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February 21, 2018

Miller Joins Bipartisan Coalition Urging Congress to Pass CLOUD Act

36 attorneys general press Congress to clarify when law enforcement can obtain email data stored on foreign servers

(DES MOINES, Iowa) Attorney General Tom Miller today joined a bipartisan group of state attorneys general in urging Congress to clarify how U.S. law enforcement pursuing domestic criminal investigations can access electronic data stored overseas.

In a letter signed by 35 attorneys general, the group urged Congress to pass the Clarify Lawful Overseas Use of Data, or CLOUD Act. The CLOUD Act would update and amend several provisions of the Stored Communications Act (SCA).

Under the SCA, a law enforcement agency may obtain a warrant to search a person’s email or online account if a court finds probable cause that the account contains evidence of a crime. The warrant requires a service provider to provide the data to law enforcement.

State and local law enforcement agencies routinely use SCA warrants to investigate crimes ranging from drug trafficking to murder to child sexual exploitation. Recently, however, some service providers have argued that courts cannot enforce an SCA warrant when data that law enforcement seeks is stored on a foreign server, even if the provider and the customer who created the data are in the United States and that data can be accessed from the U.S. The providers and others have argued that requiring compliance with an SCA warrant in this situation would be an extraterritorial application of a domestic law and would raise significant privacy and international comity concerns—that is, limiting domestic jurisdiction out of courtesy or respect for foreign sovereignty.

The dispute has spawned litigation across the country, including the case of United States v. Microsoft, which is currently pending in the United States Supreme Court.

Today’s letter urges Congress to pass the CLOUD Act as “an important step toward resolving this dispute.” The CLOUD Act “both confirms law enforcement’s ability to obtain probable-caused based warrants for electronic communications stored abroad and creates a clear avenue for service providers to challenge an SCA warrant that targets a foreign person and which would require a provider to violate foreign law. The Act also creates incentives for our foreign partners to enter into bilateral agreements that will facilitate cross-border criminal investigations, while ensuring that privacy and civil liberties are respected.”

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