05 November 2020
A taskforce by the Centre for European Policy Studies (CEPS) and Queen Mary University of London has published a report on cross-border data gathering, the US CLOUD Act, the e-evidence proposal, and implications for EU law. The task force report is written by Sergio Carrera, Marco Stefan and Valsamis Mitsilegas
Read the report: Cross-border data access in criminal proceedings and the future of digital justice; Navigating the current legal framework and exploring ways forward within the EU and across the Atlantic (pdf):
"Over the years, the EU has equipped itself with a set of intra-EU, and international cooperation instruments allowing judicial authorities to gather and exchange different categories of data sought as evidence in criminal proceedings and held by service providers across borders.
Within the EU, cross-border cooperation under the European Investigation Order (EIO) is gradually improving, with national authorities becoming increasingly acquainted with this mutual recognition instrument. In urgent cases, real-time cooperation between judicial authorities in the issuing and executing states can be facilitated through Eurojust and the judicial authorities at the National Desks.
At a transatlantic level, the CJEU’s recent pronouncement in the Schrems II case laid bare the incompatibility of US government data processing practices with EU fundamental rights guarantees.
To be legally viable and ‘court-proof’ EU international cooperation instruments enabling cross-border transfers of data must provide for effective – substantive and procedural – safeguards. The effectiveness of these safeguards depends, in turn, on their ability to ensure that access to data by third countries’ authorities does not translate into unjustified interference with the fundamental rights of persons whose personal data are, or could be, transferred from the EU to a third country, and most notably to the US.
The CLOUD Act executive agreements are designed to significantly extend the extraterritorial outreach of US law enforcement authorities over non-US companies. They do so in a non-reciprocal way (to the advantage of the US), introducing differential treatments and levels of safeguards based on criteria such as nationality or place of residence of targeted individuals (to the disadvantage of non-US citizens or residents)."
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