SC Attorney General Alan Wilson and Bipartisan Coalition Urge Congress to Pass the CLOUD Act

(COLUMBIA, S.C.) – February 21, 2018 South Carolina Attorney General Alan Wilson and a bipartisan group of attorneys general are asking Congress to pass a law to prevent criminals from hiding evidence on overseas computer servers. In a letter sponsored by Vermont Attorney General T.J. Donovan and Utah Attorney General Sean Reyes, and signed by the attorneys general of 34 other States, the National Association of Attorneys General today urged Congress to pass the Clarify Lawful Overseas Use of Data (“CLOUD”) Act. The CLOUD Act would update and amend several provisions of the Stored Communications Act (“SCA”).

Under the SCA, a law enforcement agency may obtain a warrant to search an individual’s email or other online account if a reviewing court finds probable cause that the account contains evidence of a crime. Once issued, an SCA warrant is served on a service provider who must then collect the requested data and provide it to law enforcement. State and local law enforcement agencies routinely use SCA warrants to investigate all manner of local crime, from drug trafficking to murder to child sexual exploitation. Recently, however, some service providers have argued that an SCA warrant cannot be enforced when the data being sought is stored on a foreign server, even if the provider and the customer who created the data are in the United States and that data can be accessed from the United States. The providers and others have argued that requiring compliance with an SCA warrant in this situation would be an extraterritorial application of a domestic law and would raise significant privacy and international comity concerns. This dispute has spawned litigation across the country, including the case of United States v. Microsoft, which is currently pending in the United States Supreme Court. Vermont Attorney General Donovan previously filed an amicus brief in that case on behalf of 35 states and the Commonwealth of Puerto Rico.

“It’s just common sense that if a criminal is in the United States and so is the computer service provider he uses, he shouldn’t be able to hide evidence of serious crimes just by storing that evidence on a foreign computer server,” Attorney General Wilson said. “This law is about holding criminals accountable. The CLOUD Act is a tool law enforcement needs to be able to keep up with worldwide technology.”

Today’s letter urges Congress to pass the CLOUD Act as “an important step toward resolving this dispute.” The CLOUD Act “both confirms law enforcement’s ability to obtain probable-caused based warrants for electronic communications stored abroad and creates a clear avenue for service providers to challenge an SCA warrant that targets a foreign person and which would require a provider to violate foreign law. The Act also creates incentives for our foreign partners to enter into bilateral agreements that will facilitate cross-border criminal investigations, while ensuring that privacy and civil liberties are respected.”

Today’s letter was joined by the attorneys general of Vermont, Utah, Alabama, Alaska, Colorado, Delaware, Florida, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia, Washington, Wisconsin, and Wyoming.

You can read the letter to Congress here.

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