CLOUD Act and GDPR in Europe: Data Sovereignty Risks and How OpenKM Helps Mitigate Them

CLOUD Act and GDPR in Europe: Data Sovereignty Risks and How OpenKM Helps Mitigate Them

Written by Ana Canteli on 6 February 2026

In recent months, there has been a lot of talk about data sovereignty, but the reality is that most companies in Spain still rely on cloud services from major providers. The “silent risk” appears when we assume that if data is on servers in Spain or in the EU, then it is already protected.

The key point is this: what matters is not always only where the data is, but who controls the service and under what legal framework they may be compelled to act.

The “silent risk”: residency is not sovereignty

Many organizations confuse data residency (physical location) with data sovereignty (legal and operational control).

With laws such as the U.S. CLOUD Act, the determining factor is not always the geography of the data center, but the provider’s jurisdiction: a provider subject to U.S. jurisdiction may be compelled to preserve or disclose data even if it is stored outside the United States.

What exactly the CLOUD Act is

The CLOUD Act (Clarifying Lawful Overseas Use of Data Act) is a law passed in 2018 (included in the Consolidated Appropriations Act, Public Law 115-141, Division V) that introduced significant changes to the U.S. framework for access to data held by providers.

In practical terms, it clarifies that authorities can require data from providers subject to U.S. jurisdiction when that data is in their “custody, control, or possession,” regardless of where the servers are located.

It also introduced the framework of “executive agreements” to facilitate cross-border access to data between the U.S. and other countries, with conditions and safeguards.

(Note: this article is for informational purposes and does not constitute legal advice.)

Why this matters especially for Spanish or European companies

Because a large part of Europe’s business already lives in the cloud: personal data, financial data, HR records, contracts, intellectual property, customer documentation… If some of that information is on platforms controlled by companies subject to U.S. jurisdiction, there may be a risk of legal requests that put European compliance under strain.

Here’s the key concept:

Data sovereignty is not just residency (EU), but legal and operational control over who can access data, under which law, under what conditions, and with what guarantees.

Where it clashes with the GDPR

The GDPR requires a lawful basis, purpose limitation, data minimization, transparency, and appropriate safeguards—especially where there are international transfers or access from third countries (including access by public authorities).

The EDPB (European Data Protection Board) published Recommendations 01/2020 on supplementary measures so that, when data is transferred outside the EEA, the level of protection remains “essentially equivalent.” The focus is precisely on analyzing the third country’s legal framework and public-authority access.

What the CLOUD Act is NOT: it is not “open season”

It’s worth avoiding slogans. The CLOUD Act does not mean that “the United States can access any data at any time.” In the U.S., access to certain content may require court orders and specific procedures.

But from a European perspective, the issue is not only “whether there is judicial oversight,” but whether the system as a whole offers equivalent safeguards—and whether a European company can comply with the GDPR without getting caught between contradictory obligations.

Concrete risks for a Spanish company (the usual 4)

GDPR conflicts

If an access request is not compatible with European principles or obligations, you risk non-compliance.

Loss of control over sensitive information

Not only personal data: also strategic information (R&D, tenders, contracts).

Reputational risk

Customers and partners increasingly ask: “Who can access my documents?”

Uncertainty and traceability

In certain scenarios there may be limits on notification or transparency, complicating audits and internal explanations.

A layered mitigation plan (no fluff)

Layer 1 — Provider and jurisdiction

Map critical services, who controls them, and which extraterritorial laws could apply. It’s risk management, not ideology.

Layer 2 — Encryption and key control (CMK/HYOK where applicable)

Apply strong encryption and, where feasible, models in which the company manages the keys to reduce exposure. The EDPB contemplates technical measures (such as encryption and key control) within the “supplementary measures” approach depending on risk.

Layer 3 — Information classification

Separate “critical data” from “operational data.” Not everything should live in the same repository or with the same level of exposure.

Layer 4 — Contracts and transparency

Notification and challenge clauses where appropriate; clarity on subprocessors, transfers, and cooperation obligations.

Layer 5 — Sovereign architectures

Hybrid or multicloud, with components under local control: for example, sensitive document repositories on owned infrastructure or with providers not exposed to certain jurisdictions.

Where OpenKM fits in this scenario

OpenKM is a document management platform (DMS/ECM) designed to control the document lifecycle: permissions, organization, search, collaboration, and workflows. In the CLOUD Act/GDPR context, it fits for three practical reasons:

1) Access control and document security

OpenKM allows you to define roles, profiles, and privileges, apply security at folder and document level, and reinforce permissions with fine-grained control (including extensions through customization). This helps enforce “need to know” and reduce internal exposure.

2) Audit and traceability

For GDPR and compliance you need evidence: who accessed what, what changed, when, and under which workflow. OpenKM positions itself with an audit trail and detailed logs suitable for compliance reviews.

3) Deployment flexibility (on-prem, private, cloud)

For many organizations, the key decision is architectural: keep certain repositories “inside the perimeter” (on-premises or private cloud) and, if using public cloud, control what is shared.

OpenKM explicitly states that, in projects with high security and confidentiality requirements, AI can run on-premises or in private clouds without taking documents outside the perimeter, and that it can also work with cloud AI services by limiting and controlling what information is sent and how it is anonymized when necessary.

The Apple/UK case and why it illustrates the dilemma (security vs government access)

The CLOUD Act was passed in 2018 and was incorporated into a budget law (“omnibus,” PL 115-141).

Years later, the “encryption vs government access” debate returned to center stage with the Apple and UK case. Reuters reported in 2025 on statements by Donald Trump comparing a British demand for access to Apple user data with surveillance practices associated with China, and that there were investigations into whether the UK violated a bilateral pact related to the CLOUD Act.

That same context was also linked to Apple’s withdrawal of an advanced encryption feature in the UK and to reviews of the legal fit of those demands.

Beyond the specific case, what matters for European companies is that this is no longer just an “IT” issue: it is compliance, risk, and the geopolitics of data.

European closing: the Anti-Coercion Instrument

To understand how the EU responds when third countries apply pressure on technology or data matters, it is useful to know Regulation (EU) 2023/2675, the Anti-Coercion Instrument.

This framework defines “economic coercion” and provides, as a last resort, response measures that can affect trade and investment, including restrictions and measures in areas such as public procurement, services, investment, or intellectual property.

Conclusion

Responsible data management starts with an uncomfortable question: who can access my documents—and under what law—even if they are “in Europe”? From there, you build a strategy: controls, encryption, classification, and architecture. And on the document side, platforms like OpenKM help turn data sovereignty into something operational: permissions, auditing, and real control.