Regulating law enforcement access to electronic evidence across borders: the United States approach

ABSTRACT Several initiatives are underway to address the jurisdictional and conflicts-of-law challenges triggered by the ubiquity of cloud data storage. By introducing a new approach for international cooperation through the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), the United States of America (US) leads the cross-border data access reform agenda. The US approach deserves closer scrutiny, given its impact in shaping international standards that govern law enforcement access to cloud data, as well as its influence on other impending reform initiatives. While a number of blogs and reports have been written about the CLOUD Act, a comprehensive academic analysis appears to be lacking. This article addresses this gap by examining the extraterritorial reach of the US government’s law enforcement powers, and conversely the powers of foreign governments to obtain data held by US-based service providers. Most importantly, this article scrutinises the adequacy of the substantive and procedural safeguards stipulated under the CLOUD Act.