Omnibus includes search-and-seize provision

The omnibus spending bill released Wednesday night includes a provision to allow law enforcement to search and seize data stored overseas, potentially canceling a case now before the Supreme Court.  

The bipartisan Clarifying Lawful Overseas Use of Data, or CLOUD, Act, led by Rep. Doug Collins (R-Ga.) in the House and Sen. Orrin Hatch (R-Utah) in the Senate, allows investigators to obtain electronic data stored anywhere in the world by technology firms.

Whether that data can be subjected to a warrant was the question before the high court last month in United States v. Microsoft. 

The case centered on whether Microsoft could legally ignore a federal warrant for a customer’s emails stored in Dublin, Ireland. Microsoft argued law enforcement lacked the power under the Stored Communications Act (SCA) to search and seize data outside the U.S.

During arguments, Justice Sonia Sotomayor questioned whether the court should just wait for Congress to act given the bipartisan proposal’s existence. The CLOUD Act would also make it easier for U.S. officials to enter into formal agreements with other nations for cross-border investigative requests for digital evidence.

Sotomayor may have gotten her answer. 

In a statement, Collins welcomed the inclusion of the CLOUD Act in the spending bill late Wednesday, calling it a thoughtful solution to enable law enforcement to combat crime and terrorism in the digital age.

“The 21st-century never fails to bring us new challenges, and it’s the job of Congress — not the courts — to deliver balanced updates like the CLOUD Act to our statutes,” he said.

Microsoft, which argued the issue should be resolved by Congress instead of the courts, called the statute a good compromise.

“It also responds directly to the needs of foreign governments frustrated about their inability to investigate crimes in their own countries,” Microsoft President Brad Smith said in a statement on Wednesday.

“The CLOUD Act addresses all of this, while ensuring appropriate protections for privacy and human rights,” he said. “And it gives tech companies like Microsoft the ability to stand up for the privacy rights of our customers around the world.”

Smith said the bill includes a strong statement about the importance of preventing governments from using the new law to require U.S. companies create backdoors around encryption,  codifying an important privacy safeguard.

“Once passed, the U.S. Government will need to move quickly to establish with other likeminded countries new international agreements, similar to what has already been negotiated between the U.S. and the United Kingdom,” he said.

–This report was updated on March 22 at 10:53 a.m.