Aziz Rahman of Rahman Ravelli considers the likely effectiveness of new data-sharing measures under the US-UK Bilateral Data Access Agreement
In recognition of the potential benefits of having reciprocal agreements with other countries to simplify and speed up the gaining of electronic data from overseas, the UK signed with the United States the US-UK Bilateral Data Access Agreement.
The agreement, signed in October 2019, is due to come into effect this year following a review by both the UK Parliament and the US Congress. When it does, UK agencies such as the Serious Fraud Office, National Crime Agency and Financial Conduct Authority will be able to send overseas production orders (OPO’s) to the US to request data. This data will then, it is expected, be with the agency within weeks or even days. This arrangement is intended to be far faster than the current mutual legal assistance (MLA) process, which can take months or even years for data to be produced.
Recipients of an OPO issued from the UK will have seven days to produce the data or face being held in contempt of court. Any company receiving an OPO is likely to want to avoid this; especially as a director or officer of such a company could be held personally liable for the contempt of court; the penalties for which are imprisonment or an unlimited fine.
Yet, while the use of OPO’s could see a speeding up of the process it may not be so simple. In theory, an OPO is a far swifter means of gaining data than the MLA process that preceded it. But it should not be forgotten that such an order is susceptible to legal challenge – and such a challenge may delay an OPO’s effectiveness.
Under the MLA process, UK agencies had to formally request assistance from an authority in the country where the data was being sought. Such requests were subject to the scrutiny of US courts and could be challenged. The new arrangement enables UK agencies to make an application directly to the UK courts to order a communications service in the US to provide data under an OPO. A US company wishing to challenge an OPO will have to do so in the UK rather than in the US.
The new process enables an “appropriate officer” from a UK enforcement agency to make the application to the Crown Court for an OPO. A judge can make an OPO against a US communications service provider if there are reasonable grounds for believing that:
- There is an ongoing investigation regarding an indictable offence.
- The recipient of the OPO has possession or control of some or all of the electronic data specified.
- The data is relevant to the offence being investigated.
- It is in the public interest for all or part of the electronic data to be produced or accessed.
Once an OPO is issued by the court it is served on the recipient. But challenges can be made to the OPO. A recipient of one can apply to the English courts to have it varied or discharged. Issues such as the request for data being too wide-ranging, the recipient of the OPO not having the data, it not being in the public interest for the data to be produced or the fact that the data may be legally privileged are all possible grounds for challenging the order. At the time of writing, OPO’s are a very new concept, designed to speed up the process for gathering data. But it is hard to foresee a future without them being subject to the strongest possible legal challenges.
OPO’s have been devised to reduce bureaucracy and ensure a steady, speedy flow of information across the Atlantic. It is logical to want this to become a reality and, in theory, OPO’s can certainly make this possible. But, on a practical level, the fact that they could be subject to a range of legal challenges means that we will have to wait to see just how effective they prove to be.
Looking for more information?Read about Multi-Agency and Multi-Jurisdictional Investigations, Serious Fraud Office (SFO) Investigations, Financial Conduct Authority (FCA) Investigations Solicitors.