There’s a solution in Congress that will help law enforcement gather electronic evidence, often stored on servers abroad, while reducing conflicts of law facing cloud storage providers: the Clarifying Lawful Overseas Use of Data (CLOUD) Act.
Data — meaning evidence — is now global. The CLOUD Act makes clear when U.S. warrants apply, considers the applicable laws of other countries, and creates a framework for bilateral cooperative agreements that allow for cross-border data requests to be handled through domestic legal processes. The proposed U.S.-UK agreement is a good model.
Current law enforcement challenges: Fundamental changes in how evidence is created, stored and collected make it more difficult to access. The lack of a modernized system to process requests for access to foreign data delays investigations. Disparate legal systems and opposing views among foreign countries on how the U.S. government seeks to obtain evidence make it both it difficult to access such data and legally risky for all global companies, not just technology firms.
These issues lie at the core of ongoing litigation between technology companies and the government over the applicability of U.S. warrants. The most prominent case, Microsoft Corporation vs. United States, is set to be argued before the Supreme Court on February 27.
Congress should notice support from both the law enforcement and technology communities on this issue and seize the opportunity to modernize these important laws. Michael Chertoff is co-founder and executive chairman of the Chertoff Group and a former U.S. Secretary of Homeland Security.