The US CLOUD Act and EU Law

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 by Alexandre Veronese, Professor at University of Brasília

In March 2018, the President of the United States of America signed into Law a Bill approved by the Congress, which amended two parts of the US Code, the consolidation of the federal statutory norms of the country. The Clarifying Lawful Overseas Use of Data Act – CLOUD Act – was the third version of two preceding bills. Those prior bills tried to solve a grave contemporary issue: the difficulty to access electronic data that could be necessary to criminal investigations and prosecution. The new CLOUD Act changes mainly two passages of the US Code. It creates the possibility that the United States and foreign countries could sign executive agreements to grant mutual assistance in order to authorize the gathering of overseas data. In addition, the CLOUD Act creates standards to those agreements.

The United States of America have a long standing right to due process of law entrenched in the Fourth Amendment of its Constitution. The debate about the limits to access information captured by the means of new ways of communication is rather old in the US. The Federal Wiretap Act came to the US Code amidst the Omnibus Crime Control and Safe Streets Act of 1968. It was a huge alteration of the Title 18 of US Code, which is the Crimes and Criminal Procedures federal statutory law. Therefore, the federal statutory law received provisions that could regulate the lawful wiretapping in criminal investigations and the use of them between agencies and jurisdictions. Notwithstanding, the passing of time and the evolution of technologies showed the aging of those legal norms. A lot of the information that matters to seize, in order to archive effective evidence to use in investigations, came to be electronic. It was necessary to modify the Wiretap Act and, in 1986, it came the Electronic Communications Privacy Act. The new Act modernized the Law and it regulated the criminal features related to stored electronic information – the Stored Communications Act. The Patriot Act (2001 and 2006) brought to light some provisions regarding to overseas information that were made more detailed with the amendments signed into law in 2008.
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