Hogan Lovells has published Demystifying the U.S. CLOUD Act, a detailed analysis of the impact of the Clarifying Lawful Overseas Use of Data Act (CLOUD Act) on non-U.S. businesses and individuals who use cloud storage solutions.
In a recent column for The New York Times, Nils Muiznieks, the top human rights official for the Council of Europe, warned that recent surveillance laws in Europe undermine fundamental rights for European citizens. Plus, an October 29, 2015, resolution of the European Parliament complains of an “obvious downward spiral” resulting from mass surveillance laws in the U.S. and Europe. That certain European countries have laws permitting mass surveillance is not news to lawyers who follow the matter. In a 2012 whitepaper, we highlighted the broad and sometimes unsupervised powers of intelligence agencies of certain European governments. As Muiznieks’s column states, intelligence agencies are getting more surveillance power, not less. France’s July 2015 surveillance law permits intelligence agencies to scan metadata of all citizens in order to detect suspicious patterns. Other European countries are also broadening surveillance powers to protect against terrorism.
Adopted by Parliament in June 2015, France’s new surveillance law was ratified by the President on July 24, 2015 and published in France’s Official Journal on July 26, 2015. France’s Constitutional Court Court reviewed the law prior to its ratification and issued an opinion on July 23, 2015 requiring deletion of certain measures that the Court felt were incompatible with constitutional principles. However a number of observers were surprised that the Court validated a provision of the law allowing intelligence agencies to deploy algorithms to analyze traffic and log data to detect potential terrorist threats. To some lawyers, analyzing the traffic and log data of the entire population of France violates the proportionality principle set forth in the European Court of Justice’s Digital Rights Ireland decision.
Two federal appeals courts recently published significant opinions that redefine the scope of government access to phone records, setting the stage for a complex debate in Congress over the future of bulk data collection under the Patriot Act. The pair of decisions, along with the outcome of a legislative debate that has roiled Congress this month, will define the permissible boundaries for government surveillance and contribute to the ongoing debate over government access to digital information in all forms. We summarize both decisions as well as the congressional debate below.
The Intelligence and Security Committee of the UK Parliament today published its much anticipated report into the secret capabilities of the UK intelligence and security agencies, in particular their powers to intercept electronic communications and acquire communications data.The key recommendation of the report is that the UK’s current laws governing the activities of the agencies be replaced in their entirety by a new, transparent, legal framework.
Public atrocities always attract some kind of political reaction. Generally, the more brutal the atrocity, the harsher the reaction. It is understandable from the perspective of political responsibility. So when defenceless people are mercilessly attacked by gunmen as punishment for their satirical views, a very visible reaction is to be expected. However, political reactions to grave situations need not only visibility but measured thinking and careful decision-making. The reaction to a violent and criminal act can often have more far-reaching implications than the act itself, leading to an escalation of violence. At the same time, doing nothing to protect citizens from harm is not a responsible option. As with many political decisions, securing public safety is a balancing exercise of robustness and restraint.
Hogan Lovells today published an update to the White Paper A Sober Look at National Security Access to Data in the Cloud, which compares national security access to data stored with Cloud service providers in a number of countries. The White Paper adds analyses of the laws of Brazil, Italy, and Spain, and reflects the April 2014 opinion of the European Court of Justice invalidating the EU Data Retention Directive. The updated paper now compares the national security access laws of the United States, Australia, Brazil, Canada, France, Germany, Italy, Spain, and the United Kingdom.
At the Privacy and Civil Liberties Oversight Board hearing yesterday in Washington, D.C., Hogan Lovells partner and privacy practice lead Christopher Wolf spoke on the issue of privacy and government surveillance and provided a transnational perspective on legal regimes that regulate government access to data. In 2012 and 2013, Hogan Lovells published four White Papers (available here, here, here, and here) on government access to data in the cloud. The findings of the national security access White Paper, A Sober Look at National Security Access to Data in the Cloud, were a focal point of yesterday’s discussion.
On Monday, a European Parliament Inquiry established to investigate the recent U.S. National Security Agency surveillance revelations indicated that its final report would recommend suspension of the popular EU-U.S. Safe Harbor Framework.
Recent work done by Hogan Lovells on EU national security access to data shows that the American intelligence-gathering framework imposes at least as much, if not more, due process and oversight on foreign intelligence surveillance than other countries afford in similar circumstances. In a detailed analysis of the misconceptions related to U.S. government intelligence-gathering for the IAPP Privacy Perspectives blog, Chis Wolf outlines “A Sober Look at National Security Access to Data in the Cloud,” a recently published Hogan Lovells white paper comparing U.S. intelligence-gathering under the FISA Amendments Act to the practices of five European countries.
On February 26, the U.S. Supreme Court ruled in Clapper v. Amnesty International that a group of U.S. citizens and U.S.-based organizations did not have standing to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (FISA) that allows the U.S. Government to monitor the electronic communications of non-U.S. persons located on […]