Cloudy with a Chance of Clearing: U.S. CLOUD Act and European Response
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- Recently adopted U.S. Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) and the draft EU regulation on sharing electronic evidence (“e-Evidence Regulation”) signal a potential change in the approach to cross-border data transfer for law enforcement purposes.
- The CLOUD Act creates a new mechanism for U.S. and foreign law enforcement agencies to request data located abroad from providers of electronic communications and remote computing services. The e-Evidence Regulation, if enacted, provides an analogous process for law enforcement agencies in the EU Member States.
- Both would allow targets of law enforcement to challenge requests on the basis of conflict with foreign law.
- These developments suggest that legislators on both sides of the Atlantic may be slowly moving towards a more harmonized approach to foreign data collection, which would benefit companies often caught in the middle of conflicting U.S. and EU legal demands.