IPPro The Internet Issue 140

Case Report
Significant difficulties remain, however, for complying with such
requirements, to the extent that these cross border agreements are
often based on laws and policies that are obsolete. As an example,
the mutual legal assistance treaties (MLAT) in terms of transnational
criminal cooperation, propose fastidious solutions, which only
guarantee minimum legal security. These demands take time,
which remains a considerable source of frustration for the national
authorities, in view of the lack of efficiency they imply. This is why
the US legal authorities prefer conducting a more effective approach:
that of the national warrants.
This affair undeniably leads to the conclusion that a broader reflexion
must be conducted on the legislation relative to personal data, on an
international scale.
At a time when cyber criminality is increasing, transatlantic
cooperation is more important than ever. Now, without legislative
action carried out on an international scale, a judgement in favour of
the government in the Microsoft case will probably have considerable
effects, according to Professor Théodore Christakis in his study of this
dispute. In this measure, such an outcome would render transatlantic
cooperation very difficult for the authorities in charge of keeping the
peace, governments and undertakings.
A ruling in favour of the American government would have the
consequence of empowering the American authorities to oblige
service providers present in the US to supply data, irrespective
of where it is stored, which would go against the current legal
requirements. In addition, such an outcome would signal to the
European authority an incompatibility between US law and EU
law, which would make them reluctant to authorise the transfer of
European personal data to the US in spite of the privacy shield.
The CLOUD Act
This affair is obviously in echo of the new American legislation called
the Clarifying Lawful Overseas Use of Data (CLOUD) Act voted
by Congress and signed by US President Donald Trump, which
offers a legal framework for the seizing of emails, documents and
electronic communications located in the servers of US companies
and stored abroad.
One of the principal points of the CLOUD Act resides in the new article
121 it introduces in the Stored Communication Act, which requires a
communication service provider to be able to store, backup and even
disclose the contents of any electronic records or communications,
whether they are located on US soil or outside US borders.
The CLOUD Act thus becomes an alternative to the current process
of sharing user information between countries, the MLAT, the
implementation of which is more straightforward and faster to execute.
The major tech firms such as Apple, Facebook or even Google are
delighted with such an initiative. They expressed themselves in an
open letter in February in these terms: “The CLOUD Act encourages
diplomatic dialogue, but also gives the technology sector two distinct
statutory rights to protect consumers and resolve conflicts of law if
they do arise. The legislation provides mechanisms to notify foreign
governments when a legal request implicates their residents, and to
initiate a direct legal challenge when necessary.”
This opinion is, however, far from being shared with the associations
that defend liberties such as the American Civil Liberties Union and
the Electronic Frontier Foundation.
This contested legislation is patently in conflict with the GDPR
and in particular article 48, which, as explained above, deals with
foreign—including American—investigations, by prohibiting the
transfer or disclosure of personal data unless otherwise expressly
agreed internationally.
There is therefore a strong wager to be made that the CLOUD act
will be subject to further discussions at national and international
level. This legislation compiled in the current litigation illustrates the
divergence emerging between Europe and the US concerning the
treatment of requests for confidentiality and data. They represent a
strong position on the part of the overseas government to shed light
on the obsolescence of the current legislation in a digital world.
The firm Dreyfus & associés specialises in the field of IP. We are up
to date on the new developments in European legislation and can
provide you with all the help and advice you require concerning your
IP rights in Europe. IPPro
This legislation compiled in
the current litigation illustrates the
divergence emerging between Europe
and the US concerning the treatment of
requests for confidentiality and data
Nathalie Dreyfus, founder, Dreyfus & associés
17 IPPro The Internet