Cross-Border Data Forum Bannner


Justin Hemmings

Peter Swire and Justin Hemmings’ article Overcoming Constitutional Objections to the CLOUD Act assesses potential facial and as-applied constitutional challenges to the CLOUD Act under the Fourth Amendment. The authors argue that - without a strong fact pattern for plaintiffs - it would appear difficult to overturn the CLOUD Act on Fourth Amendment grounds. [...]
Updated: January 21, 2020 On January 10, 2020, the U.S. Department of Justice (DOJ) officially notified the Congress of its certification of the agreement between the United States and the United Kingdom on Access to Electronic Data for the Purpose of Countering Serious Crime.  While the DOJ had previously sent the U.S./UK CLOUD Act Executive Agreement to Congress on December 4, 2019, and intended to notify the relevant committees at that time, “because of a clerical error, [the DOJ] did not [...]
In their forthcoming article Defining the Scope of ‘Possession, Custody, or Control’ for Privacy Issues and the Cloud Act, the authors provide the first full analysis of the scope of “possession, custody, or control” under the Clarifying Lawful Overseas Use of Data Act (Cloud Act).  The text of the paper is available on SSRN, and will be published in full by the Journal of National Security Law & Policy.  The introduction is presented here: [...]
In their Lawfare article The Cloud Act Is Not a Tool for Theft of Trade Secrets, Swire and Hemmings explain the allegations from the European Union that the Act is a tool for economic espionage, and why those concerns are mistaken.  The article gives three reasons why prosecutors are highly unlikely to use the Cloud Act to steal intellectual property:  (1) the U.S. has long-standing normative and diplomatic interests in preventing the abuse of economic espionage; (2) even under the [...]