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SBA calls for clarifications on cross-border access to electronic evidence pursuant to the US CLOUD Act

SBA calls for clarifications on cross-border access to electronic evidence pursuant to the US CLOUD Act

The US has for the first time concluded a bilateral agreement pursuant to the US CLOUD Act aimed at facilitating cross-border access to electronic evidence. The agreement with the UK was signed at the beginning of October. A similar agreement with the US is also being discussed in Switzerland. In a position paper, the Bankers Association has defined the minimum requirements which should apply to international investigations and the disclosure of data.

Securing electronic data is already the subject of intensive international debate. The US CLOUD Act, intended to make criminal investigations more efficient, was enacted in March 2018. Under the Act, US authorities can issue overseas production orders, provided the affected countries have concluded a bilateral agreement with the US, as has been the case with the UK since the beginning of October. At the same time, the Council of Europe is also negotiating a Second Additional Protocol to the Budapest Convention on Cybercrime in order to improve access to electronic evidence.

It is the Swiss Bankers Association’s view that the Swiss authorities must evaluate measures to address the new legal necessities. The SBA therefore welcomes the fact that the Federal Council is addressing the question of a bilateral agreement (executive agreement) with the US under the US CLOUD Act. This is to be coordinated with the activities surrounding the Second Additional Protocol to the Budapest Convention.

The SBA supports preliminary clarifications on the negotiations for an executive agreement with the US, provided Switzerland’s requirements for such agreement to ensure adequate protection of its citizens and institutions are met.

At present, the SBA has identified the following minimum requirements for overseas production orders:

  • tight restrictions concerning potential addressees, natural persons and legal entities affected as well as data and crimes concerned
  • preservation of the rights of those concerned as well as data and legal protection
  • protection of bank-client confidentiality

Background:

In the European Union, electronic evidence is needed in around 85% of criminal investigations. For two thirds of these investigations, it is necessary to obtain evidence from online service providers domiciled in another country. Between 2013 and 2018, the number of requests to the most important online service providers grew by 84%.

This exponential increase exceeds the capacities of traditional mutual legal assistance procedures. Internationally uniform and efficient ways to enable public prosecutors and judges to collect electronic evidence across borders in criminal proceedings while ensuring adequate protection for those concerned are therefore being sought.