When It Comes to Reproductive Rights, Ohio Is No Purple State

Ohio has enacted an extraordinary number of new restrictions on reproductive rights since 2010. It is second in the country—behind Texas—in the rate of abortion clinic closings, having gone from sixteen to eight in just seven years. Ohio was the first state to pass restrictions on medication-only abortion back in 2004, and it is one of the first states to have adopted a restriction on abortion following a diagnosis of fetal Down syndrome. (The former law was made irrelevant by a change in federal law, and the latter was recently found unconstitutional by a federal court.) Ohio’s most recently introduced abortion restriction, H.B. 565, would outlaw all abortions without exception and, by making abortion equivalent to murder, it would subject women and doctors who participate in this extremely common, safe, and constitutionally-protected health-care procedure to possible life imprisonment or even the death penalty.

When did Ohio become such a radical anti-abortion state, and why? Have Ohioans shifted politically to the right in recent years? This seems unlikely. Nationwide, support for abortion rights is as high as it has ever been, and the available Ohio poll numbers are not noticeably skewed toward the anti-abortion side.

Rather, as a recent article explains, gerrymandering and an aggressive legislative strategy by anti-abortion activists have resulted in a legislature that is far out of step with typical Ohioans. There is also ample evidence that anti-abortion activists are calling the shots at all levels of government in Ohio: Mike Gonidakis, the president of Ohio Right to Life, serves on the state medical board, and at least one news story suggests that the anti-abortion organization has been a moving force behind the drafting of new abortion restrictions.

Still, it’s natural to wonder why the Ohio General Assembly insists on adopting laws that are both blatantly unconstitutional and clearly out of step with the political sentiments of average Ohioans. The answer is that anti-abortion legislators are playing both a long game and a short game. The short game centers on political gain. There is very little cost, but a huge political benefit, for a politician who votes to pass an abortion ban that he knows will be struck down by the courts. Passing the law makes his most fervent anti-abortion constituents happy, as it demonstrates support for ending abortion in the state. At the same time, the legislator is never forced to actually live with the consequences of the law: most such laws (like the “heartbeat” abortion bans that have been attempted in various states) will get challenged before they go into effect and immediately blocked by the courts. It’s a win-win for Republican legislators trying to please hard-core antiabortion constituents while surviving politically in a purple state.

The long game is overruling Roe v. Wade. Anti-choice Ohio politicians realize that they may lose at first in the lower courts but hope that they will ultimately get in front of the Supreme Court with The Case That Overturns Roe. This will achieve their long-running goal of removing protected status for abortion rights and returning the power to states to decide whether, and under what conditions, to permit abortions.

In the view of many abortion opponents, Roe v. Wade was not only a morally incorrect decision, but a shameless usurpation of power by the Supreme Court. Emboldened by President Trump’s appointment of Neil Gorsuch to the U.S. Supreme Court, as well as by the likelihood that Trump will have the opportunity to appoint another justice in the near future, they seek to finally set right this perceived constitutional wrong. Indeed, other states besides Ohio are passing similar laws, each hoping to be the first to the Supreme Court in the next landmark abortion case. For instance, Indiana has also passed a ban on abortions based on fetal anomaly, which has recently been struck down by the courts, and Utah is currently considering one. In another setback, the U.S. Supreme Court recently paved the way for restrictions on medication-induced abortions in Arkansas that could lead to the closing of two of the state's three abortion clinics. The Supreme Court already rejected a similar restrictive bill in Whole Woman’s Health, yet this decision will allow the Eighth Circuit to ignore the precedent set by this case.

There is an irony here, though. Anti-abortion activists seek to correct an imagined harm to democracy through anti-democratic means. They seek to eliminate the right to abortion entirely, although a clear majority of the population approves of safe and affordable access. They ask the Supreme Court to return control over abortion to the states, where heavily gerrymandered Republican majorities enact policies that are out of step with the views of most Americans. And while waiting for Roe to be overruled, they rely on unelected federal judges to provide them with political cover for enacting radical policies that will never go into effect. Ohio, and other purple states, deserve better.

B. Jessie Hill is Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law.

Why Texas’s Systematic Elimination of Grassroots Voter Registration Drives Could Spread

by Mimi Marziani and Robert Landicho

In the last two years, millions of everyday Americans—totaling 20% of all adults—have taken to the streets, the airports, the courthouses, state capitals, and other public places to make their voices heard. More have spoken out online. And, activism has not been confined to urban centers—in Alpine Texas, for example, a small town with a population just shy of 6,000 people, nearly 100 protestors hiked across the desert (in a rare rainstorm no less!) during the 2017 Women’s March.

“History doesn’t repeat itself but it often rhymes.” Throughout American history, state and federal governments have all too often met periods of social and political activism with backlash—restricting our First Amendment rights of expression, association, and petition. And indeed, there is evidence of growing hostility towards protesting, community organizing, efforts to turn out the vote, and other protected forms of civic engagement today.

For instance, President Donald J. Trump has used Twitter to try to undermine grassroots activism and threaten protestors, tweeting specious arguments then recycled by media, politicians, even celebrities. This started following the 2016 election when, infamously, Mr. Trump re-tweeted a photo of buses in Austin, Texas to support claims that post-election protests were run by “professional protestors, incited by the media.”  (Those buses were used by a software company for conference attendees).

History teaches that blowback against activism can be particularly intense when grassroots movements become strong enough to threaten the balance of political power. Douglas McAdam, a Stanford sociology professor, has explained that “southern legislatures—especially in the Deep South—responded to the Montgomery Bus Boycott (and the Supreme Court’s decision in Brown v. Board of Education) with dozens […] of new bills outlawing civil rights groups, limiting the rights of assembly, etc. all in an effort to make civil rights organizing more difficult,” invoking claims of “professional” agitators to undermine grassroots movements. In early 2017 alone, at least 18 states (including in Texas) introduced laws geared to curb protests and community organizing, including a string of laws decreasing or eliminating the liability of drivers who injure protestors who block roads. The spook of “professional protestors” is expressly evoked to justify the laws.

As of the date of publication, it is unknown how citizen activism like #MeToo, #NeverAgain, and the #Resistance might translate into new policies or new elected representatives. But, there’s little doubt that, like the 1960s, we are in a time of unusually high grassroots energy, particularly among persons of color, women, and young people that will likely gain speed as the midterm elections approach. As a result, we must expect—and be prepared to fight—efforts to restrict protesting, organizing, and voter activity under the guise of targeting “professional” agitators.

Cue Texas. Anyone looking for a blueprint to suppress grassroots power-building will look toward the Lone Star State. The possibility that grassroots energy of historically disenfranchised groups could shift political power in Texas has been on its legislature’s mind since at least 2011. Indeed, numerous courts have now agreed that the reality of changing demographics motivated Texas to draw racially discriminatory legislative districts and enact a racially discriminatory voter photo ID law. The associated court battles have been widely publicized and exhaustively analyzed.

But in 2011, Texas also introduced new rules (or fortified existing procedures) governing third-party voter registration activities (for simplicity, “voter registration drives”). These rules make organizing voter registration drives wrought with legal (and sometimes felony) liability. As one community organizer put it, Texas law requires “a PhD in voter-obstacle-ology to navigate the system.” Even worse, in 2017, Texas passed new criminal penalties, further upping the stakes.

For the reasons that follow in our ACS Issue Brief, the voter registration restrictions in Texas are, at bottom, equally as threatening to voter engagement as (for example) discriminatory redistricting maps or voter ID laws—but restrictions on voter registration activity have been largely overlooked, and not properly scrutinized by the courts. This paper seeks to correct this imbalance, at a critical time in our nation’s history. Just as those who seek to undermine grassroots expressive activity in 2018 and beyond might look to Texas, our experience in Texas also provides a roadmap to fight back.

From Russia With Love: More Questions for Congress (Part II – Mueller Probe)

The first release, “Unclassified 1st Installment in Russia Report, Updated Recommendations on Election Security, by the Senate Select Committee on Intelligence (SSCI) complements the majority and minority reports of the House Permanent Select Committee on Intelligence (HPSCI). Together, these sources explicitly raise or indicate important questions that Congress should continue to investigate and address.

Threshold Questions for Congress

Will Congress continue to investigate Russian interference with, and activities meant to influence the outcome of the 2016 presidential election?

Will Congress continue to investigate Russian interference with states’ election systems and processes in 2016?

Subject to coordination with ongoing and future criminal investigations, will Congress compel the production of testimony and other information from any or all of the persons and entities identified in Appendices B and C of the HPSCI Democratic minority’s report?

Will Congress continue to investigate the flow of funds from the Russian government and its allies to persons and entities in the United States for the purpose of influencing the outcomes of past or future federal and state elections in the U.S?

Will Congress enact measures to prevent the flow of funds from the Russian government, other nations, and their agents and allies, to persons and entities in the United States for the purpose of influencing the outcomes of future federal and state elections in the U.S?

 

Questions Quoted from or Based on the HPSCI Minority Report

Hacking and dissemination of stolen emails

How did the Russians execute this cyber operation?

With whom did the Russians communicate about the operation, and with whom did they share the stolen cache?

Did the Trump campaign receive advance knowledge of, or access to, stolen information?

Did the stolen documents inform any of the Trump campaign’s activity, including voter persuasion and targeting?

What was the chain of custody of the hacked and stolen emails that were then weaponized and strategically released?

 

Trump campaign’s knowledge of email hack

What specifically did the Russians relay to Mr. Papadopoulos and other persons?

How did the Russians relay it, and with whom on the campaign did Mr. Papadopoulos share this information?

Were others on or tied to the Trump campaign made aware of Russia’s efforts to hack and anonymously release the stolen emails?

 

Russia’s intermediaries

How were Russia-linked intermediaries tied to President Putin and the Kremlin?

Were they operating at the Kremlin’s direction or in concert with it?

What motivation did they have in probing and communicating with Trump campaign officials?

What messages did they convey to Trump campaign officials?

What information or impressions did they glean from Trump associates?

How did these approaches inform the Kremlin’s active measures campaign as election day neared?

Were agreements with respect to sanctions relief made between Russian agents and individuals affiliated with the Trump campaign or Trump transition operation?

 

Russia’s social media campaign

What is the map of the network of covert personas and accounts that Russia deployed on various social media platforms?

How did Russia amplify accounts and propaganda, including through paid advertising?

How did Russian disinformation spread within and across social media platforms?

How did Russian disinformation spread to press reporting and public debate?

How were the presidential campaigns used or harmed by this covert influence operation?

What policy and legislative changes can help guard against future foreign government weaponization of technology platforms?

 

Money-laundering and foreign payments to Paul Manafort and Rick Gates

Did Mr. Manafort’s and Mr. Gates’s reported money laundering activities, tied to pro-Russian interests, constitute a point of leverage that Russia sought to benefit from or exploit to gain access to the Trump campaign, particularly given that Mr. Manafort reportedly offered private briefings about the Trump campaign to these contacts?

 

Post-election effects and obstruction of justice

Why did National Security Adviser-designate Michael Flynn intervene with Russia after the Obama Administration imposed new sanctions to punish the country for its election interference, and what specifically did he and his Russian contact discuss?

  • Who directed or knew of Mr. Flynn’s intervention?
  • Why did Mr. Flynn and others, including President-elect and then President Trump, lie about this contact?

Did President Trump seek to obstruct the FBI’s investigation into Michael Flynn by pressuring FBI Director Comey to drop the investigation, by repeatedly requesting his loyalty, and by firing him?

Why did President Trump fire Director Comey?

  • Did President Trump fire Director Comey because the president wanted to thwart the FBI’s broader investigation into Russian interference in the U.S. election, which Director Comey announced publicly at a hearing before the House Intelligence Committee weeks before?
  • Did President Trump fire Director Comey because he refused to lift the Russia “cloud” over the President’s head?

Why did President Trump and his advisors reportedly write a misleading public statement following revelations in the summer of 2017 that his son, Donald Trump Jr., and two other senior campaign advisors attended a June 2016 meeting for which they were promised sensitive information from the Russian government which would be damaging to Hillary Clinton?

From Russia With Love: More Questions for Congress (Part I – Election Security)

After recent document dumps related to the probe into Russian meddling in the 2016 presidential election, there is a growing list of questions for congressional investigators.

In May, the Senate Select Committee on Intelligence (SSCI) issued its “Unclassified 1st Installment in Russia Report, Updated Recommendations on Election Security. The SSCI’s release focused on “Russian Targeting of Election Infrastructure During the 2016 Election.” The Committee concluded:

In 2016, cyber actors affiliated with the Russian Government conducted an unprecedented, coordinated cyber campaign against state election infrastructure. Russian actors scanned databases for vulnerabilities, attempted intrusions, and in a small number of cases successfully penetrated a voter registration database. This activity was part of a larger campaign to prepare to undermine confidence in the voting process. The Committee has not seen any evidence that vote tallies were manipulated or that voter registration information was deleted or modified.
In the 2018 election year, investigators should prioritize the big questions related to election security to prevent additional interference.

Will Congress elevate federal and state election security to the status of a primary national security issue?

What specific actions will Congress take to promote and protect election security in future federal and state elections?

In March, the Democratic Minority of House Permanent Select Committee on Intelligence (HPSCI) released its report entitled, Status of the Russia Investigation.

 

Election security questions drawn from the HPSCI report:

  • What specific vulnerabilities to voting systems exist?
  • What remedial measures are needed?
  • How should political parties, campaigns, and candidates secure their communications to defend against cyber attacks?
  • What measures and protocols should the federal government, including our intelligence and law enforcement agencies, adopt?
  • How can Congress facilitate these steps?

 

Questions based on the preliminary report of the SSCI and the SSCI’s Summary of Draft Recommendations concerning “Russian Targeting of Election Infrastructure During the 2016 Election”:

  • Will Congress determine whether state and local officials conduct  forensic examinations of their state and local election infrastructure in order to confirm whether their election-related systems were compromised?
  • On what evidence does the SSCI base its preliminary conclusion that it “...saw no evidence that votes were changed and found that, on balance, the diversity of our voting infrastructure is a strength”?
  • Does the Committee intend to investigate further whether votes were changed?
  • Why should states “remain firmly in the lead on running elections”?
  • How should the “U.S. Government...clearly communicate to adversaries that an attack on our election infrastructure is a hostile act, and we will respond accordingly”?
  • How should “[t]he Federal government, in particular the State Department and Defense Department, ...engage allies and partners to establish new international cyber norms”?
  • Will Congress investigate the cybersecurity practices of vendors of election software and equipment?
  • Why does the SSCI believe that the “U.S. election infrastructure is fundamentally resilient”?
  • Should Congress require paper records of votes in federal elections as a backup counting system that can be reliably verified?
  • Should Congress prohibit the use of Paperless Direct Electronic (DRE) voting machines in federal elections?

 

The SSCI recommends that state government and local government officials prioritize action on the following recommendations:

  • Institute two-factor authentication for state databases.
  • Install monitoring sensors on state systems. One option is to further expand DHS’s ALBERT network.
  • Identify the weak points in the network, including any under-resourced localities, and prioritize assistance towards those entities.
  • Update software in voter registration systems. Create backups, including paper copies, of state voter registration databases. Include voter registration database recovery in state continuity of operations plans.
  • Consider a voter education program to ensure voters check registration well prior to an election.
  • Undertake intensive security audits of state and local voter registration systems, ideally utilizing an outside entity.
  • Perform risk assessments for any current or potential third-party vendors to ensure they are meeting the necessary cyber security standards in protecting their election systems.

 

The SSCI further recommends that state governments take the following steps:

  • States should rapidly replace outdated and vulnerable voting systems.  At a minimum, any machine purchased going forward should have a voter-verified paper trail and no WiFi capability.
  • If use of paper ballots becomes more widespread, election officials should re-examine current practices for securing the chain of custody of all paper ballots and verify no opportunities exist for the introduction of fraudulent votes.
  • States should consider implementing more widespread, statistically sound audits of election results.  Risk-limiting audits, in particular, can be a cost-effective way to ensure that votes cast are votes counted.
  • DHS should work with vendors to educate them about the potential vulnerabilities of both voting machines and the supply chains.

Finally, as to federal financial assistance to the states, the SSCI recommends that “States should use federal grant funds to improve cybersecurity by hiring additional Information Technology staff, updating software, and contracting vendors to provide cybersecurity services, among other steps. Funds should also be available to defray the costs of instituting audits.”

 

Will Congress appropriate the funds states will need to make these improvements?

 

Will Congress require states to use these federal grant funds to implement these improvements in federal elections?

 

The SSCI also recommends the Department of Homeland Security (DHS) take the following steps:

  • Work closely with election experts, develop a risk management framework that can be used in engagements with state and local election infrastructure owners to document and mitigate risks to all components of the electoral process.
  • Create voluntary guidelines on cybersecurity best practices and a public awareness campaign to promote election security awareness, working through the U.S. Election Assistance Commission (EAC), the National Association of Secretaries of State (NASS), and the National Association of State Election Directors (NASED).
  • Maintain and more aggressively promote the catalog of services DHS has available for states to help secure their systems, and update the catalog as DHS refines their understanding of what states need.
  • Expand capacity to reduce wait times for DHS cybersecurity services.
  • Work with GSA to establish a list of credible private sector vendors who can provide services similar to those provided by DHS.

Will Congress mandate implementation by DHS of these activities in federal elections?

Worse Than Lochner? U.S. Supreme Court Workplace Law Decisions Use Interpretative Tools to Reach Conservative Outcomes

The 1905 United States Supreme Court case Lochner v. New York was rhetorically volleyed back and forth in the Court’s opinion released May 21 in Epic Systems v. Lewis by Justice Neil Gorsuch writing the majority opinion, and in the dissenting opinion penned by Justice Ruth Bader Ginsburg.  In Epic Systems, the Court ruled 5-4 that mandatory arbitration agreements that require individual employees to waive the right to join together with fellow employees in class or collective arbitrations do not run afoul of the National Labor Relations Act of 1935’s (NLRA) protections for concerted activity. This is because these waivers, according to the Court, are authorized by another statute passed by Congress 10 years earlier, the Federal Arbitration Act of 1925 (FAA). However,  neither the text of the FAA nor NLRA mention these waivers at all.

Justice Ginsburg called the majority’s opinion (joined by all justices appointed by Republican presidents) a return to Lochner, while Justice Gorsuch countered that it was the dissenting justices, Ginsburg, Breyer, Sotomayor and Kagan (all appointed by Democratic presidents) who were trying to use the case to enact their own policy preferences.

Who is right? In a sense, Epic Systems is different than Lochner, because this case involved how two federal statutes should be interpreted together, and Lochner was a constitutional challenge to legislative enactment. Joseph Lochner challenged the labor law in New York that prevented employees from working more than 10 hours a day in bakeries at the turn of the 20th Century as a violation of his constitutional right to due process under the Fourteenth Amendment to the U.S. Constitution. The Court agreed that he had freedom of contract to work more than ten hours a day and invalidated the law.  Since then, Lochner has symbolized constitutional intervention by a court substituting its own policy preferences for that of the legislature.  But in constitutional cases, Lochner has wide use because the language of the Constitution is sparse, much of it is over two hundred years old, and like all language is subject to varying interpretations.

In the Epic Systems case, and in the Encino Motor Cars v. Navarro decision last month, the Court majority used statutory canons of construction to reach results contrary to decades of practice under federal labor and employment statutes.   Although the NLRA has, since its inception, been interpreted broadly in its coverage but also in the kinds of “concerted activities for mutual aid and protection” that it protects, Justice Gorsuch in his Epic Systems opinion employs the canon ejusdem generis to conclude that the act of nonunion employees joining together in a class arbitration is not “concerted activity “ within the statute because it is unlike the activities previously referred to in the statute, i.e. “organizing and bargaining collectively.”  The very act of seeking higher wages, or simply seeking wages promised, are bedrock concerted activities that are often a precursor to collective bargaining contracts which is a good indication as to why Congress left the language broad.  The National Labor Relations Board, under both Republican and Democratic administrations, has held that joining a lawsuit or collective action is activity protected by Section 7 of the NLRA for nonunion workers.  The Court’s conclusion here is worse than Lochner, because rather than simply choosing a different interpretation of what language like “due process” means, the Court uses interpretative tools to rewrite both the language of the statute and decades of interpretations and settled expectations about how and why it applies.

Last month, in Encino Motor Cars v. Navarro, the Court, by a 5-4 vote, ruled that “service advisors” who work at car dealerships are exempt from overtime law even though the terms of the statutory exemption apply only to “partsmen, mechanics and those primarily engaged in the selling and servicing of automobiles.”   The plaintiffs argued that a canon of construction called the distributive canon worked in their favor, but the Court rejected that interpretation and held that employers were free to employ the service advisors without paying time and a half for hours over 40 in a work week.  Writing for the Court majority, Justice Clarence Thomas went further and refused to construe the exemption to the overtime rules narrowly, even though numerous prior Supreme Court decisions have done so and that has been the practice of the Department of Labor under both Democratic and Republican administrations.

These statutes – the NLRA enacted in 1935 and the FLSA enacted in 1938 – were part of the New Deal and Congress has never reversed or amended certain core interpretations central in these cases that the Courts have repeatedly reaffirmed  1) that employee protections and employee status are to be broadly construed in favor of coverage; and 2) that “concerted activities” should be broadly construed to encourage the practice and procedure of collective bargaining, which Congress adopted as a policy goal in the preamble to the NLRA in 1935.

True, most of the time when the Court makes a statutory decision there is little movement in Congress to change or amend it.  Congressional response to these cases may show either that Congress is fine with the interpretations, or that Congress is too polarized to get any legislation to the President. Nonunionized workers, as I have argued elsewhere, have diffuse and individualized interests that make it hard for them to mobilize political power to change workplace law for their own benefit.  Tellingly, the only time that federal workplace law has been amended in the last ten years it was because of a Supreme Court decision—Ledbetter v. Goodyear Tire & Rubber Co.—that cut back on the ability of workers to bring pay discrimination claims under Title VII of the Civil Rights Act of 1964.

These cases, Epic Systems and Encino Motorcars, seem to signal the beginning of radical retrenchment of protective labor laws in ways that Congress never intended, using canons of construction that can be chosen at will to suit any particular outcomes.  The interpretive tools give an air of democratic legitimacy to conservative policy choices that run contrary to the will of Congress and the purposes of the statutes. If that is true, then that is a sin worse than Lochner’s.

The May 25 Launch of the GDPR Might Mean New Legal Headaches for American Technology Companies

The issue that United States v. Microsoft was going to address was a narrow one: did Microsoft have to obtain personal data stored by its Irish subsidiary in order to comply with a search warrant issued by a United States court. With the CLOUD Act’s passage, the issue on appeal was mooted by Congress’ explicit requirement that U.S. companies preserve and disclose personal data held overseas. But Microsoft raised an additional issue in the litigation leading up to the Supreme Court granting certiorari in the case which still remains unresolved after the CLOUD Act’s passage: If the Government’s interpretation of the warrant requirement was true, it could lead to companies having to violate the laws of the foreign country to satisfy a U.S. warrant. Ireland argued in its amicus brief in Microsoft that the proper way to seek the information was through the use of the US – Ireland Mutual Legal Assistance Treaty.  Given that Ireland’s Data Protection Act however did not explicitly prevent the disclosure of personal data to U.S. authorities, Microsoft’s conflict of laws question remained merely hypothetical. However, with the implementation of the General Data Protection Regulation (GDPR) this week on May 25, that issue may now arise, and it could have serious consequences for companies that face conflicting legal obligations.

The CLOUD Act requires communication service providers to preserve and disclose data held overseas when served with a valid warrant or other appropriate court order, and only allows a service provider to quash or modify the order if (1) the customer or subscriber is not a U.S. person that is not in the U.S. at the time, and (2) the required disclosure would violate the laws of a foreign government that has entered into an executive agreement with the United States.

We will have to wait and see what those executive agreements look like. While Mutual Legal Assistance Treaties could have been used in Microsoft, the process for obtaining data through this process often takes months (or even years) to complete. What we do know is that without an executive agreement, there almost certainly will be a problem when the GDPR enters into force. Article 48 of the GDPR requires that judgments of non-EU courts requiring the transfer of data to the non-EU countries will only be recognized when a relevant international agreement is in force.

The fact that the data sought may be that of a person in the United States makes no difference to the GDPR; its territorial scope is quite broad. Once a company stores personal data in a data center located in the EU, it is arguably subject to the GDPR and Article 48, even if the data sought pertains to a U.S. person.

This leaves companies with establishments or operations in both the U.S. and the EU in a bind, at least until executive agreements are in place between the U.S. and the EU or its member states. If a company in the U.S. receives a court order to disclose personal data stored in the EU after the GDPR goes into effect, it will have to choose between violating EU law by disclosing it in the absence of an international agreement or potentially finding itself in contempt of a U.S. court without a means to quash the subpoena due to the conflict of law issues.

Any executive agreement would theoretically need to incorporate the protections of the GDPR. Some of the groundwork for that was laid through the signing of the U.S. – EU Umbrella Agreement, which sets conditions for, but does not authorize, data transfers between law enforcement agencies in the U.S. and EU. But those are not, by themselves, sufficient grounds for challenging the court order when the disclosure is for a U.S. person. The CLOUD Act only allows a communications service provider to challenge the order when the data pertains to a non-U.S. person not currently in the United States. If a U.S. Attorney obtains an order for the data of a U.S. person that does not conform to the conditions of the executive agreement, the company still cannot challenge it, even though it would not meet the requirements of Article 48. Given the new penalty structure of the GDPR that authorizes fines of up to four percent of global revenue, many companies in the U.S. may find it cheaper to not upset EU Data Protection Authorities than to risk contempt of court in the United States.