Theres a new, proposed backdoor to our data, which would bypass our Fourth Amendment protections to communications privacy. It is built into a dangerous bill called the CLOUD Act, which would allow police at home and abroad to seize cross-border data without following the privacy rules where the data is stored.
This backdoor is an insidious method for accessing our emails, our chat logs, our online videos and photos, and our private moments shared online between one another. This backdoor would deny us meaningful judicial review and the privacy protections embedded in our Constitution.
This new backdoor for cross-border data mirrors another backdoor under Section 702 of the FISA Amendments Act, an invasive NSA surveillance authority for foreign intelligence gathering. That law, recently reauthorized and expanded by Congress for another six years, gives U.S. intelligence agencies, including the NSA, FBI, and CIA, the ability to search, read, and share our private electronic messages without first obtaining a warrant.
The new backdoor in the CLOUD Act operates much in the same way. U.S. police could obtain Americans data, and use it against them, without complying with the Fourth Amendment.
For this reason, and many more, EFF strongly opposes the CLOUD Act.
The CLOUD Act (S. 2383 and H.R. 4943) has two major components. First, it empowers U.S. law enforcement to grab data stored anywhere in the world, without following foreign data privacy rules. Second, it empowers the president to unilaterally enter executive agreements with any nation on earth, even known human rights abusers. Under such executive agreements, foreign law enforcement officials could grab data stored in the United States, directly from U.S. companies, without following U.S. privacy rules like the Fourth Amendment, so long as the foreign police are not targeting a U.S. person or a person in the United States.
That latter component is where the CLOUD Acts backdoor lives.
When foreign police use their power under CLOUD Act executive agreements to collect a foreign targets data from a U.S. company, they might also collect data belonging to a non-target U.S. person who happens to be communicating with the foreign target. Within the numerous, combined foreign investigations allowed under the CLOUD Act, it is highly likely that related seizures will include American communications, including email, online chat, video calls, and internet voice calls.
Under the CLOUD Acts rules for these data demands from foreign police to U.S. service providers, this collection of Americans data can happen without any prior, individualized review by a foreign or American judge. Also, it can happen without the foreign police needing to prove the high level of suspicion required by the U.S. Fourth Amendment: probable cause.
Once the foreign police have collected Americans data, they often will be able to hand it over to U.S. law enforcement, which can use it to investigate Americans, and ultimately to bring criminal charges against them in the United States.
According to the bill, foreign police can share the content of a U.S persons communications with U.S. authorities so long as it relates to significant harm, or the threat thereof,to the United States or United States persons. This nebulous standard is vague and overbroad. Also, the bills hypotheticals indicate far-ranging data sharing by foreign police with U.S. authorities. From national security to violent crime, from organized crime to financial fraud, the CLOUD Act permits it all to be shared, and likely far more.
Moreover, the CLOUD Act allows the foreign police who collect Americans communications to freely use that content against Americans, and to freely share it with additional nations.
To review: The CLOUD Act allows the president to enter an executive agreement with a foreign nation known for human rights abuses. Using its CLOUD Act powers, police from that nation inevitably will collect Americans communications. They can share the content of those communications with the U.S. government under the flawed significant harm test. The U.S. government can use that content against these Americans. A judge need not approve the data collection before it is carried out. At no point need probable cause be shown. At no point need a search warrant be obtained.
This is wrong. Much like the infamous backdoor search loophole connected to broad, unconstitutional NSA surveillance under Section 702, the backdoor proposed in the CLOUD Act violates our Fourth Amendment right to privacy by granting unconstitutional access to our private lives online.
Also, when foreign police using their CLOUD Act powers inevitably capture metadata about Americans, they can freely share it with the U.S. government, without even showing significant harm. Communications content is the words in an email or online chat, the recordings of an internet voice call, or the moving images and coordinating audio of a video call online. Communications metadata is the pieces of information that relate to a message, including when it was sent, who sent it, who received it, its duration, and where the sender was located when sending it. Metadata is enormously powerful information and should be treated with the same protection as content.
To be clear: the CLOUD Act fails to provide any limits on foreign police sharing Americans metadata with U.S. police.
The CLOUD Act would be a dangerous overreach into our data. It seeks to streamline cross-border police investigations, but it tears away critical privacy protections to attain that goal. This is not a fair trade. It is a new backdoor search loophole around the Fourth Amendment.
Tell your representative today to reject the CLOUD Act.
Take Action
Stop the CLOUD Act
Originally posted here:
A New Backdoor Around the Fourth Amendment: The CLOUD Act ...
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age - April 26th, 2014 [April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... - April 26th, 2014 [April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video - April 26th, 2014 [April 26th, 2014]
- Protections for e-data clear Senate committee - April 27th, 2014 [April 27th, 2014]
- Weighing The Risks Of Warrantless Phone Searches During Arrests - April 29th, 2014 [April 29th, 2014]
- Court may let cops search smartphones - April 29th, 2014 [April 29th, 2014]
- Supreme Court to hear case on police searches of cellphones - April 29th, 2014 [April 29th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant - April 30th, 2014 [April 30th, 2014]
- What Scalia knows about illegal searches - April 30th, 2014 [April 30th, 2014]
- Should police be allowed to search your smartphone - Video - April 30th, 2014 [April 30th, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans - May 1st, 2014 [May 1st, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars - May 3rd, 2014 [May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause - May 3rd, 2014 [May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia - May 3rd, 2014 [May 3rd, 2014]
- Smartphones and the Fourth Amendment - Video - May 4th, 2014 [May 4th, 2014]
- Fourth Amendment Defined & Explained - Law - May 6th, 2014 [May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? - May 8th, 2014 [May 8th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video - May 9th, 2014 [May 9th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request - May 10th, 2014 [May 10th, 2014]
- The Fourth Amendment - Video - May 10th, 2014 [May 10th, 2014]
- License reader lawsuit can be heard, appeals court rules - May 15th, 2014 [May 15th, 2014]
- Seize the Rojo - Video - May 16th, 2014 [May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants - May 16th, 2014 [May 16th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery - May 18th, 2014 [May 18th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video - May 21st, 2014 [May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights - May 22nd, 2014 [May 22nd, 2014]
- The Fourth Amendment Rights - Video - May 23rd, 2014 [May 23rd, 2014]
- Bangor Area School District teachers vote no to random drug - May 24th, 2014 [May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video - May 27th, 2014 [May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video - August 31st, 2014 [August 31st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights - September 3rd, 2014 [September 3rd, 2014]
- 4th Amendment - Laws.com - September 4th, 2014 [September 4th, 2014]
- YOU CAN ARREST ME NOW (cops refuse, steal phone) - Video - September 7th, 2014 [September 7th, 2014]
- The Feds Explain How They Seized The Silk Road Servers - September 8th, 2014 [September 8th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? - September 9th, 2014 [September 9th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained - September 10th, 2014 [September 10th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting - September 10th, 2014 [September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision - September 12th, 2014 [September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video - September 12th, 2014 [September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule - September 15th, 2014 [September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters - September 16th, 2014 [September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game - September 19th, 2014 [September 19th, 2014]
- Judge expounds on privacy rights - September 20th, 2014 [September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance - September 20th, 2014 [September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video - September 20th, 2014 [September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids - September 22nd, 2014 [September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason - September 23rd, 2014 [September 23rd, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs - September 27th, 2014 [September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina - September 29th, 2014 [September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland - October 1st, 2014 [October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule - October 2nd, 2014 [October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... - October 3rd, 2014 [October 3rd, 2014]
- Argument preview: How many brake lights need to be working on your car? - October 3rd, 2014 [October 3rd, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video - October 4th, 2014 [October 4th, 2014]
- Ap Government Fourth Amendment Project - Video - October 4th, 2014 [October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video - October 5th, 2014 [October 5th, 2014]
- Feds Hacked Silk Road Without A Warrant? Perfectly Legal, Prosecutors Argue - October 7th, 2014 [October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case - October 7th, 2014 [October 7th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? - October 9th, 2014 [October 9th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated - October 9th, 2014 [October 9th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video - October 9th, 2014 [October 9th, 2014]
- Leggett sides with civil liberties supporters - October 10th, 2014 [October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video - October 10th, 2014 [October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video - October 10th, 2014 [October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid - October 11th, 2014 [October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net - October 13th, 2014 [October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? - October 14th, 2014 [October 14th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? - October 19th, 2014 [October 19th, 2014]
- When Can the Police Search Your Phone and Computer? - October 21st, 2014 [October 21st, 2014]
- Supreme Court to decide if cops can access hotel registries without warrants - October 22nd, 2014 [October 22nd, 2014]
- Third Circuit Allows Evidence from Warrantless GPS Device - October 22nd, 2014 [October 22nd, 2014]
- US court rules in favor of providing officials access to entire email account - October 24th, 2014 [October 24th, 2014]
- EL MONTE POLICE OFFICER VIOLATES ARMY VETERAN'S FOURTH AMENDMENT RIGHT - Video - October 25th, 2014 [October 25th, 2014]
- FBI demands new powers to hack into computers and carry out surveillance - October 30th, 2014 [October 30th, 2014]
- Fourth Amendment (United States Constitution ... - November 4th, 2014 [November 4th, 2014]
- Fourth Amendment - Video - November 4th, 2014 [November 4th, 2014]
- Call Yourself a Hacker and Lose Fourth Amendment Rights - Video - November 5th, 2014 [November 5th, 2014]
- Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause - November 7th, 2014 [November 7th, 2014]