Translated Article: EU-US Negotiations on Cloud Monitoring started
The EU has quietly started negotiations on direct data access for European law enforcement officers to data from Whatsapp, YouTube, Zoom and Co with the USA. The next round of negotiations is scheduled for June.
The EU Council of Ministers has started negotiations behind the scenes with the USA on “cross-border access to electronic evidence”, according to a Council document classified as “sensitive” that ORF.at has. The first round at diplomatic and official level was held on March 26th. The declared aim of the council is direct access to data in the clouds from WhatsApp, YouTube, or Zoom.
The EU directive of the same name on transnational data access within the EU is currently stuck in the trialogue negotiations between the Commission, Council and Parliament. There is significant resistance among the member states to such cross-border data access, which bypasses all national justice systems.
Almost ten years lead time
With a lead time of almost ten years, during which Europol and national law enforcement officers from Europe had requested access to Facebook’s data at every opportunity, talks had started in autumn 2019, but apart from an informal meeting a year ago nothing happened. Serious negotiations are now apparently taking place under the new US President Joe Biden, and the first round of negotiations was certainly attended by high-level officials.
On the part of the EU, the General Secretary of the EU Council of Ministers, senior officials from the Council’s Internal Affairs and Justice departments, representatives of the European External Action Service (EEAS) and diplomats from the EU representation in Washington attended this meeting. On the US side, there were officials and diplomats from the State Department and Justice, as well as from the US delegation in Brussels. What the EU negotiators have reported there about the EU directive on cross-border access that is currently being worked on is not recorded in detail in this abridged version.
Nothing works without an EU directive
There is only one single, albeit very informative, sentence: “So far, the discussions have focused on the definition of service providers and the data categories.” That means that in three months of trialogue negotiations they are still working on the scope and content of e-evidence, that’s what the directive is called within the EU. “The Commission emphasized the link between the negotiations with the US and the internal EU rules for cross-border data access,” the document said. In other words, without an EU directive, negotiations are up in the air.
The US side had contributed significantly more than the EU to the general gain in knowledge. As the document shows, the first such agreement between the US and the UK from 2019 is not yet in force, as there are “still several unanswered questions”. This is astonishing because the legal systems of these two states are most likely to be compatible with one another, while they differ considerably from the legal systems in the EU. That means that lengthy negotiations can be expected.
The question of the price
At the military level, the USA and Great Britain have maintained a global monitoring and data exchange system through the UKUSA treaty since 1947. That was the basis for the later “Five Eyes” espionage alliance. The USA is currently negotiating a similar agreement with another member state of this alliance, namely Australia, and these negotiations are said to be making good progress. Furthermore, at this meeting at the end of March, the US side announced that further such agreements with third countries would be sought.
It was not mentioned which states could be meant by this. In any case, it is very likely that the remaining two “Five Eyes” members, namely Canada and New Zealand, are among them. Why the US itself is striving for several such agreements is still quite unclear. Since practically all the large internet platforms are US companies, the USA can access this data as required by the “Cloud Act” passed in 2019. Because all the aforementioned negotiating partners also want that, they have to give something in return, because nothing is given away for free in such bilateral agreements.
How it goes on
The next round of negotiations on the subject was scheduled for June before the meeting at the ministerial level, and the further course of action will also be determined then. The content of these transatlantic negotiations depends – see above – on further developments in the ongoing EU trialogue process. This means that at least the framework of an intra-European regulation must first be defined before this framework can be expanded to include a third country, namely the USA.