The United States has bilateral CLOUD Act agreements with the United Kingdom and Australia, and Canada continues to also negotiate an agreement with the United States.1 CLOUD agreements are meant to alleviate some of the challenges attributed to the MLAT process, namely that MLATs can be ponderous with the result being that investigators have difficulties obtaining information from communication providers in a manner deemed timely.
Investigators must conform with their domestic legal requirements and, with CLOUD agreements in place, can serve orders directly on bilateral partners’ communications and electronic service providers. Orders cannot target the domestic residents of a targeted country (i.e., the UK government could not target a US resident or person, and vice versa). Demands also cannot interfere with fundamental rights, such as freedom of speech. 2
A recent report from Lawfare unpacks the November 2024 report that was produced to explain how the UK and USA governments actually used the powers under their bilateral agreement. It showcases that, so far, the UK government has used this substantially to facilitate wiretap requests, with the UK issuing,
… 20,142 requests to U.S. service providers under the agreement. Over 99.8 percent of those (20,105) were issued under the Investigatory Powers Act, and were for the most part wiretap orders, and fewer than 0.2 percent were overseas production orders for stored communications data (37).
By way of contrast, the “United States made 63 requests to U.K. providers between Oct. 3, 2022, and Oct. 15, 2024. All but one request was for stored information.” Challenges in getting UK providers to respond to US CLOUD Act requests, and American complaints about this, may cause the UK government to “amend the data protection law to remove any doubt about the legality of honoring CLOUD Act requests.”
It will be interesting to further assess how CLOUD Acts operate, in practice, at a time when there is public analysis of how the USA-Australia agreement has been put into effect.
- In Canada, the Canadian Bar Association noted in November 2024 that new enabling legislation may be required, including reforms of privacy legislation to authorize providers’ disclosure of information to American investigators. ↩︎
- Debates continue about whether protections built into these agreements are sufficient. ↩︎
Excited Pixels 