Digital privacy rights and the CLOUD Act regime

Thesis

This thesis considers the impact of the new international data sharing ‘CLOUD Act regime’ on digital privacy rights. The first bilateral agreement of the regime, between the United States and United Kingdom, will enable UK law enforcement to directly enforce UK court orders for preservation, disclosure, and interception of electronic data against US service providers and vice versa. The CLOUD Act regime responds to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim that it will substantively improve on MLA while “respecting privacy and enhancing civil liberties”. This thesis interrogates that claim from a rights-based perspective, focusing on the primary constitutional mechanisms protecting digital privacy rights in each state, the Fourth Amendment to the US Constitution and Article 8 of the European Convention on Human Rights. Chapter 1 explains that emerging literature is divided: US commentators view the regime as neutral or rights-enhancing, while Europeans fear a significant reduction in rights. Chapter 2 details how the shift from MLA to the CLOUD Act regime will impact these rights for three affected classes: US nationals, UK nationals, and all others, ie third country nationals (TCNs). It shows that the contrasting views are each partly right and partly wrong. The CLOUD Act regime will be largely rights-enhancing for US and UK persons, but will further reduce the already limited protections provided to TCNs, due to existing interpretations of the Fourth Amendment and Article 8, which limit their application on the basis of nationality or geography, and thus exclude TCNs. Chapter 3 argues that the jurisdictional scope of these mechanisms should be reconceptualised for today’s digital world to protect TCNs’ digital privacy rights and therefore uphold the rights-enhancing aims of the CLOUD Act regime.

Authors: Cochrane, T

• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: human rights; privacy; data flows; CLOUD Act; cross-border data; Verdugo-Urquidez; overseas production orders; extraterritoriality
• Subjects: Comparative law; Human rights; Cross-border data