23
You can't forbid judicial review. The supreme court has the ultimate power.

~~~
bartart
The constitutional powers of the Supreme Court are widely known to be somewhat
limited. Congress can and has repeatedly limited the supreme court's and lower
courts' ability to review laws. Under the US constitution, "In all cases
affecting ambassadors, other public ministers and consuls, and those in which
a state shall be party, the Supreme Court shall have original jurisdiction"
and "In all other Cases before mentioned, the Supreme Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make."

It is generally accepted that Congress could theoretically prevent the Supreme
Court from hearing all other cases, so long as a different court could hear
the case so that there is judicial review.
[https://en.wikipedia.org/wiki/Jurisdiction_stripping](https://en.wikipedia.org/wiki/Jurisdiction_stripping)

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orangejewce
Doesn't Microsoft, Google, etc. support the CLOUD act?

~~~
sbov
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.

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DimitarIbra9
never store your data on cloud. lesson learnt from this.

~~~
220V_USKettle
Are you supposed to have an email server at your house?

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confounded
Unfortunately, this is an increasingly attractive option.

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stransky
Orin Hatch: Nothing more needs be said

