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Legal Analysis: CLOUD Act & Dark Web Investigations

In early April, Dark Web News published a news report on the Clarifying Lawful Overseas Use of Data Act (or CLOUD Act) and its scope for enabling law enforcement officials to access more information during the course of investigations through Internet Service Provider (ISP) participation.

The CLOUD Act is much more than this though: It is a massive piece of legislation that continues to chip away at the civil liberties and freedoms that the internet can grant us as citizens and users.

Further, the Act has wider reaching effects for everyone that uses the dark web specifically.

How the Bill Was Passed

The constantly shifting boundaries on the internet are a headache for any law enforcement organization. They are power-hungry and they want complete control.

Regardless, the way the CLOUD Act came into law is through the classic political trick of attaching an appendix legislation to a massive budget—specifically at page 2,201 of the Omnibus Budget Spending Bill.

This method of passing a bill to law immediately has a two-pronged effect.

Foremost, stapling a law like this onto a budget provides little to no time for any self-respecting government official to read and digest the proposed law prior to voting on it. The second effect is that this method provides no time for regulators and affected organizations to review and debate the proposed legislation prior to its vote.

The alarm bells of digital privacy rights organizations immediately started sounding when the CLOUD Act became public.

Just as there isn’t time for these organizations, such as the Electronic Frontiers Foundation, to appropriately review and advocate for the rights of citizens, there isn’t enough time for any debate.

Only a day later, the Bill was passed into law. In many ways the Omnibus Bill needed to be passed in order to keep the United States moving forward.

Any state Senator to stand up and oppose the Bill for the CLOUD Act, which might even seem minor in juxtaposition to the major budgetary necessity, may be ostracized by their party and country.

And so, with extremely little oversight, the CLOUD Act came to be.

In early April, Dark Web News published a news report on the Clarifying Lawful Overseas Use of Data Act (or CLOUD Act) and its scope for enabling law enforcement officials to access more information during the course of investigations through Internet Service Provider (ISP) participation.

The dark web is run on relatively ordinary servers that host content such as the OpenLeaf “deep web hosting service” or ShyServers.

The core difference between normal hosts on the clearnet and dark web hosting platforms is anonymity—anonymity in creating an account and anonymity in payment (normally using cryptocurrency as an option).

Dark web hosting services do not require any information and normally have little to no oversight over the content, although some do make a stand against hosting abusive content.

We’ve discussed what the ISPs must do when instructed by law enforcement under the CLOUD Act, although it is important to note the actual effect that something like the CLOUD Act can have on the way the dark web functions.

The CLOUD Act doesn’t provide new tools to law enforcement. It doesn’t generate new avenues or overcome any technical challenges. You’d have to have been under a rock for the last five years to not know that the technical abilities of the federal agencies are way beyond what is legally available to prosecute.

Analysis of the Effects

The loss of civil liberties is not like a curtain coming down quickly at the end of the third act of an opera.

It is the day turning to dusk turning to night, or summer turning to fall and then onto winter. It’s a long, slow burn. It’s a process that over time we all become accustomed to like frogs in the pot as the water warms and slowly rises in temperature; the darkness slowly grows around us.

The CLOUD Act was passed in undemocratic and controversial circumstances, yet not uncommon. It was buried deep as an appendix to a budgetary Bill requiring quick and safe passage as if wrapped like a present for the agencies it benefits.

The CLOUD Act matters. Every single one of these new laws that come into passage do not create the ability for law enforcement to create tools: it creates a legal mechanism for lawfully using the tools that already live in their tool kit.

Is this the process that occurs in a free democracy? Is this what freedom looks like?

It’s all akin to the Federal Bureau of Investigation begging the court system to allow lawful “backdoor” entrance into an iPhone, which was thankfully refused, but they simply paid to have the encryption broken by a private security contractor. They could always find a way into the device: they sought to set a dangerous precedent which allowed them to lawfully find a way into the device.

Now government under the CLOUD Act can quickly and lawfully gain access to nearly every corner of the internet: every server with a citizen’s account housed anywhere across the world.

The dark web is made up of servers which can naturally piggy back off legitimate server companies and private networks. This puts the dark web in the sights of U.S. officials and gives them the legal ability to use the technical tools they’ve had for years. They can now lean into their investigations with weight they never had before.

It should trouble you. It has already begun to alter the conscience of privacy advocates who rethink what they save and where they save it.

Has the Double Speak begun to creep into our lives without us willingly knowing?


Con’s education background is law, where he’s published on crypto-currency regulation. His opinion editorials range across the relationships between people and technology and the societal challenges it presents. His passion is for information security and the intertwining legal issues
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