Examine the problems for an Indian law enforcement agency in accessing electronic data stored abroad and to what extent the recent agreement Clarifying Lawful Overseas Use of Data Act (CLOUD Act) signed by the U.S will serve as a remedy for that. (200 words)
Refer – The Hindu
Enrich the answer from other sources, if the question demands.
IAS Parliament 7 years
KEY POINTS
Issues in accessing data
· While popular service providers offer services in India, they do not store the data locally.
· These companies store electronic communications in the cloud, distributing the data across different countries.
· If the suspect used a U.S.-based messaging service to plan a crime, an Indian officer investigating would have to raise a request for data to the U.S. government where it is stored.
· The current U.S. law prohibits service providers from disclosing user data to foreign law enforcement agencies.
· Currently, an officer in India would have to make a request for electronic data under the India-U.S. Mutual Legal Assistance Treaty to access data held by a U.S. company.
· This process has often been criticised by the Indian police for being time consuming, as well as being cumbersome and outdated.
· Companies like Facebook, however, can directly respond only to requests for “basic subscriber information” — that is, data that a user provides at the time of signing up for a service (name, email address, etc.).
· But, the police need access to more information on the user, such as the content of an online conversation, to further their investigations.
How far the CLOUD Act would help India?
· Recently, the U.S. President signed the CLOUD Act, which will enable the U.S. government to enter into agreements with like-minded states for cross-border data sharing.
· With the enactment of the CLOUD Act, an Indian officer for the purposes of an investigation will no longer have to make a request to the U.S. government but can approach the company directly.
· However, to operationalise the new agreement, the U.S. establishment requires the foreign states to share a common commitment to the rule of law and the protection of privacy and other civil liberties.
· Among many commitments, to qualify for an executive agreement, India will need to ensure that its authorities collect, retain, use and share data as per an established procedure.
· In addition, Indian laws must provide for electronic data requests to be reviewed by a court or other independent authority.
· As of now, India falls short of these requirements. However, with the government looking to legislate on a new data protection law, this can soon change.
