By now you probably have learned the CLOUD Act (Clarifying Lawful Overseas Use of Data), sneakily tucked into a 2300-page omnibus spending bill, was signed into law by President Trump. The law, by all accounts, is a privacy-stomping disaster. The prevailing question that I and many other privacy-liking folk have is: “Why?” And the question can be invoked in several instances...
To wit: Why was such an important topic not treated as a stand-alone statute? Why was such a sensitive piece of legislation decided in backrooms? Why was it surreptitiously snuck into a massive piece of unrelated legislation where it could not be subjected to rigorous debate due a matter of this importance? Why was the opposition (Democrats) so eager to cede more executive power to a president they loathe and have been constantly berating? Why did the tech giants rollover against their customers' wishes?
As we get to answering some of the “Whys,” a little background might be helpful. We have learned from the net neutrality wars that decisions are based on power politics and so depend on which party is in power. So, despite storms of protest from activists, net neutrality was doomed the day Donald Trump was elected President. All the machinations and the handwringing on the world from the Left wasn’t going to forestall the inevitable. The anti-regulation Republicans were going to tear apart anything that smelled of “big government” - public sentiment be damned.
What does this have to do with the passage of the CLOUD Act? Government spending and politics are at the heart of this. Very simply, the anti-big-spending GOP wasn’t going to swallow a $1.2 trillion spending bill unless it got something in return. What it got was more power for the President in the executive action provision, as well as more intrusive government surveillance and subpoena powers that the Right usually favors.
The trade-off? The big-government, big-spending, Democrats got what they never thought they could from a GOP-controlled Congress - a massive spending budget. This is especially in light of the Obama administration’s spending sprees, which added $10 trillion to an already bloated national debt in the previous years. The result answers some of the “Whys” as to why the Democrats would go along with giving more power to a man they despise and why they would roll over, cut a backroom deal and effectively sell-out their constituency.
The “Why” regarding the tech industry embracing the legislation is a bit of a headscratcher, but in my opinion, it has to do with the all-important bottom line - though it is couched rather nicely in corporate-speak. The cloud computing giants Apple, Facebook, Google, Oath (formerly AOL), and Microsoft, claim that it represents an improvement over the regulation which proceeded it. Which isn’t saying much, since the preceding law was nearly 30-years old - way before there was a Cloud. Since February they have been on the record saying that the Act would better protect customers.
These tech giants contend the law would standardize human rights and attendant privacy across borders and allow the US government to enter into modern bilateral agreements with other nations. Is it possible that the hope of the tech titans is that, in homogenizing the rules, they could avoid costly litigation? Outfits like the EFF disagree, maintaining instead that the President will now have powers to arbitrarily make willy-nilly unilateral decisions.
What’s more, foreign governments will now be able to make demands for information that the U.S. is storing in America. David Ruiz from the EFF explains:
"U.S. and foreign police will have new mechanisms to seize data across the globe... Your private emails, your online chats, your Facebook, Google, Flickr photos, your Snapchat videos, your private lives online, your moments shared digitally between only those you trust, will be open to foreign law enforcement without a warrant and with few restrictions on using and sharing your information. Because of this failure, US laws will be bypassed on US soil."
Does this sound like a win for privacy - or is it another instance of politics trumping privacy?
Image credit: By Rena Schild/Shuterstock.