Wexler, Rebecca, The Global Cloud, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers (October 10, 2022). Texas Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4244186 or http://dx.doi.org/10.2139/ssrn.4244186
U.S. policymakers’ responses to the global data privacy movement are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, a wave of new global data privacy laws risks cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law enforcement to circumvent foreign data privacy laws and access cross-border evidence anyway. Yet no one is creating similar procedures for criminal defense investigators.
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