Bonum Certa Men Certa

EPO and Microsoft Collude to Break the Law -- Part IV: The US CLOUD Act Passes Without Public Debate

Previous parts:



Cloudwashing law
Congress quietly slips cloud-spying powers into page 2,201 of emergency spending bill



Summary: "In 2013, the DoJ demanded that Microsoft grant it access to emails related to a narcotics case from a Hotmail account hosted in Ireland."

When Edward Snowden blew the whistle on the National Security Agency's PRISM program in 2013 and revealed what many had suspected – namely that US intelligence agencies were collecting vast amounts of data not only from US citizens, but from all around the world – public opinion received a badly needed wake-up call about the dangers of mass surveillance.



In the wake of these revelations, many countries became increasingly concerned about who could access their national information and the potential implications of cross-border data transfers. These concerns provided a catalyst for discussions focussing on the topic of what has come to be called "digital sovereignty" and/or "data sovereignty".

Another incident that put these topics into the spotlight was a dispute between Microsoft and the US Department of Justice (DoJ) which started in 2013.

"Despite having a major impact on how tech companies can be obliged to share user data with US and foreign governments, the CLOUD Act was passed by Congress without any public debate on 21 March 2018 and entered into force two days later."In 2013, the DoJ demanded that Microsoft grant it access to emails related to a narcotics case from a Hotmail account hosted in Ireland. Microsoft refused, arguing that a warrant issued under Section 2703 of the Stored Communications Act could not compel US companies to produce data stored in servers outside the US and that compliance with the requested transfer would result in the company breaking EU data protection law.

The initial ruling was in favour of the DoJ, with the presiding judge concluding that American companies “must turn over private information when served with a valid search warrant from US law enforcement agencies". Microsoft appealed to the US Second Circuit Court of Appeals which ruled in its favour in 2016 and invalidated the warrant. In response, the DoJ appealed to the US Supreme Court.

In March 2018, while the case was pending before the US Supreme Court, the US Congress passed the Clarifying Lawful Overseas Use of Data (CLOUD) Act which amended and extended the ECPA (Electronic Communications Privacy Act) and the SCA (Stored Communications Act).

"This highly controversial measure was buried on page 2,201 of a voluminous 2,232-page spending bill - the Consolidated Appropriations Act of 2018 - which was tabled and adopted as an emergency measure to prevent an impending government shutdown."Following agreement from both the DoJ and Microsoft, the US Supreme Court determined that the case had been rendered moot by the passage of the CLOUD Act and the issuing of a new warrant under the terms of the new legislation.

Despite having a major impact on how tech companies can be obliged to share user data with US and foreign governments, the CLOUD Act was passed by Congress without any public debate on 21 March 2018 and entered into force two days later.

This highly controversial measure was buried on page 2,201 of a voluminous 2,232-page spending bill - the Consolidated Appropriations Act of 2018 - which was tabled and adopted as an emergency measure to prevent an impending government shutdown.

Senators Rand Paul from Kentucky and Ron Wyden from Oregon raised procedural objections to the manner in which the CLOUD Act had been sneaked in as an appendage to the spending bill but ultimately they failed to block or stall the bill's adoption.

Ron Wyden on CLOUD Act
Ron Wyden complained about the CLOUD Act but failed to block its adoption



Privacy advocates at groups like the American Civil Liberties Union, the Center for Democracy and Technology and the Electronic Frontier Foundation criticized the legislation as “a new backdoor around the Fourth Amendment" which permitted the circumvention of constitutional protections against unreasonable searches by law enforcement agencies. They also argued that it could lead the US to send user data to police in countries known for abusing the human rights of their citizens.

"Privacy advocates at groups like the American Civil Liberties Union, the Center for Democracy and Technology and the Electronic Frontier Foundation criticized the legislation as “a new backdoor around the Fourth Amendment" which permitted the circumvention of constitutional protections against unreasonable searches by law enforcement agencies."On the other hand, US tech giants such as Microsoft, Google, Facebook, Apple, and Oath, applauded the legislation and sent a joint letter to the US Senate proclaiming that the CLOUD Act represented “notable progress to protect consumers’ rights".

The main effect of the CLOUD Act was to strengthen the powers of US law enforcement and intelligence agencies to access data held by US companies on foreign soil.

In a nutshell, the CLOUD Act amounted to a consolidation and expansion of the arrangements established by the earlier 2001 PATRIOT Act which had significantly extended the government's powers of access to data held by US-based global providers, irrespective of the storage location of that data.

This might help to explain why those pushing for the adoption of the measure preferred to avoid public debate by sneaking it in as a hidden appendage to an emergency spending bill.

On the other side of the Atlantic, the passage of the CLOUD Act gave a new impulse to the ongoing political debate about "digital sovereignty".

A year after the passage of the Act, an article in the French paper Les Echos reported that "[m]any observers feel that American justice could be deploying [the Cloud Act] for purposes of economic espionage.”

"In a nutshell, the CLOUD Act amounted to a consolidation and expansion of the arrangements established by the earlier 2001 PATRIOT Act which had significantly extended the government's powers of access to data held by US-based global providers, irrespective of the storage location of that data."The French politician Ms Laure de la Raudiere who co-chairs a parliamentary cyber-security and sovereignty committee described the CLOUD Act as "a wakeup call for Europe to accelerate its own sovereign capabilities in the data sector".

In response to the concerns articulated by various political and business leaders, the French government called upon French companies to rely on "CLOUD-Act-safe" data providers.

In the meantime, on 25 May 2018, a few months after the adoption of the CLOUD Act by the US Congress, the General Data Protection Regulation (GDPR) entered into effect. In the next part of this series we will look at the GDPR and its implications for transatlantic data traffic between the EU and the US.

Recent Techrights' Posts

Slopwatch: LinuxSecurity, UbuntuPIT, and Google News
We've also just noticed more slop from UbuntuPIT
Microsoft Windows is No Longer an Operating System, It's Surveillance Project
Why is this even legal to preload on PCs outside the US?
 
The Slop Song
The train wreck marches on
LLM Slop/Advanced Plagiarism Flooding the Zone With Capital That Does Not Exist
Many publishers out there still participate in this bubble instead of calling it what it is
Links 09/10/2025: Sacked Microsoft Workers Make "Sackbird", IBM Taps CockroachDB for PostgreSQL
Links for the day
"Happy Hacking Day" Richard Stallman Talk This Afternoon (From 14:00 to 16:00) at Haaga-Helia University in Pasila
Richard Stallman in Helsinki, Finland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 08, 2025
IRC logs for Wednesday, October 08, 2025
Links 09/10/2025: Impact of Microsoft Layoffs, More Data Breaches
Links for the day
Gemini Links 09/10/2025: Autumn Blues and C IRC Bot
Links for the day
Slopwatch Appreciated by Real Authors of GNU/Linux Articles
We do try to keep on top of those things
Upgraded R.R.R.R.R.R. Today
The Web of 2025 is full of garbage, not limited to slopfarms
Freedom From Proprietary Prisons
Forking always an option
IBM's Watson Died in 1956, Now Watson Dies Again
IBM is becoming just a reseller of GAFAM and other stuff
Microsoft Says That Constant Mass Layoffs Are Success, the Media Isn't Buying This Microsoft Narrative Anymore
If people in the media feel an obligation to repeat whatever lies Microsoft tells, what point will there be to the media?
Links 08/10/2025: "Mali Puts Free Speech on Trial" And Apple Enforces Dictatorship
Links for the day
Links 08/10/2025: ‘Death to Spotify’ and Law to Ban Loud Commercials on Streaming (Dis)Services
Links for the day
Links 08/10/2025: Real Innovation and Nina.chat is Dead
Links for the day
Links 08/10/2025: Y2K38 Bug is a Vulnerability, Chat Control in Europe a Threat
Links for the day
How and Why Once-Legitimate Sites Turn Into Slopfarms
Many sites will go offline and many social control networks will shut down once they realise or even openly admit they spend money and time gardening a bunch of bots and slop
UbuntuPIT Became a Slopfarm and Gnoppix Tarnishes Its Own Brand With Slop
It fits all the characteristics of mildly-edited (if at all) slop
Slopwatch: Linux Journal and Other Slopfarms
GAFAM needs to go the way of the dodo
Gemini Links 08/10/2025: "Seek Seek Revolution" and Gradient Backgrounds
Links for the day
Qualcomm Arduino Takes Aim at Raspberry Pi
Qualcomm is a Microsoft partner
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 07, 2025
IRC logs for Tuesday, October 07, 2025
Stagnation of the Economy and What Free Software Can (or Could) Do For It
If your economic model is based on a pyramid of lies, it won't last very long
Social Control Media is Sinking
it would rightly seem like the era of centralised "social" sites (they're not social, they're about controlling the users) is ending, not overnight but gradually
Participation in Cancel Culture Detrimental to One's Career
A cautionary tale
Passion Wins
we've increased the number of birds we feed to 100+
How Solderpunk and Sean Conner Started Gemini Protocol (and, Collectively, Geminispace) Back in 2019
Based on the "official" history
Arduino is Now a Patent Bully (Qualcomm)
Qualcomm has just bought Arduino
Many Years of Microsoft Cancellations and Faked (Acquired) Revenue "Growth"
XBox is basically the "next Skype"
The Comment TheLayoff.com Has Just Censored for Criticising a Ridiculous Puff Piece of IBM Management
If comments get censored for their "style" rather than their substance, then society will be worse off
The Power of Writing Down Facts
The more we write and publish, the more people will know what happened
Microsoft's Non-Denying Denial About XBox's Death is Already Being Shattered to Pieces
Like Microsoft's 'open' 'hey hi', heralding meaningless non-committing agreements with AMD is little more than vapourware
Slopwatch: UbuntuPIT Joins the Slopfarms Club
Slopfarms gonna slop
Links 07/10/2025: Privacy at Risk, GAFAM Remains Off the Hook
Links for the day
Gemini Links 07/10/2025: Modern Retro Console Idea and Batch vs Bash
Links for the day
Links 07/10/2025: International Criminal Court (ICC) Convicts Ali Kushayb; Moroccan Imprisoned for 'Offensive' Shirt
Links for the day
Links 07/10/2025: EU' Chat Control is Back, US Cracks Down on Democracy
Links for the day
Techrights Pursues Justice and Truth Because, Without Those, Society Descends Into Chaos
most people reject dogma and pseudoscience
Upcoming Talks by Richard Stallman in Helsinki, Göteborg, and Rome
Join with him and share the software
Something Bad is Happening in the Open Source Initiative (OSI)
The latest OSI blog post is from a Microsoft operative and a few weeks ago the Executive Director left
TLS 1.3 Dominates Geminispace (99% of Known Capsules)
it's nowadays safe to assume almost every capsule can handle TLS 1.3
Why soylentnews.org Has Been Having Technical Difficulties Lately
The network has been going up and down quite a lot this past week
A Statement Against Violence
The facts are on our side
They've Run Out of Things to Rebrand or Label as "AI"
The next few years will be interesting because if Microsoft lays off tens of thousands of workers each year, there won't be much left except mountains of debt and dying brands
The Register MS is Still Being Paid to Participate in the "AI" Ponzi Scheme Which Will Crash the Economy
The Register MS is hoping to get lucky by tricking people into a scam
Richard Stallman Confirms His Talk in Göteborg This Coming Friday
"The hosts say that the list will not be given to the state"
Most of the "Linux" Results This Morning in Google News Are LLM Slop From the Same Slopfarm, Plagiarising Phoronix
The main question is, does Google even care at this point?
Gemini Links 07/10/2025: Civil War and "Goodbye Web"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 06, 2025
IRC logs for Monday, October 06, 2025