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EU-USA: Meeting on 6 November 2019 discussed agreement on exchange of electronic evidence
- including life imprisonment without review, death penalty and freedom of speech
7.11.19

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The European Commission produced: Note ahead of the second negotiating round for an EU-US Agreement on cross-border access to electronic evidence, 6 November 2019 (Restricted document 13369-19, pdf):

"The purpose of the second round of negotiations is to deepen the discussions on the topics discussed on the 25th September.

The aim is to further explore the starting positions of both sides based respectively on the European Union’s e-evidence proposals and data protection legislation, and the U.S. CLOUD Act and related legislation. The European Commission’s position fully reflects the negotiating directives included in the addendum to the 6 June 2019 Council Decision. A first review of discussions will take place at the EU-US JHA Ministerial in Washington on 11 December 2019."

The key issues discussed included the "categories of data" to be covered including "both content and non-content data" and the "types of offences and criminal proceedings, including both pre-trial and trial state".

The role of judicial authorities ?

"An exchange of views will be also held on the service providers to be covered in the EU-US Agreement. This will include an explanation of the current coverage under the respective EU and U.S jurisdictions. Regarding the competent issuing authorities the Commission will underline that orders addressed to service providers in another Party should be issued or reviewed by a judicial authority, i.e. judge or prosecutor. For transactional and content data, a judge or court should be involved. [emphasis in original]

Following the first round of talks it was agreed to clarify specific points:

- Non-discrimination

- Life imprisonment without review

- Exclusion of data covered by essential interests: "The specific safeguards for data whose disclosure would be contrary to the essential interests of a Member State”.

- Death penalty and freedom of speech:

- Data protection

- Other safeguards

And:

"The United States has asked to provide a brief update on the status of the UK-US bilateral Agreement signed on 3rd October and published on the 7th October 2019."

See: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on
Access to Electronic Data for the Purpose of Countering Serious Crime
(pdf)

Finally, it should be remembered that the EU has still to adopt its laws on the exchange of e-evidence. Negotiations between the co-legislators ( the Council and the European Parliament) have not started - and the parliament has not adopted its negotiating position.

See also: Commission starts negotiations with the USA on exchange of e-evidence (Statewatch News)

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