Responsibility Deflected, The CLOUD Act Passes

By David Ruiz

“People deserve the right to a better process.”

Those are the words of Jim McGovern, representative for Massachusetts and member of the House of Representatives Committee on Rules, when, after 8:00 PM EST on Wednesday, he and his colleagues were handed a 2,232-page bill to review and approve for a floor vote by the next morning.

In the final pages of the bill—meant only to appropriate future government spending—lawmakers snuck in a separate piece of legislation that made no mention of funds, salaries, or budget cuts. Instead, this final, tacked-on piece of legislation will erode privacy protections around the globe.

This bill is the CLOUD Act. It was never reviewed or marked up by any committee in either the House or the Senate. It never received a hearing. It was robbed of a stand-alone floor vote because Congressional leadership decided, behind closed doors, to attach this un-vetted, unrelated data bill to the $1.3 trillion government spending bill. Congress has a professional responsibility to listen to the American people’s concerns, to represent their constituents, and to debate the merits and concerns of this proposal amongst themselves, and this week, they failed.

On Thursday, the House approved the omnibus government spending bill, with the CLOUD Act attached, in a 256-167 vote. The Senate followed up late that night with a 65-32 vote in favor. All the bill requires now is the president’s signature.

Make no mistake—you spoke up. You emailed your representatives. You told them to protect privacy and to reject the CLOUD Act, including any efforts to attach it to must-pass spending bills. You did your part. It is Congressional leadership—negotiating behind closed doors—who failed.

Because of this failure, U.S. and foreign police will have new mechanisms to seize data across the globe. Because of this failure, your private emails, your online chats, your Facebook, Google, Flickr photos, your Snapchat videos, your private lives online, your moments shared digitally between only those you trust, will be open to foreign law enforcement without a warrant and with few restrictions on using and sharing your information. Because of this failure, U.S. laws will be bypassed on U.S. soil.

As we wrote before, the CLOUD Act is a far-reaching, privacy-upending piece of legislation that will:

  • Enable foreign police to collect and wiretap people’s communications from U.S. companies, without obtaining a U.S. warrant.
  • Allow foreign nations to demand personal data stored in the United States, without prior review by a judge.
  • Allow the U.S. president to enter “executive agreements” that empower police in foreign nations that have weaker privacy laws than the United States to seize data in the United States while ignoring U.S. privacy laws.
  • Allow foreign police to collect someone’s data without notifying them about it.
  • Empower U.S. police to grab any data, regardless if it’s a U.S. person’s or not, no matter where it is stored.

And, as we wrote before, this is how the CLOUD Act could work in practice:

London investigators want the private Slack messages of a Londoner they suspect of bank fraud. The London police could go directly to Slack, a U.S. company, to request and collect those messages. The London police would not necessarily need prior judicial review for this request. The London police would not be required to notify U.S. law enforcement about this request. The London police would not need a probable cause warrant for this collection.

Predictably, in this request, the London police might also collect Slack messages written by U.S. persons communicating with the Londoner suspected of bank fraud. Those messages could be read, stored, and potentially shared, all without the U.S. person knowing about it. Those messages, if shared with U.S. law enforcement, could be used to criminally charge the U.S. person in a U.S. court, even though a warrant was never issued.

This bill has large privacy implications both in the U.S. and abroad. It was never given the attention it deserved in Congress.

As Rep. McGovern said, the people deserve the right to a better process.

David Ruiz is a writer covering NSA surveillance and federal surveillance policy for EFF’s activism team, where this article first appeared. Before joining EFF, David worked for several years as a journalist, primarily covering internal legal affairs inside Silicon Valley’s emerging startups and steadfast stalwarts. He wrote about the lack of diversity in trial teams used by big tech companies, he reported on the inner workings of Uber’s burdened legal department, and he covered corporate responses to federal regulation and litigation, including Google’s battle with the Department of Labor regarding an audit for employee compensation data.

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15 Comments on "Responsibility Deflected, The CLOUD Act Passes"

  1. “… the CLOUD Act is a far-reaching, privacy-upending piece of legislation that will: Enable foreign police to collect and wiretap people’s communications from U.S. companies, without obtaining a U.S. warrant. Allow foreign nations to demand personal data stored in the United States, without prior review by a judge. Allow the U.S. president to enter “executive agreements” that empower police in foreign nations that have weaker privacy laws than the United States to seize data in the United States while ignoring U.S. privacy laws. Allow foreign police to collect someone’s data without notifying them about it. Empower U.S. police to grab any data, regardless if it’s a U.S. person’s or not, no matter where it is stored.”

    This is going to be hard for a lot of you to understand, so please read it carefully.

    The US Constitution is a COMPACT between the states, a CONTRACT between the American people and their general (federal) representatives. It is actually not only the SUPREME Law of this nation, but is the SUPREME contract for all who serve within our governments – elected, hired, contracted, etc.

    All authority that those who serve within our governments use is DELEGATED FROM US TO THE STATES, with a part of that delegated state authority then delegated FROM THE STATES TO THE FEDERAL GOVERNMENT.

    No person who serves within our governments have any power themselves, instead they are allowed to use the authority (power) that was delegated to the three different branches and to named in writing Offices within a branch.

    The Bill of Rights lists things that were NOT delegated to either government – state or federal – but was kept (retained) by the people. Here is the Preamble to the Bill of Rights which makes it clear that restrictions and forbiddens are on those that serve within our governments;

    “Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.

    THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

    Those that serve within our governments have NO LAWFUL authority over those things. They took an Oath that they are REQUIRED to KEEP if they want to retain the position and not be charged with the crimes they commit – felonies and Perjury. Add to them Maladministration, Misadministration, etc and their is few that would actually be able to NOT be put behind bars if the American people had not allowed themselves to be “dumbed down” over decades.

    Most people understand that when one breaks a contract there are repercussions. Today, most do not even know that the Constitutions are Law, let alone that they are contracts.

    Now understand that the document that created our Constitutional Republic also put into writing exactly what they may spend money on, and at times, for how long that money may be used.

    The written list of objects on which Congress may appropriate funds:
    — Immigration office (Art. I, §8, cl.4)
    — Mint (Art. I, §8, cl. 5)
    — Attorney General (Art. I, §8, cl. 6)
    — Post Offices and Postal roads (Art. I, §8, cl. 7)
    — Patent and Copyright Office (Art. I, §8, cl. 8)
    — Federal Courts (Art. I, §8, cl. 9)
    — Military (Art. I, §8, Clause 11-16) (only for two years After a Declaration of war by the Congress)
    — the Civil List (Art. I, §6, Clause 1)
    — [and other objects listed in various other Articles, Sections, and Clauses such as Article 2 regarding Treaties]

    If it is NOT found in that list, those who serve within the federal government legislature have NO LAWFUL authority to spend money there. Unfortunately the list of where there is NO delegated authority to spend money is longer then the list where they are ALLOWED to spend it. That action of spending money with NO LAWFUL authority to do so, is a crime called Misappropriation of Funds.

    Now lets go on to the Cloud Act. Where do those that serve within the legislature have any authority to do so? They do not. Before someone says “sue them” or “take them to court”, it is important to understand that they are OUR representatives, our state representatives, and OUR employees.

    James Madison, drafter of the Constitution, 4th US President, commonly referred to as the “Father of the Constitution”, about the budget in Fed 58: “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of the government… This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutatory measure.”

    Virginia Representative Alexander White to James Madison: “The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not let out of their hands.”
    Madison confirmed this reason to V. Rep. White with these words: “The principle reason why the Constitution had made this distinction was, because they (the House) were chosen by the people, and supposed to be the best acquainted with their (the peoples) interest and ability.”

    Also it is important that one understand that the US Constitution REQUIRES in writing that ALL (every single bit) LEGISLATION of any type be in “Pursuance thereof” the US Constitution. If it is NOT constitutional, it is NOT lawful and binding on the American people, nor is it binding on our nation. Their (those who serve within our governments) authority is spelled out in writing for a reason, so that the American people can hold those who serve within our governments accountable for their actions without hesitation because ALL can easily verify that by reading the contract.

    • Well, that’s some food for thought alright! Far as I know, the Constitution contains a “supremacy clause”. So, in other words, all laws and treaties which are in conflict with the Constitution are null and void. Such laws can and should be set aside, because they don’t have the force of law.

      That said, many people are of the belief that a coup d’etat happened some decades ago, wherein our government, as we know it, ceased to exist. It was replaced by the “United States Corporation”, of course with none of us being told. (Constitution effectively shredded!)

      Here’s a grand idea: Sue the government. Not for money, but to FORCE them to admit, yea or nay, whether the Constitution still exists in fact. And if not, at what juncture did it cease to exist, and under what authority is our federal government now operating?

    • Our founders stated if any law is not found in the Constitution it is null and void, no exceptions…
      We are the rightful owners of the Constitution, not to overthrow it , but to overthrow those traitors who want to overthrow it…

      With the overthrow of this and if congress, courts, presidents continue to allow this treason they all are in contempt of the constitution are traitors and must be dealt with.

      Per Constitutional law we are mandated to file all grevences against these illegal laws,
      explain the change and follow through then face treason charges, and be given due process per the crimes committed…

      It is up to we the people to deal with this for we can not allow this to continue…

      • Richard Olsen | March 24, 2018 at 1:42 pm | Reply

        Actually, the constitution went out the window and into the dustbin of useless documents in 1803 with a decision while John Marshall was Chief Justice. The court, at that time, with NO constitutional authority to do so whatever, took upon itself the authority to decide whether a law was constitutional or not. READ Article III, sections one through four! Nowhere is that power granted to the Supreme Court! The attorneys thus took control of the government, and no one, especially congress apparently, made any effort to check the usurpation of the powers of congress; nor did the legislatures or governors of the united nation states of the republic. See the case Marbury v. Madison for the context of the matter that produced the usurpation that has since morphed into the “power” of the Supreme Court to “interpret” the constitution. Having the “power” to interpret the constitution, when carried to its only possible conclusion, means that selection and confirmation to a seat on that court confers upon the new “justice” clairvoyance. Mystically, the members of the court are endowed with the ability to ascertain what was in the minds of the authors and members of the convention that produced the document. Fascinating, isn’t it? Actually, what it produced is just what we now see; political jockeying to seat people on the Supreme Court who give evidence of having the political persuasion for whatever agenda the dominant political party may have at any given moment. Further, it means that the constitution, and all other laws, statutes, executive orders, regulations, or almost anything else, are whatever the government says they are at any given moment. What this really means is, we, the people are now the SUBJECTS of the ruling class and are irrelevant to the processes of government.

        • They were prolific writers, stating that laws have will have specific meanings without so called interpretations. The court was to only state the law, enforce only what was Constitutionally lawful, not make so called interpretations, they thought were allowed, when these is not the facts.
          They wrote what was fact and the limited action used was follow the law as stands, for we wrote all points explaining that they are to enforce law as it was written and not to put their two cents worth in.
          Also they said if we want a real Constitutional Republic to elect and put in office people of christian morals, this means, the people are happy, Elect immoral people and the nation groan .
          Read all their writings and see the facts vs/ what is going on today with all the traitors we elect and those traitors appointed and causing all this ..

          As stated they said Anything not following the Constitution IS NULL AND VOID, WASHINGTON, ADAMS, JEFFERSON, FRANKLIN, and most of the 256 founders wrote.

          Read the books and see the facts vs/ the lies and trash stated as so called laws…

    • Richard Olsen | March 24, 2018 at 11:11 am | Reply

      What you seem to have missed somewhere along the line is that, at least for once, George W. Bush was almost correct. Had he known the difference between parchment and paper, he would have been absolutely correct when he stated that the “constitution was just a damned piece of paper”. Since February 23, 1871, the former united states of America has been ruled by a private municipal corporation. Actually, there have been three of them; all of which went bankrupt, the last of them under Chapter 11 in 1933. It has never emerged from that bankruptcy, and remains in receivership. What we have is a corporate de facto government that rules by force alone and has no lawful or constitutional authority whatever. The republic that was founded under the constitution for the united states of America in 1789, amended with the articles known as the “Bill of Rights” in 1791, ceased to exist on March 27, 1861. The documents that I just named were a covenant that the ratifying states pledged to abide by and which established a government in which all of its elected and appointed officials had to swear a solemn oath to support, defend and abide by the terms of that covenant. The failure of the congress to act against violations of that covenant led to secession based on the principle of well established law that a breach of a contract nullifies the contract. The War of Secession, wrongfully called the Civil War, did not, and could not, restore the covenant. From April 15, 1861 through February 22, 1871 the country was ruled under a military dictatorship that masqueraded as a republic in which a large part of the country was ruled as an occupied country. The constitution still exists (though altered in significant ways during “restoration”) in the National Archives, but none of it remains relevant to how we are now ruled over, with no “rights” whatever. Incidentally, that includes the 2nd amendment. (That has already been disregarded by the passage of dozens of statutes that abridge the right to keep and bear arms.)

      • Sadly too true!

      • elainewoodriff | March 24, 2018 at 9:56 pm | Reply

        Thank you, Richard, for all the information of what is the actual status of our “constitution”. The truth is very important.

      • lightingstrikesthrice | March 25, 2018 at 8:26 am | Reply

        Yes, yes, yes Richard Olsen! International law trumps all other laws. And it’s all business. Those whom own the debt, are masters of the debtees. The IMF issues SSI cards for crying out loud. That tells one everything one should know. FDR actually publicly admitted to being insolvent so there ya go. John Perkins the author of Confessions of an Economic Hitman, should have researched into who were the economic hitmen to this country(corporation, kakistocracy)*chuckles*.

    • lightingstrikesthrice | March 25, 2018 at 8:22 am | Reply

      Nicely done. But remember the play of words starting this contract: We The People. Capitalization means designation. The majority is not part of that designation. Also, the corporation that is the Fed, and all States, Counties, cities, etc, are bankrupt and insolvent. We are indebted to those whom own that debt, they are our masters. The private families whom own the Fed Reserve, IMF. International law trumps any federal or domestic laws. Plus, the use of ‘national security’ means those in public office can do w/e they choose to as well. There was/is a purpose to this, why the ‘founding fathers’ put that in there. Wasn’t an accident. But, yeah, great post!

  2. Dagmar Palmerova | March 24, 2018 at 1:14 am | Reply

    welcome to the club, your government has been doing it to the rest of the world for a long time, besides your&Nato defense dept. have been reading our thoughts and minds, so it is time to wake up the masses collectively.

    • lightingstrikesthrice | March 25, 2018 at 8:16 am | Reply

      Well said. People in the US has been propagandized by ‘sensationalism’. They are blinded(I’m an US citizen).

  3. the media side tracks with such bull as Stormy Daniels while their cronies in congress can sneak in unjust laws

  4. I pray and hope Donald Trump will veto this atrocity.! Proof once again that neither side of the
    ‘good ol boy and girl network’ of the DC swamp critters are just Globalists betraying this country, our Constitution and each and every American citizen! Tar and feathers would become them all!

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