Christakis & Terpan on EU-US Law Enforcement Access to Data

Theodore Christakis (Institut Universitaire France; Université Grenoble Alpes; CESICE) and Fabien Terpan (Science Po Grenoble; Université Grenoble Alpes; CESICE) have posted “EU-US Negotiations on Law Enforcement Access to Data: Divergences, Challenges and EU Law Procedures and Options” (International Data Privacy Law, OUP (2020)) to SSRN. Here is the abstract:

The EU and the US kicked off negotiations in September 2019 for the conclusion of a very important agreement on LEA access to data. This is the first article to present the context of these negotiations and the numerous challenges surrounding them.

There are strong divergences between the EU and the US about what the scope and the architecture of this agreement should be. The US government supports the conclusion of a “framework agreement” with the EU to be followed by bilateral agreements with EU Member States – in order to satisfy CLOUD Act requirements. The EU wishes to arrive at a self-standing, EU-wide comprehensive agreement and is opposed to solutions that might lead to fragmentation and unequal treatment between EU Member States.

This article presents a detailed EU Law perspective on all these issues, and refers to relevant precedents concerning the conclusion of law enforcement, data-related or other international agreements. It discusses the division of competence on e-evidence between the EU and its Members States; possible architecture for the agreement and options under EU Law; and the role of the respective European Institutions (Commission, Council, Parliament) in the negotiation and conclusion of such an agreement.

The article also studies, using existing case law, what the role of the CJEU could be in relation to such an EU-US e-evidence Agreement.

The article will be useful to anyone interested in transatlantic data flows as well as judicial cooperation matters and, beyond its specific scope, could be used as a real “guide” to EU Law procedures, options and precedents in relation to the conclusion of international data-related agreements.