While most of the attention of the adult industries (escorting, pornography and camming) have been focused on FOSTA, little attention has been paid to a hastily passed bill known as the the CLOUD Act – Clarifying Overseas Use of Data. This bill was tacked on the spending bill that was passed by Congress and signed by Trump on March 23, 2018. It was never debated by members of Congress, and there were no public hearings held in regards to this law. In all actuality, this law should have been named “How Do We Get Around the Constitution” Act. That is exactly what it enables the US (and foreign governments) to do.
Usually when the US government wants to secure online information about a US citizen stored on servers overseas, they have to follow a treaty, more specifically a Mutual Legal Assistance Treaty, to secure that information. In short, if the FBI wants communications from your profile stored on a server outside the US, they must send a request to the US State Department, who in turn sends a request to the State Department of the country where your communications is stored, who then sends it to a local law enforcement agency so they can go to the court and secure a subpoena signed by a judge for the information the US government wants.
The reason for the CLOUD Act has to do with the DOJ fighting Microsoft for information they wanted on a particular alleged criminal stored on Microsoft servers in Ireland. Except the DOJ was too either lazy to go through the MLAT procedure or they wanted to test the law that says a US subpoena on a US company for data held overseas is not sufficient due process under the Constitution.
Either way, Microsoft fought, and the case was going to be heard by the US Supreme Court shortly.
But now the Microsoft case is moot since the CLOUD Act has become law. And the way the CLOUD Act was passed is a story within itself, which you can read here;
So how does this relate to FOSTA ? Very simple, moving escort ads and escort listing websites overseas does not protect you, either as an advertiser or as a business. With the CLOUD Act, now all the US government has to do is to request that the foreign government provide them with the requested information about a US citizen and they will serve the subpoena on the local company, never providing you notice that your information is being subpoenaed and that information will be handed over to the US government.
So in reality, moving everything offshore may actually lessen your Constitutional rights under the 4th Amendment to privacy and unreasonable searches and seizures. For example the CLOUD Act;
- Includes a weak standard for review that does not rise to the protections of the warrant requirement under the 4th Amendment.
- Fails to require foreign law enforcement to seek individualized and prior judicial review.
- Grants real-time access and interception to foreign law enforcement without requiring the heightened warrant standards that U.S. police have to adhere to under the Wiretap Act.
- Fails to place adequate limits on the category and severity of crimes for this type of agreement.
- Fails to require notice on any level – to the person targeted, to the country where the person resides, and to the country where the data is stored. (Under a separate provision regarding U.S. law enforcement extraterritorial orders, the bill allows companies to give notice to the foreign countries where data is stored, but there is no parallel provision for company-to-country notice when foreign police seek data stored in the United States.)
Be very aware where your information is stored. Just because your Switter account, ProtonMail or escorting ad is hosted/stored overseas doesn’t mean its safe from the US government. Matter of fact, it may actually be at greater risk.
For more on the CLOUD Act see this link;