of any international treaties on extraterritorial reach for US warrants (provided under action 103(c) of the Act).
This comity right is especially important in light of the Europe General Data Protection Regulation (GDPR) which was implemented in 25 May 2018. If there is a conflict of laws regarding the reach of the US search warrants according to GDPR’s relevant provisions, cloud serveice providers such as Microsoft is under the common law given the right to launch a comity analysis, which better protects EUorpean customers.
What the CLOUD Act creates
The CLOUD Act is an important milestone in the journey to modernise the law. It has the important implication of not only preserving rights but it also creates a foundation for a new generation of international agreements to find the fundamental balance between data protection and efficiency of state prosecution involving multiple jurisdictions.
The Act provides the framework and statute authority for US to cooperate with other countries for purposes of crime investigation and law enforcement. These agreements can provide similar but more concrete guidance with respect to the Cyberspace than existing Mutual Legal Assistance Treaties.
The litigation and the passage of the Act also incentivises other government to review their digital privacy law and surveillance requests. In Europe last week, the European Commission presented its proposed e-Evidence legislation to the European Parliament. Many other governments are similarly seeking to update their laws to protect privacy, promote digital security and address the challenge of an increasingly borderless world.
Fifth, the CLOUD Act gives cloud service providers added and direct legal rights to protect privacy under these international agreements. These rights come in two complementary forms. The first gives providers the right to inform foreign governments that have these agreements when their citizens are impacted by U.S. warrants. And second, providers can go directly to court to raise comity concerns under a new statutory process when the U.S. seeks a warrant that goes beyond the scope of an agreement and that conflicts with a foreign law.