The USA Freedom Act: What it Changes and (Mostly) Doesn’t for Cloud Services – And is it Really the Issue

by Latham & Watkins LLP

The recent showdown over renewal of certain provisions of the USA Patriot Act (often called simply the Patriot Act) and the subsequent enactment of the USA Freedom Act Abu Dhabi City_dreamstime_4315037have raised a number of questions about the ongoing impact of these laws on data traversing or being stored in the United States. While the new law takes the NSA out of the direct business of maintaining metadata (which includes phone number called, the time and duration of the call, and location information) on all phone calls originating or terminating in the US (with a declared intent of transitioning instead to a program that will allow court-moderated access to phone company data) and reinstates provisions that enable so-called “roving wiretaps” and monitoring of “lone wolves,” it essentially leaves unchanged the underlying laws that govern the US authorities access to data stored in the cloud. A look back at the history of the Patriot Act and then the specifics of the USA Freedom Act are helpful in evaluating the impact of recent events. First, the Patriot Act. Rather than create new means of access to data, the Patriot Act primarily streamlined and consolidated various processes that had long been in place—processes similar to those found, it is worth noting, in the laws of many other countries. The Patriot Act made many changes to existing laws, including the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Electronic Communications Privacy Act of 1986 (ECPA), with the stated intent of allowing investigators to “connect the dots” to stop terrorists. From the perspective of a non-US person using a cloud service run by an entity subject to US jurisdiction, perhaps the most significant changes made concerned various thresholds of proof or nexus to gain access to data.  These changes broadened the scope of existing authority and lowered the burden on the government to show the need for access. Despite being passed in the wake of 9/11, the Patriot Act’s enactment was not without controversy and among the compromises made was the inclusion of automatic sun-set for some provisions (in the absence of Congressional reauthorization), including the changes to FISA authorizing enhanced data collection and access. These changes, in Section 215 of the Patriot Act, were largely the basis for the telephone metadata collection program disclosed by Edward Snowden, but are also relevant to access to other data.  So, with the expiration of the most recent extension to Section 215, the changes it made to FISA were swept away, leaving the prior provisions of the underlying statutes in place. As noted above, the USA Freedom Act extended the effectiveness of the otherwise sun-setting provisions of the Patriot Act, but with notable changes to the collection of phone metadata. The USA Freedom Act, which passed the House of Representatives prior to the expiration of the Patriot Act provisions it replaces, was drafted with the intent of amending and extending the expiring programs. Instead, the relevant Patriot Act provision sun-set before the Senate passed USA Freedom and, not wanting to risk passage or delay implementation of the collection programs, the Senate passed an unamended version of USA Freedom. As a result, USA Freedom does not expressly reinstate the changes made by Section 215 of the Patriot Act, but instead purports to amend the law as it was in place prior to expiration. Therefore, there is some murkiness as to exactly what the new law is, but either way, the underlying basic laws that existed prior to the Patriot Act remain essentially in place and provide for access to information (including data in cloud services) subject to various procedures and levels of review. The broad rule under the USA Freedom Act is the same as that under the Patriot Act; the government may make requests from the private sector for the production of  “tangible things” (including books, records, papers, documents, and other items) related to foreign intelligence, counterterrorism, and criminal investigations. The USA Freedom Act attempts to strengthen judicial oversight of these requests, making modest changes to the Foreign Intelligence Surveillance Court and significantly prevents the “bulk” collection of records by requiring enhanced specificity in requests. Despite a great deal of discussion in the press, the USA Freedom Act does not appear to create new duties on the private sector to comply with government requests (though the existing duties remain and are substantial). Congress did however grant new protections to the recipients of access requests, including a new right to consult with an attorney before responding to the confidential request. In any case, with or without the changes in the USA Freedom Act—or with or without the original changes made by the Patriot Act—the US is not the only government with  laws granting law enforcement access to data (including records held by cloud service providers). Indeed, other countries have such laws (or take such actions)—sometimes with less or no process and limited review. France, the United Kingdom, and Canada are among the jurisdictions with such laws, many of which have implemented changes that expand their scope. To be clear, there is no suggestion here that these laws are all the same. The salient point is that the world is full of jurisdictions with laws that afford access to records in cloud storage (not to mention jurisdictions that effectively offer no practical protection against such access). Indeed, setting aside laws and lawful government action, private data—whether stored in a shared cloud or using local storage —is likely far more at risk of unauthorized access from criminal acts and covert state actors (acting both domestically and internationally) than from judicially monitored access grounded in the USA Freedom Act. As a result, those investigating data protection issues arising from the use of cloud services might be well advised to consider how encryption with customer-held keys might address all of these issues. While governments with jurisdiction over the cloud customer may demand access to corporate records whether they are encrypted or not, the adoption of effective, well managed encryption technology essentially eliminates concerns about other access. And, as the US Office of Personnel Management has been made painfully aware in the past weeks—encryption is something that data subjects (or at least those out for their votes) have come to expect.

Photo: Dreamstime

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Latham & Watkins LLP | Attorney Advertising

Written by:

Latham & Watkins LLP

Latham & Watkins LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.