On its way: The UK-US Bilateral
Data Access Agreement

19 June 2020

Over four years of negotiations later and the UK-US Bilateral Data Access Agreement (the Agreement) is expected to come into effect next month. The Agreement will enable law enforcement authorities on both sides of the Atlantic to obtain electronic data directly from communication service providers (CSPs) in the other country for the purposes of criminal investigations and prosecutions for serious crime. It is historic by virtue of its uniqueness: it is the first agreement to flow from the UK’s Crime (Overseas Production Orders) Act 2019 and the fast track procedure it offers for gathering overseas evidence means it will almost certainly be a precursor to similar agreements with other countries. In previous blogs we have considered the origins of these new powers and the concerns that surround their introduction. Now, on the verge of ratification, we consider in this blog the likely practical impact of the Agreement on criminal investigations in the UK.    


Once in force, the inevitable teething difficulties with interpretation and legal challenges are likely to lead to initial delay but the simplified and expedited process of obtaining evidence that the Agreement offers will make it irresistible to law enforcement authorities such as the SFO, the NCA and the FCA, as well as the police. Investigators will be able to obtain electronic evidence, such as the contents of email, messaging and video conference accounts much more quickly than under the current mutual legal assistance regime.

At present a request to US authorities to access electronic data stored in the US can take between six months and two years to be processed. Contrast this with the default time limit of seven days with which a US CSP served with an Overseas Production Order (OPO) will have to produce the same data or face contempt of court proceedings in the UK (and the ensuing reputational damage).

The expedited process offered by an OPO should reduce the risk of a criminal investigation being abandoned or delayed due to the difficulties in accessing evidence needed. It may also allow investigators to obtain material that they might have previously dismissed as being inaccessible. And all the while the subject of the underlying investigation, be it an individual or a corporate, is likely to be blissfully ignorant of events because the Crown Court judge can include a non-disclosure requirement with the OPO.

In the UK it is not unusual for an investigator to gather evidence from third parties without notice to the suspect but the recipient of an OPO in the US will be the only person responsible for deciding what, if any, material is privileged from a potentially massive haul of data and within a tight timeframe. All of which suggests that from next month UK law enforcement authorities will be able to gain access to significantly more electronic material than ever before. This evidence may increase the number of successful convictions (or encourage early guilty pleas) but equally it may reveal flaws in the investigators’ suspicions which should mean those cases are not proceeded with.

It is not necessarily all plain sailing for investigators as the Agreement does not require CSPs to provide data in a legible format or to decrypt data and the CSP is also able to challenge the OPO and its terms in a UK court (as can the subject if they have been put on notice). And of course an increase in the quantity of electronic data which must be analysed presents its own challenges in terms of resourcing and case progression. 

Whilst a focus for the Agreement has been the investigation of individuals suspected of terrorism and child abuse, the OPO’s remit of serious crime includes serious fraud, bribery and corruption and the new powers should inform any steps taken by corporates and their officers when considering the now familiar themes of internal investigations, self-reporting and co-operation. Please see our article here for further consideration of the impact of the Agreement on corporate investigations. Although fewer in number compared to their US counterparts, CSPs in the UK must also expect and should prepare for any incoming orders to produce electronic data.

At the end of this year the UK will lose the substantial benefit of information sharing measures between EU member states and the formation of new accords with other countries will be of particular importance. The UK will want to demonstrate the success of this Agreement in order to encourage other countries to follow suit. UK law enforcement authorities will also want to maintain a strong relationship with their US counterparts.

Further Information

Please find our related blogs here. For further information on the issues raised in this blog post please contact a member of our criminal litigation team.

 

About the author

Rebecca Niblock is a partner in our criminal litigation team. She has significant experience in both domestic criminal litigation and extradition, having acted for defendants in a wide range of criminal matters from serious fraud, money laundering and corruption, to sexual offences and offences involving violence or drugs. Rebecca specialises in cases involving cross-jurisdictional elements. She has successfully defended a large number of persons requested by other states, both inside and outside the EU in extradition proceedings at all levels from the magistrates’ court to the Supreme Court. She also has experience in advising in sanctions cases, and in providing advice to those subject to Interpol red notices and mutual legal assistance requests.

 

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