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An Analysis of the CLOUD Act and Implications for India

Posted by Elonnai Hickok and Vipul Kharbanda at Aug 22, 2018 02:55 PM |
India houses the second largest population in the world at approximately 1.35 billion individuals. In such a diverse and dense context, law enforcement could be a challenging job.

Introduction

Networked technologies have changed the nature of crime and will continue to do so. Access to data generated by digital technologies and on digital platforms is important in solving online and offline crimes. Yet, a significant amount of such data is stored predominantly under the control of companies in the United States. Thus, for Indian law enforcement to access metadata (location data or subscriber information), they can send a request directly to the company. However for access to content data, law enforcement must follow the MLAT process as a result of requirements under the Electronic Communications Privacy Act (ECPA).  ECPA allows service providers to share metadata on request of foreign governments, but requires a judicially issued warrant based on a finding of ‘probable cause’ for a service provider to share content data.

The challenges associated with accessing data across borders has been an area of concern for India for many years. From data localization requirements, legal decryption mandates, proposed back doors- law enforcement and the government have consistently been trying to find efficient ways to access data across borders. 

Towards finding solutions to the challenges in the MLAT process, Peter Swire and Deven Desai in the article “A Qualified SPOC Approach for India and Mutual Legal Assistance” have noted the importance of finding a solution to the hurdles in the India - US MLAT and have suggested that reforms for the MLAT process in India should not start with law enforcement, and have instead proposed the establishment of a Single Point of Contact designated to handle and process government to government requests with requests emerging from that office receiving special legal treatment.

Frustrations with cross border sharing of data are not unique to India and the framework has been recognized by many stakeholders for being outdated, slow, and inefficient - giving rise to calls from governments, law enforcement, and companies for solutions. As a note, some research has also highlighted that the identified issues with the MLAT system are broad and more evidence is needed to support each concern and inform policy response.

Towards this, the US and EU have undertaken clear policy steps to address the tensions in the MLAT system by enabling direct access by governments to content data. On April 17 2018, the European Union published the E-Evidence Directive and a Regulation that allows for a law enforcement agency to obtain electronic evidence from service providers within 10 days of receiving a request or 6 hours for emergency requests and request the preservation or production of data. Production orders for content and transactional records can be issued only for certain serious crimes and must be issued by a judge.  No judicial authorisation is required for production orders for subscriber information and access data, and it can be sought to investigate any criminal offense, not just serious offenses. Preservation orders can be issued without judicial authorisation for all four types of data and for the investigation of any crime. Further, requests originating from the European Union must be handled by a designated legal representative. Preservation orders can be issued for all four types of data. Further, requests originating from the European Union must be handled by a designated legal representative.

On the US side, in 2016, the Department of Justice (DoJ) put out draft legislation that would create a framework allowing the US to enter into executive agreements with countries that have been evaluated as meeting criteria defined in the law. Our response to the DoJ draft Bill can be found here. In February 2018, the Microsoft Ireland Case was presented before the U.S Supreme Court. The question central to the case was whether or not a US warrant issued against a company incorporated in the US was valid if the data was stored in servers outside of the US. On March 23, 2018, the United States government enacted the “Clarifying Lawful Overseas Use of Data Act” also known as the CLOUD Act. The passing of the Act solves the dilemma found in the Microsoft Ireland case. The CLOUD Act amends Title 18 of the United States Code and allows U.S. law enforcement agencies to access data stored abroad by increasing the reach of the U.S. Stored Communication Act, enabling access without requiring the specific cooperation of foreign governments. Under this law, U.S. law enforcement agencies can seek or issue orders that compel companies to provide data regardless of where the data is located as long as the data is under their “possession, custody or control”. It further allows US communication service providers to intercept or provide the content of communications in response to orders from foreign governments if the foreign government has entered into an executive agreement with the US upon approval by the Attorney General and concurrence with the Secretary of State. The Act also absolves companies from criminal and civil liability when disclosing information in good faith pursuant to an executive agreement between the US and a foreign country. Such access would be reciprocal, with the US government having similar access rights to data stored in the foreign country.  

Though the E-Evidence Directive is a significant development, in this article - we focus on the CLOUD Act and its implications for cross border sharing of data between India and the US.


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