The Clarifying Lawful Overseas Use Data (CLOUD) Act is a US Act enacted to address data transfer issues across jurisdictions. The Act was put together to ease legal assistance requests for e-evidence, which are increasingly laborious. The Act thus comes in handy in addressing the need for efficiency of e-evidence transfer, in fighting serious crimes such as terrorism, large-scale hacking, etc.
The Act stipulates the need for an Agreement with countries that desire to tap from the fruits of the US CLOUD Act for easy cross-country data release. At the same time, these agreements help to factor in the peculiarities of signatory-countries. The US-UK CLOUD Act Agreement, being the first US Cloud agreements, is especially important as it sets out a blueprint for subsequent agreements.
Essentially, the US-UK CLOUD Act Agreement embodies numerous pre-conditions mandated by the CLOUD Act, as well as additional and instrumental safeguards that are not contained in the Act.
The safeguards in the US-UK CLOUD Act Agreement include:
Quality Control/Designated Authority (Article 5): The agreement sets out in clear terms the need for review and certification of cross-border orders on the easy release of data. Such certifying authority in the US is any governmental entity chosen by the Attorney General. For the UK, the Secretary of State for the Home Department designates the duty to any government entity.
Opportunity to Object/Review Procedure (Article 5): Global providers that are so ordered to release data – if they have specific concerns – can contest such order with the cross-border designated authority. In the event that such concern isn’t resolved, the provider can take the concern to its home designated authority. In whatever case, the home designated authority has the final say.
Use Limitation (Article 8): This helps to protect essential interests that are cross-divergent over borders. It vests explicit veto power on the UK regarding orders in respect of which evidence sought is in respect of a case in which death penalty is being sought. In the same vein, the US has veto powers on the UK regarding the use of evidence in a matter that raises some dust on free speech.
More details on the US-UK CLOUD Act in subsequent blogs.