While the goal of OPOs is to significantly speed up the evidence-getting process for UK law enforcement, it is also a radical change in the process, which we hope will pose a number of legal challenges to OPOs in order to protect the interests and rights of the recipient and create a number of practical challenges for businesses. 1 www.gov.uk/government/publications/ukusa-agreement-on-access-to-electronic-data-for-the-purpose-ofcountering-serious-crime-cs-usa-no62019 For more information on the Overseas Production Orders Act 2019, see our June publication. 3 For more information on the CLOUD Act, see the recent U.S. Department of Justice White Paper and faQs at: www.justice.gov/opa/press-release/file/1153446/download 4 See www.justice.gov/opa/pr/joint-us-eu-statement-electronic-evidence-sharing-negotiations. 5 See www.justice.gov/opa/pr/joint-statement-announcing-united-states-and-australian-negotiation-cloud-actagreement-us. 6 18 U.S.C. Chapter 121 No 2701 -2712 7 829 F.3d 197 (2d Cir. 2016) Other companies and individuals who may be investigated in the United States or the United Kingdom should be aware that each country`s enforcement agencies will have faster and faster access to electronic data abroad, which they consider relevant to their investigations. This, in turn, can affect the expectations of these agencies if their own cooperation and voluntary production of documents are assessed.
If you are a PSC, the agreement and any subsequent agreements made pursuant to the Production of Crime Act and the CLOUD Act will allow foreign law enforcement agencies to provide you with orders that require the transmission of electronic data directly to the law enforcement authority. The relative ease of their issuance and the reduction in time should increase the volume of these international requests and, therefore, increase the burden on State custodians in terms of their acceptance, coordination and response. Although the full agreement has not yet been released, it allows law enforcement agencies to obtain judicial authorization to go directly to technology companies in the other country that contain electronic evidence of an investigation. While obtaining this type of data would generally require a tedious and tedious process of mutual legal assistance (MLA), it is hoped that the provision of a more direct route for obtaining evidence will allow for better investigations. However, there are many complexities within the framework of the agreement, including restrictions on the use and transmission of data received as a result of an order being agreed upon. A major restriction is that, as part of the agreement, a data recipient must process the data in accordance with the recipient`s national law, including its data protection and freedom of information laws. The agreement does not require the technology company to remove encryption and does not require a technology company to execute an order. All measures taken in case of non-compliance are governed by the legislation of the requesting country. The core of the agreement is clearly aimed at facilitating effective and effective access to data.
This can only be a blessing for the rapid detection and prosecution of serious crimes. In the face of evolving threats, governments must do all they can to keep up with the ever-changing landscape; the ability to quickly obtain evidence is of course the key to early detection and proper examination. This is particularly critical of crimes such as cybercrime, whose perpetrators can easily manipulate invisible lines of jurisdiction to erase their tracks and put evidence out of reach.