A ‘global game of whack-a-mole’: Overseas data rules are stuck in the 19th century

Law enforcement and national security officials’ attempts to access foreign-stored data often reveal a stark contrast: the digital data at issue is from the 21st century, while the available mechanisms to access it are decades or centuries old. The Supreme Court is addressing this very issue in United States v. Microsoft, which was argued last week and appeared to rally justices across the ideological spectrum around one conclusion: that regardless of the outcome, Congress should update the laws governing access to data held overseas.

In their Washington Post opinion piece, John P. Carlin, Chair of Morrison & Foerster’s Global Risk + Crisis Management Group and the former Assistant Attorney General for the U.S. Department of Justice’s National Security Division, and Lisa O. Monaco, former Assistant to President Barack Obama for Homeland Security and Counterterrorism, recall firsthand how outdated data access rules can stall investigations and subject companies to contradictory obligations, and outline why the bipartisan CLOUD Act is a promising solution to this increasingly untenable dilemma.

Read more in John Carlin and Lisa Monaco’s Washington Post op-ed.