Police access to electronic evidence: US-UK agreement comes into force

It has been three years since the UK and the US signed an international agreement on access to electronic evidence.  However, it only came into force on October 3, 2022.

It is unclear what impact, if any, the Agreement will have on the UK’s data adequacy decision. It may be that we will have to wait for a challenge in the CJEU.

The EU court has a history of strong intervention in the field. For example, it struck down EU-US Privacy Shield. Although the CJEU has no jurisdiction over the US-UK Agreement it does over the UK-EU data adequacy decision.

The primary concern in the Schrems II judgment was the lack of proportionality in US intelligence surveillance and a lack of redress for individuals’ complaint. Whilst there is no substantive change in UK data protection law the Commission has already shared its concerns about the protection of EU citizens in the Agreement and will be watching its application in practice closely.

If signing the Agreement with the US is an example of a ‘Brexit bonus’ then what happens next will be of intense political interest.

Download the report here.

The report was written by Commission member Gemma Davies.

Gemma is Associate Professor of Law at Durham University. She can be contacted on gemma.davies@durham.ac.uk.