With the focus this summer on government collection of electronic data (in case you missed it, see here, here, and here), an important question went unanswered – what rights do individuals have to challenge government access to their data? We set out to answer that question in the fourth installment in Hogan Lovells’ White Paper series examining government access to data held by service providers, Individual Rights to Challenge Government Access to Data in the Cloud, authored by Christopher Wolf, Bret Cohen, and James Denvil. In the White Paper, we compared the ability of citizens and non-citizens to challenge government access to data in the U.S., France, Germany, the UK, and Australia.
Our study found that each of the countries surveyed for the White Paper provides citizens and non-citizens alike with the ability to challenge government access to data they store with a Cloud service provider during the course of typical criminal and administrative investigations, as well as remedies if they suffer harm from unlawful government access.
The right of redress, however, appears strongest in the United States, as it is the only country among those surveyed that provides for all of the following: 1) minimum statutory damages for the government’s unlawful access to Cloud data; 2) the ability to sue government officials in their individual capacity for unlawfully accessing Cloud data; and 3) the ability to challenge and appeal decisions regarding placement on a no-fly list. The United States is also the only country that gives courts the authority to require a government agency to initiate a disciplinary proceeding against a government employee based on a suspicion that the employee unlawfully accessed Cloud data.
While there is current controversy over national security access to data held by Cloud providers, those policy challenges – and the ability to challenge government national security surveillance in each of the in-scope countries – are beyond the scope of this White Paper. Still, with respect to the United States, we do note remedies available to individuals when the government conducts illegal national security surveillance.
This is the latest in our series of White Papers that includes the following:
- An Analysis of Service Provider Transparency Reports on Government Requests for Data, comparing the number of government access requests to Cloud service providers who have published those numbers;
- A Sober Look at National Security Access to Data in the Cloud, comparing the mechanisms international governments can use to access sensitive foreign intelligence information; and
- A Global Reality: Governmental Access to Data in the Cloud, comparing the mechanisms international governments can use to access Cloud data during the course of ordinary law enforcement activities.