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Commissioner Vera Jourová just presented the European Commission's proposal for negotiations on an EU-US agreement on direct access to electronic evidence, which will be presented to the Council tomorrow.
The proposal by the Commission is a reaction to the last year adopted 'CLOUD Act', an American law authorising US law enforcement to directly access data in hands of US-based companies, wherever in the world these data are stored. An American sherrif can for example directly access German citizens' Gmail, without permission from the German authorities. According to the US government, the current MLAT system, where authorities of one country ask the authorities of the other country for assistance in getting the data for the criminal procedure, is too slow and cumbersome. The European Commission agrees with this argumentation and will ask authorisation from the Member States to start negotiations with the US on direct transatlantic access to electronic evidence. After the negotiations, the American police and judiciary will be able to directly access Europeans' data, without permission and assistance of the authorities, and vice versa.
Member of European Parliament Sophie in 't Veld (Netherlands, ALDE), shadow rapporteur for the eEvidence package, said:
"The Commission shows enormous weakness that it gives in to the unlimited data hunger of the American government. Because of the CLOUD Act, the long arm of the American authorities reaches European citizens, contradicting all EU law. Would the Americans accept it if the EU would grant itself extraterritorial jurisdiction on US soil? And would the Commission also propose negotiations with Russia or China, if they would adopt their own Russian or Chinese CLOUD Act?"
"With the CLOUD Act, the Americans have direct access to European databases with data on European citizens. Most databases are developed by US-based companies. Even though I have asked repeatedly, I still have no strong guarantees that the US authorities will not lay their hands on our data in these databases. "
"The fact that the current instruments for cross-border access to evidence are too costly, slow and cumbersome can never be an argument to just throw them out. I am not against accelerated procedures to find criminals, but this always has to go hand in hand with adequate judicial protection. This is certainly not the case here."
"In the past years police, judiciary and intelligence have increasingly got more extensive cross-border powers, but safeguards for citizens to protect themselves against abuse, arbitrary decisions and mistakes by foreign authorities remain systematically national. If the American police will be able to access our data directly, I also want to see transatlantic judicial protection for citizens. But that will never be on the table."
On 30 January, Sophie in 't Veld organised a Privacy Platform on this topic. Please watch here.