Stop the Cloud Act
Agreement would circumvent Fourth Amendment
Time is ticking on Congress’ ability to intervene in an executive agreement between the U.S. and the U.K. known as the Cloud Act Agreement, which threatens to effectively void Fourth Amendment protections for Americans.
The deal, agreed on in October by U.S. Attorney General William Barr and British Home Secretary Priti Patel, allows American and British law enforcement agencies to, in the words of the U.S. Department of Justice, “demand electronic data regarding serious crime ... directly from tech companies based in the other country, without legal barriers.”
Simply put, the agreement will allow the U.S. and U.K. governments to bypass the legal processes of the other’s country to search and seize digital data. The Cloud Act Agreement is a tool of expediency, not proper investigation.
The agreement could be disastrous for the privacy rights of citizens in both countries, but the ways in which the deal circumvents the Fourth Amendment of the U.S. Constitution should send chills up the spine of every American.
British police would be given extraordinary powers to investigate American citizens. People could be placed under surveillance without notification. Wiretaps could be placed without meeting the more rigorous requirements of U.S. law. And prior judicial authorization, an important guarantee of procedural fairness in the U.S., will not be required for any of these acts.
The agreement also permits the U.K. to share information it collects about Americans with the U.S. government, so long as that information meets the vague standard of relating “to significant harm, or the threat thereof, to the United States or U.S. persons.” It is hard to see how the Cloud Act Agreement serves as anything other than a backdoor around the Fourth Amendment.
The Fourth Amendment was included in the Bill of Rights largely because the British military had unjustly intruded the homes of colonists, seizing items without just cause. The Cloud Act Agreement ignores that history entirely. The deal could also be expanded to accommodate more countries. The U.S. has long-standing intelligence ties with Australia, Canada and New Zealand, which, with the U.S. and U.K., form the “Five Eyes.” Who’s to say those countries won’t also receive expansive powers to investigate Americans?
Congress is the only roadblock to the Cloud Act Agreement’s implementation. Lawmakers have 180 days from the deal’s signing — a deadline of March 31 — to enact a joint resolution that would prevent it from being enacted.
Every member of Congress takes an oath to support and defend the U.S. Constitution. That oath should be honored and the U.S.-U.K. Cloud Act Agreement should be stopped.