Describe the Clarifying Lawful Overseas Use of Data (CLOUD) Act of 2018
While the DoD was establishing its path forward, another issue was occurring in cloud computing that brought focus to data residency.
In a 2013 drug trafficking investigation, the FBI issued an Stored Communications Act (SCA) warrant for emails that a U.S. citizen had stored on one of Microsoft's remote servers in Ireland. Microsoft subsequently refused to provide the emails.
The FBI stated that Microsoft had full control over the data because it resided within their data centers, and that Microsoft must be compelled to turn it over in response to the SCA warrant.
Microsoft argued that because the data resided outside of the United States, it was not subjected to the jurisdiction of the Stored Communications Act.
In Microsoft Corp. v. United States, this challenge identified that the FBI could request a mutual legal assistance treaty, or MLAT, to aid in data discovery of cross-border law enforcement. It was also recognized that the process to acquire a new mutual legal assistance treat if one is not in place, or to process a request through an existing MLAT, can be slow and impede law enforcement efforts.
Efforts to enact
For several years, efforts were made to amend the Stored Communications Act, while also working with Microsoft and other technology leaders, but those efforts stalled.
Act becomes law
Enacted in 2018 by the passing of the Consolidated Appropriations Act of 2018, the Clarifying Lawful Overseas Use of Data (CLOUD) Act amends the Stored Communications Act (SCA) of 1986 to allow federal law enforcement to compel U.S.-based technology companies (using either warrant or subpoena) to provide requested data stored on servers regardless of whether the data are stored in the U.S. or on foreign soil.
Importance
The CLOUD Act is significant because it demonstrates that not only can cloud computing empower law enforcement, but it can also be used by criminals, and as such, there needs to be laws around how cloud computing technologies are governed, while also aligning with international law.