First, this article attempts to explain the fundamental mechanisms of the agreement between the United Kingdom and the United States – without naturally pretending that all the subjects covered are set out in detail. This is done by two graphs showing when and under what conditions (and under what conditions) data can be requested from both parties and when other more traditional access routes to E-E-Evidence, such as. B Mutual Legal Assistance Contracts (MLATs) should be used (Part II). This document will then express a number of initial thoughts, comments and questions on the content of the agreement. It considers that, while the agreement contains some useful elements that could allow for a review of some of the boxes of the negotiating mandate granted to the European Commission by the Council of the EU in June 2019, some other issues remain unclear and uncertain, while others are clearly problematic. They raise a number of important issues that need to be addressed in order to better understand the impact this agreement could have on the ongoing negotiations between the EU and the US and, more generally, on EU law (part III). Before rushing into what this means for transatlantic access to prosecution and, in particular, how a future agreement between the EU and the US could differ, it is important to understand its provisions, safeguards and the functioning of the mechanisms of direct access to data put in place by the agreement. But “understanding” cross-border data is not always easy, and the agreement between Britain and the United States is far from an exception. The agreement contains a number of complex mechanisms that were deemed necessary to take into account the different legal requirements of the parties. The introduction of terms such as “receiver-party-person” (based on the idea of reciprocity, but with two differentiated regimes) or “American people” and the resulting targeting procedures, provided for in the agreement, seem strange to lawyers who are not familiar with the subject, let alone the general public, in a way. In addition, the implementation of a “direct access to data” system must generally take into account a large number of factors: the location of the data is one of them; The location of the people targeted is different. and the location of cloud/communication service providers (“CSPs”) is a third.
The combination of these factors and the fact that several “sites” (and different jurisdictions) may be involved in a request for access to digital evidence sometimes makes it difficult to determine how (or if) different cross-border requirements are dealt with under the agreement. In addition, the behavior can also be punished in one jurisdiction, but no offense in a second, or more severely punished in one nation than the other. A sentence of three years` imprisonment should be supplemented by stricter requirements, including the requirement for double criminality.  The requirement of double criminalization, according to which “the offence for which the foreign state seeks assistance is also a crime committed in the required state,” is a cornerstone of extradition treaties that help prevent political or unfair prosecutions and support reciprocity between states.  Although they are generally not included in the text of the MLAT agreements, U.S. law already imposes double criminalization by law: 18 U.S.C. .  Double jeopardy is therefore a necessary condition for executive agreements concluded under the CLOUD Act.