The treaty is part of a series of modern mutual legal assistance agreements negotiated by the United States to combat criminal activity more effectively. The Treaty should be an effective instrument to support the prosecution of a wide range of criminal offences, including terrorism and drug trafficking. The contract is self-executing. Mutual Legal Assistance Agreement with the United States The United States and the European Union have remarkably different data protection laws. Data protection laws in the US are sector-specific, while the EU takes an omnibus approach. When it comes to access to evidence by law enforcement, the differences between the two systems are even more pronounced. Firstly, the European Union does not have a single comprehensive piece of legislation on law enforcement access to evidence. As the law of criminal procedure is left to the sovereignty of EU Member States, the EU has limited scope for legislation on this issue. However, this does not mean that there is no European framework for the exchange of evidence of criminal offences. These frameworks include the Budapest Convention, the Directive on the protection of natural persons with regard to the processing of personal data for law enforcement purposes and the EIO Directive, which enters into force on 22 May 2017. Therefore, in order to fully understand the system of law enforcement access to evidence, we need a thorough understanding of Member States` legislation.
This article provides an overview of recent research by Peter Swire, Justin Hemmings and myself on the legal regimes governing law enforcement access to data in the United States and France. Our research shows how important it is to create a framework that allows us to take into account the evolution of freedoms in other legal systems. Decision 2003/516/EC on the signing of the EU-US Agreements on extradition and mutual legal assistance in criminal matters EU countries and the United States shall apply the provisions of this Framework Agreement to their bilateral mutual legal assistance agreements. In the absence of such a treaty, the EU and the US undertake to ensure the implementation of the agreement. EU-US Mutual Legal Assistance Agreement In accordance with Article 17 of the Agreement, the EU and the US reviewed the functioning of the Agreement during the period 2015-2016. The conclusion of the review is that, overall, the agreement has been a success. The review process also resulted in recommendations to improve the practical functioning of the EU-US mutual legal assistance relationship, including better knowledge sharing between practitioners on each other`s laws and procedures, and better use of technology to speed up the transmission of requests and evidence, and general communications. A Senate treaty document contains the text of the treaty as it was sent to the Senate, as well as the President`s transmittal letter, the Secretary of State`s submission, and accompanying documents.
When reforming an existing cooperation model, such as mutual legal assistance treaties, it is essential to ensure that legal safeguards are respected. Otherwise, the reform risks weakening citizens` rights by seeking the lowest common denominator between systems. It is important to note that a country can quickly implement reforms that undermine existing safeguards in its legal framework. For example, France has extended its current state of emergency five times since it declared a state of emergency in November 2015 following the deadly Paris attacks, and changed its criminal procedure system in June 2016 to reflect these changes. The state of emergency has extensive police powers and confers extraordinary powers on the Minister of the Interior and the Prefect of the Regions (the State`s representative in the region). The Treaty provides for a wide range of cooperation in criminal matters. Mutual legal assistance under the Treaty includes: obtaining witness statements or personal statements; the provision of documents, records and evidence; locate or identify persons or objects; service of documents; the transfer of persons detained for the purpose of testimony or other purposes; the execution of search and seizure requests; assistance in proceedings relating to the closure and confiscation of assets, the return and recovery of fines; and any other form of assistance not prohibited by the law of the requested State. In the event that existing bilateral treaties between EU countries and the US are not compatible with the agreement, the EU framework should prevail. Search and seizure, for example, have different rules for different stages of the investigation. If a suspect is caught red-handed, the search is permitted only if the nature of the offence is such that evidence is likely to be obtained by seizing the information and if the person whose home is searched is present.
For preliminary investigations, officers of the Criminal Investigation Department must obtain the written consent of the person whose home is to be searched. For formal investigations, the Code of Criminal Procedure provides for extensive powers of the investigating judge to order the search of a place of discovery of objects or data, requiring only that the search be necessary to establish the reality of a crime. A complete and accurate description of this text can be found in the PDF. Law enforcement agencies in the U.S. can also obtain evidence through other means, including voluntary corporate disclosure, subpoena, grand jury subpoena, and mandatory reporting. One of the many measures taken under the state of emergency allows the Minister of the Interior to place under house arrest a person whose behaviour could constitute a threat to public security and order. The Interior Ministry also gains limited control over the press, including the ability to disrupt online communication services that incite or glorify terrorist acts. Similarly, the state of emergency offers the prefect of the regions various possibilities to restrict freedom of movement within his sphere of competence and the Council of Ministers the power to dissolve associations that participate, facilitate or incite serious breaches of public order. In the meantime, interception of telecommunications may be ordered only in cases of offences and misdemeanours punishable by imprisonment of at least two years and when the circumstances of the case require interception. A recent reform in July 2016 gave the liberty and detention judge (and no longer just the investigating judge) the power to order such wiretapping and allowed remote access to emails without the user`s knowledge. During the state of emergency, rules on the collection and access to evidence are highly intrusive and can interfere with civil liberties. For example, the law allows the Minister of the Interior and the Prefect of the Regions to order warrantless searches at any place and at any time if there are serious reasons to believe that the place is being visited by a person whose behaviour constitutes a threat to security and public order.
The state of emergency also gives officers in the Criminal Investigation Department broad powers to access electronic evidence. This provision has been censured several times (here and here) by the Constitutional Council, which considered that an appropriate balance between the protection of public order and the right to privacy had not been achieved. William J. Clinton, Message to the Senate transmitting the Franco-American mutual legal assistance treaty with online documentation by Gerhard Peters and John T. Woolley, The American Presidency Project www.presidency.ucsb.edu/node/227564 According to the Warshak decision, the government must obtain a probable arrest warrant for access to the content of stored electronic communications. This article is part of a series written by participants at a Georgia Tech conference on surveillance, privacy, and data beyond borders: transatlantic perspectives. Different standards of proof are required under these different French regimes and different actors may require different categories of electronic evidence. Only a subset of these regimes are discussed in this article. For other metadata, such as location information, the Stored Communications Act requires a court order (known as “Order D”) for the creation of certain stored records. These D orders require proof of concrete and articulated facts that the information requested is relevant and important to an ongoing criminal investigation. The agreement entered into force on 1 February 2010. It has been implemented in EU countries through bilateral instruments.
I recommend that the Senate give prompt and sympathetic consideration to the treaty and give its advice and consent to ratification. The French system, on the other hand, is based on different sets of rules applicable to the different stages of the investigation, also depending on the investigative powers of the actors concerned. Recently, the powers and influence of the French Public Prosecutor`s Office have increased, limiting the role of the investigating judge in criminal and investigative proceedings. Agreement between the United States of America and the European Union on the protection of personal data relating to the prevention, investigation, detection or prosecution of criminal offences (OJ L 336, 10.12.2016, pp. 3-13) WHAT IS THE PURPOSE OF THE AGREEMENT AND THE DECISION? With a view to the assent of the Council and the Senate for ratification, I transmit to you the Treaty between the Government of the United States of America and the Government of France on Mutual Assistance in Criminal Matters, signed in Paris on 10 December 1998.