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What is the CLOUD Act? Clarifying Lawful Overseas Use of Data
1. Applies to information anywhere in the world if data
is in the "possession, custody or control" of the
recipient of the warrant.
2. A recipient can seek to quash the subpoena if it can
What are main points of show that the affected individual is not a United States
CLOUD Act? person and that the required disclosure of that
individual's data would violate the laws of a "qualifying
foreign government".
3. Third, requires courts considering a motion to quash
to conduct a comity analysis.
Those who have signed an executive agreement with
the United States to cooperate in cross-border data
What is a "qualifying access. To qualify, a foreign government would need
foreign government" the approval of the State Department and the U.S.
under the CLOUD Act? Department of Justice. They would also have to agree
to adhere to significant substantive and procedural
privacy and civil liberties protections.
, 1. Location of the target
What factors are
2. Nationalities involved
considered in a comity
3. Alternative avenues to the data
analysis under the CLOUD
4. Interests of the United States
Act?
5. Interests of the foreign sovereign
1. Council of Europe
2. European Court of Human Rights
What are the 6 European 3. European Parliament
Institutions 4. European Commission
5. European Council
6. European Court of Justice
1. The Council of Europe Convention for the
Protection of Individuals with Regard to the Automatic
Processing of Personal Data of 1981 (CoE Convention)
What is the legislative 2. EU Data Protection Directive (95/46/EC)
Framework for EU 3. EU Directive on Privacy and Electronic
Privacy? Communications (2002/58/EC), as amended
4. EU Directive on Electronic Commerce (2000/31/EC)
5. European data retention regimes
6. GDPR
1. Fairness and lawfulness
2. Purpose limitation
What are the 6 data 3. Proportionality
protection principles 4. Accuracy
5. Storage limitation
6. Integrity and confidentiality
1. Consent
2. Contractual necessity
What are the 5 Legitimate
3. Legal obligation, vital interests, public interests
Processing Criteria?
4. Legitimate interests
5. Special categories of processing