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Clifford Chance

Regulatory Investigations and Financial Crime Insights

US Department of Justice CLOUD Act White Paper

The United States Department of Justice (DOJ) has released a White Paper entitled "Promoting Public Safety, Privacy, and the Rule of Law Around the World: The Purpose and Impact of the CLOUD Act" (White Paper), which addresses a so-far unused aspect of the CLOUD Act – foreign executive agreements for obtaining data across borders.

The CLOUD Act was passed in response to a judicial decision limiting DOJ's ability to access data held abroad, and addresses two issues. First, it authorized US law enforcement agencies to issue subpoenas or request search warrants to obtain data stored outside the US from US-based service providers. Second, it established a framework for foreign governments to enter into executive agreements with the US to facilitate the cross-border transfer of data for law enforcement purposes. The White Paper (and attached FAQs) is focused primarily on the latter issue.

This issue remains a hypothetical concern for corporations, as DOJ to-date has not publicly announced that it has entered into any executive agreements, but DOJ's decision to publish the White Paper may signal that this authority will be used in the future. As such, corporations that may be subject to the CLOUD Act should ensure that they understand how it may apply to data held overseas by US providers.