The International Comity in American Transitional Access to Electronic Data in Criminal Matters:An Analysis of the CLOUD Act
The path of obtaining evidence,established by CLOUD Act in the United States,to collect non-eligible foreign criminal data from network service providers is essentially a unilateral cross-border obtaining evidence activity that bypasses the foreign sovereign.To address potential conflicts of laws,the CLOUD Act incorporates international comity and establishes dual paths for analysis.In order to address the potential con-flict of law that may arise from cross-border forensics,the CLOUD Act embeds international comity and con-structs a dual resolution path of statutory and common law comity analyses depending on the subject that cre-ates the conflict of law.However,drawing on judicial precedent,the international comity system under the CLOUD Act is likely to follow the characteristics of the previous unbalanced comity,and overwhelmingly sup-port unilateral cross-border criminal takings by the United States in the results of comity analyses.This is the result of the flow of international comity theory in the United States.In response to the characteristics of the international comity of the CLOUD Act,China can adopt both the"confrontational"measures of improving data localization legislation and the"conciliatory"measures of promoting the upgrading of the bilateral(multi-lateral)co-operation mechanism for cross-border criminal data access,in order to build an open and orderly cross-border criminal data access path.
The CLOUD Actunilateral cross-boarder obtaining evidenceinternational comityThe Blocking Statuelegal assistance in criminal matters
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