Overcoming Constitutional Objections to the CLOUD Act

Peter Swire Elizabeth and Thomas Holder Chair, Georgia Tech Scheller College of Business
Justin Hemmings Research Faculty Member, Georgia Tech Scheller College of Business

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February 24, 2020

In 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act or “CLOUD” Act. Designed to respond to the “globalization of criminal evidence,” the Act “creates a new system of executive agreements designed to speed the access of foreign law enforcement to data where the Act’s privacy and human rights safeguards are met.” Absent congressional interference, and despite the concerns of advocates who worry that the Act will decrease privacy protections, this July will see the first real test of its constitutionality and practicality when the first executive agreement, between the U.S. and the U.K., goes into effect.

In a new ACS Issue Brief, Professor Peter Swire and Justin Hemmings of the Georgia Institute of Technology Scheller College of Business, assert that the CLOUD Act and the U.S.-U.K. executive agreement are both likely to survive Fourth Amendment constitutional scrutiny. Arguing that the Act “rests on firm, if untested, constitutional grounds,” Swire and Hemmings explain that by incorporating “protections designed to assure compliance with the Fourth Amendment,” the Act is an “attempt to mediate [privacy] concerns and provide a path forward for cross-border data requests.”