A significant barrier to cross-border crime investigations such as serious organised crime, terrorism and child exploitation cases is a lack of law enforcement access to data and evidence. This data is protected by technologies such as encryption offered by ICT service providers, allowing criminals to evade detection.
Enacted in March 2018, the CLOUD Act authorises the United States to enter into bilateral agreements to facilitate the process of obtaining electronic evidence across borders.
The United States and the United Kingdom have entered into the world’s first ever CLOUD Act Agreement, which will allow US and UK law enforcement to demand electronic data directly from tech companies based in the other country, without legal barriers.
We look at the international implications of this development as outlined by the US Department of Justice.
A new weapon in the fight against serious international crime
This agreement will greatly improve law enforcement access to electronic evidence of crime committed in the US that is stored in the UK, and vice versa. More efficient and effective access to data will allow for speedier and more successful investigations, enhancing the ability of the US and the UK to fight serious cross-border crime.
U.S. Attorney General William P. Barr said that “This agreement will make the citizens of both countries safer, while at the same time assuring robust protections for privacy and civil liberties.”
UK Home Secretary Priti Patel said “Terrorists and paedophiles continue to exploit the internet to spread their messages of hate, plan attacks on our citizens and target the most vulnerable. As Home Secretary I am determined to do everything in my power to stop them.”
The current process
The current mutual legal assistance process has faced much criticism. This process sees law enforcement requests for electronic data submitted to foreign governments for approval, often taking many months or even years, and seriously hampering investigations.
Under the new agreement, all requests for access to data will be subject to independent judicial authorisation or oversight. Once law enforcement has obtained the appropriate court authorisation, they may directly request data from tech companies based in the other country rather than going through governments. This is expected to significantly reduce the timeline of obtaining evidence.
What are the specifics of the new agreement?
Both governments agreed to terms which broadly lift restrictions for a broad class of investigations.
Some specifics of the agreement include that:
- Residents of the other country will not be targeted
- It will be ensured that any disclosures made by ICT service providers through the agreement are compatible with data protection laws
- Each country will obtain permission from the other before using data gained through the agreement in certain prosecutions (US cases involving the death penalty and UK cases implicating freedom of speech).
The Cloud Act Agreement between the United States and United Kingdom seeks to address inefficiencies with the current mutual legal assistance process, and is expected to improve the success of cross-border investigations of serious crime through enhanced access to critical data and electronic evidence between the countries.