United States: Arnold & Porter Discusses How CLOUD Act Revamps Government Access To Data

The massive 2,232-page, $1.3 trillion spending bill signed into law on March 23 by President Trump does more than just fund the government. The bill also contains a provision that will have a significant impact on data privacy.  Tacked on the end of the spending bill is the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which revamps the decades-old regime governing how law enforcement can access data stored abroad by service providers. Under the CLOUD Act, US officials can compel service providers to provide data regardless of where that data is stored.

First, a bit of background. The Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 (ECPA), permits the government to compel a service provider to produce its customer and user data by means of a court order.1 The problem is that the SCA does not specify whether such a court order applies to data stored abroad. As a result, some companies, notably Microsoft, have argued that the "presumption against extraterritoriality," which holds that US laws are presumed to apply only within the territory of the United States, applies to the SCA and thus SCA court orders do not apply to data stored abroad. Indeed, just last month the Supreme Court heard argument on this issue in United States v. Microsoft, a case where Microsoft refused to comply with a SCA warrant to produce data located in Ireland.

The CLOUD Act seeks to clean up this morass.  It adds a new section to the SCA, which states:

A provider . . . shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider's possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.

Thus, the CLOUD Act makes clear that the test for the application of any SCA court order is whether the information sought is within the provider's control, and not where the provider stores that information.

While privacy advocates might balk at this new provision, the CLOUD Act includes some safeguards. For one, the provider can file a motion to quash when it "reasonably believes" the "customer or subscriber is not a United States person and does not reside in the United States" and there is a "material risk" that production of the compelled data would violate the laws of a "qualifying foreign government." As to this latter point, interference with the domestic affairs of a foreign country has been a prickly issue under the original SCA framework. Providers would sometimes find themselves in a catch-22, required by a warrant to produce data stored in foreign countries but simultaneously prohibited from disclosing the data under foreign law. The CLOUD Act addresses this issue by requiring the court to perform a comity analysis whenever the provider files a motion to quash.

The other significant import of the CLOUD Act is that it addresses the opposite situation where a foreign country requests data stored inside the United States. Before the CLOUD Act, foreign authorities seeking to obtain data in the United States had to resort to cumbersome data-sharing and legal assistance treaties, such as mutual legal assistance treaties (MLATs). As Justice Alito noted during oral argument in Microsoft, this process generally required months, if not years, before data sharing requests were completed, which allowed investigations to go stale and cases to go cold. The CLOUD Act should expedite the process and replace, at least to an extent, MLATs.

The CLOUD Act permits providers to disclose information to a foreign government if that government has an executive agreement with the United States. But not all foreign governments will be able to enter into such an agreement. Rather, such agreements will (at least by design) be limited to so-called "rule-of-law" countries because prior to any agreement the "Attorney General, with the concurrence of the Secretary of State" must determine and certify to Congress that the foreign country has various safeguards, such as "robust substantive and procedural protections for privacy and civil liberties" or "appropriate procedures to minimize the acquisition, retention, and dissemination of information concerning United States persons subject to the agreement."

Additionally, even if a foreign government qualifies and enters into an executive agreement with the United States, their orders to produce data must meet a number of requirements." For example, foreign orders must concern only "serious crimes, including terrorism," "be based on requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation," and not target US persons or persons located within the United States. In short, the CLOUD Act's privacy safeguards set conditions that must be met before a foreign country enters into an executive agreement with the United States, and restricts the scope of orders issued by that foreign jurisdiction that will be recognized under the executive agreement.

The CLOUD Act should offer law enforcement a potent tool to use in their investigations, and those concerned with their privacy additional safeguards and assurances that their data will be accessed properly.

Originally published by The CLS Blue Sky Blog.


1. The judicial order can be either a warrant, subpoena, or 18 U.S.C. § 2703(d) order depending on the type of service provider and how long the data has been in storage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Cleary Gottlieb Steen & Hamilton LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Cleary Gottlieb Steen & Hamilton LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions