EU–US negotiations on law enforcement access to data: divergences, challenges and EU law procedures and options

Abstract

The EU and the US kicked off negotiations in September 2019 for the conclusion of a very important agreement on LEA access to data. This is the first article to present the context of these negotiations and the numerous challenges surrounding them. There are strong divergences between the EU and the US about what the scope and the architecture of this agreement should be. The US government supports the conclusion of a “framework agreement” with the EU to be followed by bilateral agreements with EU Member States – in order to satisfy CLOUD Act requirements. The EU wishes to arrive at a self-standing, EU-wide comprehensive agreement and is opposed to solutions that might lead to fragmentation and unequal treatment between EU Member States. This article presents a detailed EU Law perspective on all these issues, and refers to relevant precedents concerning the conclusion of law enforcement, data-related or other international agreements. It discusses the division of competence on e-evidence between the EU and its Members States; possible architecture for the agreement and options under EU Law; and the role of the respective European Institutions (Commission, Council, Parliament) in the negotiation and conclusion of such an agreement. The article also studies, using existing case law, what the role of the CJEU could be in relation to such an EU-US e-evidence Agreement. The article will be useful to anyone interested in transatlantic data flows as well as judicial cooperation matters and, beyond its specific scope, could be used as a real “guide” to EU Law procedures, options and precedents in relation to the conclusion of international data-related agreements. NB: This is a pre-copyedited, preprint version of an article accepted for publication in International Data Privacy Law following peer review. The final and updated version will be published here: https://academic.oup.com/idpl. The final version also includes a post-scriptum examining what the effects could be of the July 16th, 2020 Schrems II Judgment of the CJEU on the ongoing EU-US negotiations, as well as the relevance of the October 6th, 2020 data retention/collection judgments of the CJEU.