Hogan Lovells has published a White Paper demonstrating that the limitations applied to U.S. law enforcement access to data stored in the Cloud during national security and foreign intelligence investigation in many cases surpass restrictions applied during similar investigations in other countries. A Sober Look at National Security Access to Data in the Cloud was written by Christopher Wolf, co-director of Hogan Lovells’ Privacy and Information Management Practice based out of Washington, D.C., and Winston Maxwell, a partner in Hogan Lovells’ Paris office specializing in media, communications, and data protection. The White Paper was released and discussed by Messrs. Maxwell and Wolf at a program of the OpenForum Academy in Brussels.
The White Paper follows Wolf and Maxwell’s 2012 White Paper, A Global Reality: Governmental Access to Data in the Cloud, which debunked the oft-repeated misconception of critics of the U.S. government that the 2001 USA PATRIOT Act gives U.S. law enforcement greater powers of access to data stored with a third-party Cloud computing service than governments elsewhere. Most recently, these critics have focused their attention on another law, Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), enacted under the FISA Amendments Act of 2008 and codified at 50 U.S.C. § 1881a (frequently referred to just as Section 1881a), which sets out rules governing the surveillance and collection of evidence about persons suspected of being part of a terrorist organization or acting as spies for foreign governments. One member of the European Parliament is quoted as saying recently that FISA allows the US government to “browse the cloud without a warrant.”
The White Paper, which compares Section 1881a to procedures in similar investigations in Australia, Canada, France, Germany, and the United Kingdom, concludes that Section 1881a imposes at least as much, if not more, due process and oversight on foreign intelligence surveillance than other the other countries afford in similar circumstances. Section 1881a contains codified rules and procedures governing such surveillance — particularly the limitation to the investigation of statutorily-defined “foreign intelligence information,” judicial oversight, and legislative oversight — that impose detailed restrictions on law enforcement officers.
Incongruously, some commentators compare Section 1881a to normal criminal investigations in Europe. That is comparing apples to oranges. Because countries generally provide greater and more visibly protective due process protections in standard criminal proceedings than when conducting foreign intelligence surveillance, it is misleading to compare standard criminal investigative procedures in Europe with American foreign intelligence procedures under Section 1881a.