Saturday

25th Feb 2017

US free to grab EU data on American clouds

  • EU data stored on US-based clouds are open to US government scrutiny. (Photo: Bob West)

An obscure section in a US law is said to entitle authorities to access, without a warrant, data stored by any EU citizen on clouds run by American companies.

Although highly controversial for its indirect effects on Americans, the impact of the law appears to have been overlooked by its intended target - everyone else.

Dear EUobserver reader

Subscribe now for unrestricted access to EUobserver.

Sign up for 30 days' free trial, no obligation. Full subscription only 15 € / month or 150 € / year.

  1. Unlimited access on desktop and mobile
  2. All premium articles, analysis, commentary and investigations
  3. EUobserver archives

EUobserver is the only independent news media covering EU affairs in Brussels and all 28 member states.

♡ We value your support.

If you already have an account click here to login.

Rather than case-by-case snooping, the law authorises mass-surveillance of non-Americans, for purely political purposes, said Caspar Bowden who is the former chief privacy adviser to Microsoft, at a panel on cyber security organised by the CPDP conference in Brussels on Friday (25 January).

“It intentionally targets only non-US persons located outside the US and provides for a blanket authorisation to this for one year at a time. There is no individual warrantry,” said Bowden, who is now an independent advocate for information rights.

The section in the so-called Foreign Intelligence Amendments Act (FISAAA) grants the US government sweeping powers to collect foreign intelligence information stored in US Cloud computing providers like Amazon or Google.

The article specifically states the US Attorney General and the Director of National Intelligence may authorise jointly, for a period of up to one year from the effective date of the authorisation, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

The amendment cites a number of limitations but Bowden, who also co-authored the ‘Fighting cyber crime and protecting privacy in the cloud’ report for the European Parliament, said FISAAA essentially makes it lawful for the US to conduct purely political surveillance on foreigners' data accessible in US Cloud providers.

“It doesn’t have to be a political party, it can be an activist group or anybody engaged in political activity or even just data from a foreign territory that relates to the conduct of foreign affairs in the United States,” he said.

The EU’s current data reform package is apparently unable to respond to the wording outlined in the US act.

Bowden says "binding corporate rules for data processors" was inserted into the European Commission’s data protection regulation proposal with loopholes built-in which allow for FISAAA surveillance.

The binding corporate rules require cloud providers to hire a private-sector audit company to certify the generic cloud system for security.

But private audit companies, says Bowden, are unable to discover secret wire-tappings ordered by the national security law of another country.

The act may have wide implications on the right to respect for private and family life, reinforced by EU law in the charter for fundamental rights inscribed in the Lisbon Treaty.

'Anger and disbelief'

“When my attention were first drawn to the previsions of FISAAA, I went through a strange sequence of emotional reactions. From sort of laughter, through disbelief, to anger to denial,” said another panellist, Gordon Nardell, a London-based barrister specialising in data protection and data retention in the telecoms sector.

The European Commission, for its part, was unable to provide a comment on FISAAA.

“This [FISAAA] is not something we have any comment about,” said the spokeswoman for the European Commissioner of Justice Viviane Reding in an email.

But the issue is not unknown within the EU institutions.

“If it is a US company it’s the FBI’s jurisdiction and if you are not a US citizen then they come and look at whatever you have if it is stored on a US company server,” stated Estonian president Toomas Hendrik Ilves, who also chairs a commission advisory group on cloud computing, at a separate panel discussion on cyber security held on Wednesday.

A high-ranking EU source told this website that the commission is actively looking into the amendment. The source drew some caution on the wide-spread snooping powers put forward by FISAAA but noted that “it is not outside the realm of possibility.”

The Brussels-based European Data Protection Supervisor also refrained from any official comment though an inside contact said they are too investigating.

Meanwhile, a spokesperson for the United States Department of Justice told this website that the US is committed to privacy rights. "The FISA Amendments Act is not used indiscriminately or for political purposes," said the spokesperson, noting that a special court is used for judicial oversight on the requests.

But the section in FISAAA that is generating controversy is filed under 1881a.

The section expanded in 2008 on a 27-year old definition on “remote computing services” to include any providers of public cloud computing.

The amendment specifically targets data of non-Americans located outside the US and removes previous constraints which hindered continuous data collection and mass-surveillance.

FISAAA also notes that investigations should be conducted in a manner consistent with the US Fourth Amendment which guards against unreasonable searches and seizures.

But a US judiciary subcommittee on FISAAA in 2008 stated that the Fourth Amendment has no relevance to non-US persons.

FISAAA also forces US Internet giants and other tech companies operating clouds in the EU to hand over the data or face sanctions, says Bowden.

“The providers have to give all assistance, facilities, information to accompany this in total secrecy. If that secrecy is breached, it’s a contempt of court and probably a breach of the US espionage act as well,” noted Bowden.

Analysis

Why Romania erupted in protest

Current anger over corruption laws can be traced back to a night-club fire in 2015, when many died because of lax safety standards. Romanians then realised that corruption can kill.

French police raid Le Pen's party office

Officers raid the National Front headquarters near Paris over allegations that leader Marine Le Pen used fake EU parliament contracts to pay her personal staff.

News in Brief

  1. Spanish court jails former IMF chief Rato
  2. Macron proposes Nordic-style economic model for France
  3. Germany posts record high budget surplus
  4. Labour ousts Ukip in Brexit homeland
  5. Dutch lower house approves EU-Ukraine treaty
  6. WTO says Russian pork ban was illegal
  7. Belgian nuclear plant made 'significant progress' on safety
  8. Report: Commission gauging EU support for Poland sanctions

Stakeholders' Highlights

  1. EURORDISJoin the Rare Disease Day and Help to Advocate for More Research on Rare Diseases
  2. European Healthy Lifestyle AllianceStudents Who Are Considered Fit Get Better Grades in School
  3. QS World MBA TourMeet with Leading International Business Schools in Paris on March 4th
  4. Malta EU 2017Economic Governance: Agreement Reached on Structural Reform Support Programme for Member States
  5. Socialists & DemocratsWomen Have to Work Ten Years Longer to Match Lifetime Earnings of Men
  6. Counter BalanceTrans-Adriatic Pipeline Is a Major Risk for Banks, Warns New Analysis
  7. Martens CentreEU and US Migration Policies Compared: Join the Debate on February 28th
  8. Swedish EnterprisesTechnology and Data Flows - Shaping the Society of Tomorrow
  9. UNICEFNearly 1.4 Million Children at Risk of Death as Famine Looms Across Africa and Yemen
  10. Malta EU 2017End of Roaming Fees: Council Reaches Agreement on Wholesale Caps
  11. Nordic Council of MinistersNordic Innovation House Opens in New York to Help Startups Access US Market
  12. Centre Maurits CoppietersMinorities and Migrations

Stakeholders' Highlights

  1. Salzburg Global SeminarThe Child in the City: Health, Parks and Play
  2. UNICEFNumber of Ukrainian Children Needing Aid Nearly Doubles to 1 Million Over the Past Year
  3. Centre Maurits CoppietersThe Situation of Refugee Women in Europe
  4. Salzburg Global SeminarToward a Shared Culture of Health: Charting the Patient-Clinician Relationship
  5. European Free AllianceAustria Should Preserve & Promote Bilingual and Multinational Carinthia
  6. Martens CentreShow Your Love for Democracy! Take Part in Our Contest: "If It's Broken, Let's Fix It"
  7. CISPECloud Computing Leaders Establish Data Protection Standards to Protect Customer Data
  8. Malta EU 2017Landmark Deal Reached With European Parliament on Portability of Online Content
  9. Belgrade Security ForumBSF 2017: Building a Common Future in the Age of Uncertainty
  10. CESIEU Not to Revise the Working Time Directive
  11. International Partnership for Human RightsAzerbaijan: 76 NGOs Urge the EU to Use President's Visit to Insist on Human Rights Reforms
  12. UNICEFDeadliest Winter for Migrant Children Crossing the Central Mediterranean