The recent showdown over renewal of certain provisions of the USA Patriot Act (often called simply the Patriot Act) and the subsequent enactment of the USA Freedom Act have raised a number of questions about the ongoing impact of these laws on data traversing or being stored in the United States. While the new law takes the NSA out of the direct business of maintaining metadata (which includes phone number called, the time and duration of the call, and location information) on all phone calls originating or terminating in the US (with a declared intent of transitioning instead to a program that will allow court-moderated access to phone company data) and reinstates provisions that enable so-called “roving wiretaps” and monitoring of “lone wolves,” it essentially leaves unchanged the underlying laws that govern the US authorities access to data stored in the cloud.
A look back at the history of the Patriot Act and then the specifics of the USA Freedom Act are helpful in evaluating the impact of recent events. First, the Patriot Act.
Rather than create new means of access to data, the Patriot Act primarily streamlined and consolidated various processes that had long been in place—processes similar to those found, it is worth noting, in the laws of many other countries. The Patriot Act made many changes to existing laws, including the Foreign Intelligence Surveillance Act of 1978 (FISA) and theElectronic Communications Privacy Act of 1986 (ECPA), with the stated intent of allowing investigators to “connect the dots” to stop terrorists. From the perspective of a non-US person using a cloud service run by an entity subject to US jurisdiction, perhaps the most significant changes made concerned various thresholds of proof or nexus to gain access to data. These changes broadened the scope of existing authority and lowered the burden on the government to show the need for access. Despite being passed in the wake of 9/11, the Patriot Act’s enactment was not without controversy and among the compromises made was the inclusion of automatic sun-set for some provisions (in the absence of Congressional reauthorization), including the changes to FISA authorizing enhanced data collection and access. These changes, in Section 215 of the Patriot Act, were largely the basis for the telephone metadata collection program disclosed by Edward Snowden, but are also relevant to access to other data. So, with the expiration of the most recent extension to Section 215, the changes it made to FISA were swept away, leaving the prior provisions of the underlying statutes in place.
As noted above, the USA Freedom Act extended the effectiveness of the otherwise sun-setting provisions of the Patriot Act, but with notable changes to the collection of phone metadata. The USA Freedom Act, which passed the House of Representatives prior to the expiration of the Patriot Act provisions it replaces, was drafted with the intent of amending and extending the expiring programs. Instead, the relevant Patriot Act provision sun-set before the Senate passed USA Freedom and, not wanting to risk passage or delay implementation of the collection programs, the Senate passed an unamended version of USA Freedom. As a result, USA Freedom does not expressly reinstate the changes made by Section 215 of the Patriot Act, but instead purports to amend the law as it was in place prior to expiration. Therefore, there is some murkiness as to exactly what the new law is, but either way, the underlying basic laws that existed prior to the Patriot Act remain essentially in place and provide for access to information (including data in cloud services) subject to various procedures and levels of review.
The broad rule under the USA Freedom Act is the same as that under the Patriot Act; the government may make requests from the private sector for the production of “tangible things” (including books, records, papers, documents, and other items) related to foreign intelligence, counterterrorism, and criminal investigations. The USA Freedom Act attempts to strengthen judicial oversight of these requests, making modest changes to the Foreign Intelligence Surveillance Court and significantly prevents the “bulk” collection of records by requiring enhanced specificity in requests. Despite a great deal of discussion in the press, the USA Freedom Act does not appear to create new duties on the private sector to comply with government requests (though the existing duties remain and are substantial). Congress did however grant new protections to the recipients of access requests, including a new right to consult with an attorney before responding to the confidential request.
In any case, with or without the changes in the USA Freedom Act—or with or without the original changes made by the Patriot Act—the US is not the only government with laws granting law enforcement access to data (including records held by cloud service providers). Indeed, other countries have such laws (or take such actions)—sometimes with less or no process and limited review. France, the United Kingdom, and Canada are among the jurisdictions with such laws, many of which have implemented changes that expand their scope. To be clear, there is no suggestion here that these laws are all the same. The salient point is that the world is full of jurisdictions with laws that afford access to records in cloud storage (not to mention jurisdictions that effectively offer no practical protection against such access). Indeed, setting aside laws and lawful government action, private data—whether stored in a shared cloud or using local storage —is likely far more at risk of unauthorized access from criminal acts and covert state actors (acting both domestically and internationally) than from judicially monitored access grounded in the USA Freedom Act.
As a result, those investigating data protection issues arising from the use of cloud services might be well advised to consider how encryption with customer-held keys might address all of these issues. While governments with jurisdiction over the cloud customer may demand access to corporate records whether they are encrypted or not, the adoption of effective, well managed encryption technology essentially eliminates concerns about other access. And, as the US Office of Personnel Management has been made painfully aware in the past weeks—encryption is something that data subjects (or at least those out for their votes) have come to expect.