Uk-Us Bilateral Data Access Agreement

We anticipate that a copy of the agreement will be published in the near future, following the communication of Congress and Parliament. The current process of mutual legal assistance can take up to two years, but the agreement will significantly shorten this period while protecting privacy and strengthening civil liberties. The landmark agreement was signed by U.S. Attorney General William P. Barr and British Home Secretary Priti Patel at a ceremony at the British Ambassador`s residence in Washington, D.C. U.S. recipients of an English OPO may apply to vary or dismiss an OPO from the English Crown Courts and may eventually challenge them in the High Court through a court remedy. As with other national search and manufacturing warrants, an OPO could face a large number of potential challenges depending on the facts of each case. For example, there may be arguments that a request is too broad, that the recipient is not in possession or control of the data, that it is not in the public interest for all or part of the electronic data to be generated or retrieved, or that other conditions that must be met to grant an OPO are not met. The agreement is based on national legislation5 – the power of each government to adopt a data creation order must be based on its own laws and not on the agreement itself (although the agreement sets limits to what can be achieved). Orders submitted to the agreement are governed by the domestic law of the country of issue6. The United States and the United Kingdom both commit in the agreement to ensuring that their national legislation ensures compliance with any order submitted to it.7 It is therefore important to understand the parameters of the agreement before turning to national legislation.

This agreement was facilitated by the addition of legislation recently passed in the United Kingdom and the United States: the Crime (Overseas Production Orders) Act 2019 in the United Kingdom,2 and the Clarifying Lawful Overseas Use of Data Act (CLOUD) Act passed in the United States in 2018. , privacy and the rule of law; the agreement between the United Kingdom and the United States is the first. Further such agreements are expected. In September 2019, the United States and the EU issued a joint statement that they had begun negotiations on a data access agreement4 and a similar announcement was made by the United States and Australia in October 201.5 Other companies and individuals that may be investigated in the United States or the United Kingdom should be aware that the enforcement authorities in each country will have faster and faster access to electronic data abroad. , which are thought to be relevant to their investigation. This, in turn, can affect the expectations of these agencies if their own cooperation and voluntary production of documents are assessed.