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EU-USA talks on the exchange of e-evidence reveals major differences - USA-UK deal muddies the water

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24 November 2019

EU-USA talks on the exchange of e-evidence reveals major differences - USA-UK deal muddies the water

The Commission has produced a report on the second round of talks on the EU-USA exchange of electronic evidence held in Washington on 6 November 2019. It shows that many differences need to be sorted out and reveals that a UK-USA bilateral agreement in the US legislative pipeline takes a contradictory line to that of the Commission. See:

Report of the Commission services on the second round of negotiations in view of an agreement between the European Union and the United States of America on cross-border access to electronic evidence for judicial cooperation in criminal matters, 6 November 2019 (Council Restricted doc no: 13713-19).

The Commission emphasised that an "EU-US Agreement can only be concluded following agreement on the internal EU rules." Then:

"The United States presented the main elements of the UK-US Agreement on access to electronic data for the purposes of countering serious crime signed on 3 October 2019.

The United States stated that they hope to shortly begin the 180 day certification process with Congress. The Commission raised a series of questions and concerns on the agreement and informed the U.S. Department of Justice that a letter had been sent to the UK authorities on 5 November 2019 with similar points.

The discussions clarified that the first part of the CLOUD Act continues to apply outside the UK-US Agreement and the concluded agreement lifts barriers and does not take precedence over domestic legislation or create new obligations." [emphasis added throughout]

Types of data

An exchange took place on the categories of data including the existing definitions used in the EU, USA and the Council of Europe ‘Budapest’ Convention on Cybercrime:

"The Commission stressed that while the respective definitions are similar, it will be important that transactional data is treated in the same way as content data in terms of safeguards.

On types of offences that should be considered in the negotiations for the agreement, the Commission presented a possible approach based on a threshold and in addition, a list of offences covered by the EU-US Agreement. This could ensure that offences such as the sharing of child sexual abuse images or some terrorist offences are included. The United States committed to examining how the list covered by the e-evidence Regulation would correlate with existing US law."

Safeguards

"The Commission set out the privacy and data protection safeguards that will need to be included in the EU-US Agreement, given the unique circumstances of direct cooperation with service providers.

The Commission... indicated that the need for the controller to comply with a ‘legal obligation” represents the most stable legal basis... The United States underlined that the future agreement should ensure that EU and domestic legislation in EU Member States does not block service providers from responding to orders."

Tit for tat

"The Commission raised the issue of data protection safeguards being applied at both Federal and State level in the United States.

The United States highlighted its concerns on the rule of law situation in a number of EU Member States."

Death penalty and freedom of speech

"On the death penalty and freedom of speech, the United States presented the arrangements agreed with the United Kingdom and the requirements under U.S. constitutional law. The Commission stated that it will assess the conformity of these provisions with the Charter of Fundamental Rights."

Procedural rights

"A brief discussions took place on other safeguards to be considered as part of the negotiations for the agreement. While non-exhaustive, the Commission highlighted procedural rights in general, judicial review, targeting restrictions and minimisation and notification of the authorities and the data target as important topics."

The next meeting will be in Washington on 10 December.

Background

EU-USA: Meeting on 6 November 2019 discussed agreement on exchange of electronic evidence (Statewatch News, 7.11.19)

Commission starts negotiations with the USA on exchange of e-evidence (Statewatch News, 8.10.19)

CJEU ruling casts doubts on the legality of the proposed e-evidence regulation (Statewatch News, 1.6.19)

Documents

Report of the Commission services on the second round of negotiations in view of an agreement between the European Union and the United States of America on cross-border access to electronic evidence for judicial cooperation in criminal matters, 6 November 2019 (Council Restricted doc no:13713-19).

Note ahead of the second negotiating round for an EU-US Agreement on cross-border access to electronic evidence, 6 November 2019 (Restricted document 13369-19, pdf)

The first round of negotiations between the EU and USA took place in Brussels at the end of September: see the Agenda (12523/19, LIMITE, pdf) and: Report from the Commission on the opening of negotiations in view of an agreement on cross-border access to electronic evidence for judicial cooperation in criminal matters (12524/19, LIMITE, pdf)

E-evidence - Negotiations for EU-U.S. Agreement on cross-border access to evidence - report on state-of-play (RESTRICTED doc no: 12318-19, pdf)

European Parliament: Civil Liberties Committee (LIBE): E-evidence: DRAFT REPORT on the proposal for a regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018)0225 – C8-0155/2018 – 2018/0108(COD)) Committee on Civil Liberties, Justice and Home Affairs Rapporteur: Birgit Sippel (148 pages, pdf)

Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime (pdf) See also: Explanatory Memorandum (pdf)

21 Thoughts and Questions about the UK-US CLOUD Act Agreement: (and an Explanation of How it Works – with Charts)