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Peter Swire

The U.S. and Australia are currently negotiating an executive agreement under the U.S. CLOUD Act. The pending Australian ‘Telecommunications Legislation Amendment (International Production Orders) Bill 2020’ (the ‘Bill’) is designed – amongst other things – to bring Australian law in line with the U.S. CLOUD Act’s requirements and to provide a legal basis for an executive agreement to enter into effect. Such an executive agreement is anticipated to be similar to the one which has already been agreed between the [...]
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. [...]
Prof. Peter Swire’s Lawfare Blog article “Foreign Intelligence and Other Issues in the Initial Opinion in Schrems II,” reviews the Dec. 19 initial opinion from Advocate General Henrik Saugmandsgaard Øe. In his article, Swire provides background on the Schrems litigation and a brief summary of the “holdings” of the Advocate General’s opinion. While the Advocate General’s opinion is not a binding decision of law; it is generally considered an important prediction of the full Court of Justice of the European [...]
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: [...]