The 2019 international agreement between the United Kingdom and the United States[1] on access to electronic evidence has attracted wide attention as a new tool of international assistance in criminal matters.[2]  Historically, countries have conducted such cooperation pursuant to mutual legal assistance treaties (MLATs). The UK-US CLOUD Agreement, however, is the first international instrument putting in place a new mechanism providing that law enforcement authorities can request e-evidence directly from a cloud service provider, without going through MLAT procedures.

Peter Swire and Justin Hemmings’ article Overcoming Constitutional Objections to the CLOUD Act assesses potential facial and as-applied constitutional challenges to the CLOUD Act under the Fourth Amendment. The authors argue that - without a strong fact pattern for plaintiffs - it would appear difficult to overturn the CLOUD Act on Fourth Amendment grounds.

Prof. Peter Swire’s Lawfare Blog article “Foreign Intelligence and Other Issues in the Initial Opinion in Schrems II,” reviews the Dec. 19 initial opinion from Advocate General Henrik Saugmandsgaard Øe. In his article, Swire provides background on the Schrems litigation and a brief summary of the “holdings” of the Advocate General’s opinion. While the Advocate General’s opinion is not a binding decision of law; it is generally considered an important prediction of the full Court of Justice of the European Union’s (CJEU’s) decision, which is expected in the first quarter of 2020.

Updated: January 21, 2020 On January 10, 2020, the U.S. Department of Justice (DOJ) officially notified the Congress of its certification of the agreement between the United States and the United Kingdom on Access to Electronic Data for the Purpose of Countering Serious Crime.  While the DOJ had previously sent the U.S./UK CLOUD Act Executive Agreement to Congress on December 4, 2019, and intended to notify the relevant committees at that time, “because of a clerical error, [the DOJ] did not provide actual notification to those committees until January 10, 2020.”

2020 should be an important year for E-Evidence in the European Union (EU). Taking into consideration the significant legal challenges from the globalization of criminal evidence and considering that traditional instruments for cross-border cooperation such as Mutual Legal Assistance Treaties (MLAT) are too slow and cumbersome, the European Commission proposed, on 17 April 2018, “E-Evidence”, a legislative package that basically constitutes the European equivalent of the Cloud Act and aims, in a similar way, to streamline cooperation with service providers and supply law enforcement and judicial authorities with expeditious tools to obtain e-evidence, while also ensuring protection of fundamental rights.

In their forthcoming article Defining the Scope of ‘Possession, Custody, or Control’ for Privacy Issues and the Cloud Act, the authors provide the first full analysis of the scope of “possession, custody, or control” under the Clarifying Lawful Overseas Use of Data Act (Cloud Act).  The text of the paper is available on SSRN, and will be published in full by the Journal of National Security Law & Policy.  The introduction is presented here: