Direct access a sea change in data gathering in UK US criminal investigations

The Agreement represents a sea change in cross-border investigations.  The Agreement permits criminal authorities in each country to obtain electronic data directly from a range of telecommunications companies (so-called Covered Providers) in the other country – without any need to go through the domestic authorities in the recipient country, a mutual legal assistance treaty (MLAT) or any of the other cumbersome routes currently used.

This could have a major impact on any company whose business satisfies the definition of Covered Provider: social media platforms; data hosting, storage and processing; cloud storage; or potentially any other company to the extent it provides clients with an ability to communicate, process or store data.   It will also impact their customers, including corporate customers, if they are being investigated by authorities in the U.S. or UK, including the U.S. Department of Justice, the UK Serious Fraud Office and the Financial Conduct Authority.  Any company on the receiving end of this new type of production order will need to act fast to respond and/or challenge it, as the time scales for responding are extremely short.

The U.S. is in negotiations with the EU and Australia to put in place similar reciprocal arrangements.