What the CLOUD Act Is.
The United States and the UK just signed the first-ever bilateral data-sharing agreement called the CLOUD Act, which means Clarifying Lawful Overseas Use of Data. So you may be asking yourself WTF is that and why does it matter. Well, this first of its kind legislation allows law enforcement to request access to electronic data directly from the tech companies in either country. So the FBI can request data from UK based companies and UK law enforcement can request data directly from companies like Facebook and Google. Here is what’s concerning to this former prosecutor, the Act allows the request WITHOUT a warrant or strong probable cause. In the US this act was slipped quietly into a spending bill (don’t you hate it when they do that!). Now there are other treaties and acts in place to allow countries to cooperate with each other in regards to threats, potentially criminal behavior, but this takes it further.
What is the big deal?
If there is no requirement of a warrant who is vetting the propriety of the requests? Is it up to the tech companies to stand up to law enforcement requests? However, it does put some context to Facebook’s recent announcements that one of their primary focuses will be encrypting data. Facebook released a post titled ‘a Privacy-Focused Vision For Social Networking’ on March 6, 2019. I believe that Facebook saw the writing on the wall, knew that CLOUD was in the pipeline and was aware of CLOUD’s one massive exception. Encryption.
Yup, the CLOUD Act cannot reach data that is encrypted end to end. So while Apple and Facebook are pushing harder into encryption the US Government is demanding that Facebook allow backdoor (unencrypted) access to data. I don’t always agree with Facebook but in this instance I completely get it. Facebook doesn’t want to have to be a gatekeeper in this way and is likely freaked the fuck out that law enforcement can request data without a warrant. If the data is encrypted Facebook can simply shrug and say ‘sorry bro…nothing we can do’.
Why it matters?
What is so interesting to me is that the story to the public continues to be increased privacy…. Governments are pushing data privacy with GDPR (the EU’s General Data Protection Regulation) and California’s soon to be enacted CCPA (California Consumer Privacy Act). So on one hand data is becoming harder to access as an online business or marketer, but it’s getting a bit easier to access for government agencies, and I can’t yet reconcile the two.
Look, I understand that acts of terror and mass harm are coordinated online. International sex trafficking is a real issue not to mention other areas of cybercrime that would take me down a totally different rabbit hole of weapons and organ trading….. But the public conversation is that your data is going to be more private, more secure and harder to access, what is actually happening is that your data will be easier to obtain in some situations.
I think the conversation should include all of it. If you have even heard of the CLOUD ACT before will you drop me a comment, because unless you travel in deeply nerdy cybersecurity or government regulatory circles I am guessing that this is news to you. So let’s start the dialogue. Let me know what you think in the comments, does this freak you out? Do you get the ‘greater good’ argument for making data easier for law enforcement to obtain? Do you agree with Facebook pushing to encrypt data end to end to avoid all this?
Let’s keep this conversation going!
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Emily D. Baker, Esq.
Badass Lawyer for Online Business
Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.