Existing Mutual Legal Assistance has procedural complexities to provide timely access to electronic evidence whereas Interpol cooperation is insufficient to obtain effective access to electronic evidence. In a digital age where cybercrime grows quickl...
Existing Mutual Legal Assistance has procedural complexities to provide timely access to electronic evidence whereas Interpol cooperation is insufficient to obtain effective access to electronic evidence. In a digital age where cybercrime grows quickly, the U.S. CLOUD ACT indicates the legal basis for the extraterritorial access of U.S. law enforcement authorities to data by introducing a new framework that gives foreign governments the right to directly request data of service providers subject to the other party`s jurisdiction. In 2019, the United States signed CLOUD ACT executive agreements with the U.K. and with Australia in 2021.
The research examines provisions by which the relevant U.S. federal law applies to CLOUD ACT executive agreements, the conditions for agreement, the status of agreement’s implementation, and key provisions in these agreements. It also compares this to existing international frameworks for cross-border access to electronic evidence, specifically the Second Additional Protocol to the Budapest Convention on Cybercrime and the EU e-Evidence Regulation, and establishes the case for a Korea–U.S. CLOUD ACT executive agreement and proposes legislative directions.
The CLOUD ACT provides that executive agreements can only be concluded with countries with administrative procedures to effectively protect the rights of citizens and ensure their privacy, and detailed criteria for implementation. While Korea meets most of these conditions, Korea still lacks explicit domestic legal authority to issue requests for data held abroad. Executive agreements cover a broad range of data types including preservation orders, subscriber data, traffic data or metadata, computer data, content data, and interception. Covered crimes are limited only to serious offences and punishable by a maximum sentence not less than three years as provided by the law of the issuing party. Orders targeting nationals of the receiving party or persons residing within its territory are forbidden in the interest of domestic privacy. Orders are directed through the designated authority of the issuing party directly to the service providers of the receiving party; whereas requests for subscriber information and preservation orders may be filed directly by investigative authorities to service providers. Where a service provider objects to an order, it can first challenge the order in front of the designated authority of the issuing party and if this doesn`t work out it can be raised with the designated authority of the receiving party who is ultimately deciding on the issue.
The executive agreement of CLOUD ACT with the United Kingdom and Australia is similar in structure. But though the Australia–U.S. agreement is symmetrically regulated, the U.K.–U.S. agreement has an asymmetric approach regarding subscriber information and preservation requests, and on the categories of persons that require the restrictions made on orders. As far as use goes, the UK has mostly used the agreement for interception, while Australia has relied mainly on the framework to provide access to stored communications.
The CLOUD ACT executive agreement framework has the narrowest scope in terms of the number of countries that are to be involved in comparison with the Second Additional Protocol to the Budapest Convention and the EU e-Evidence Regulation. But it is the Executive agreement that addresses the widest range of data types and which establishes strong protections for the personal information of both parties’ nationals. It guarantees the highest cooperation with the United States, home to a large number of global service providers—hence it remains the most important framework for international cooperation in electronic evidence.
The CLOUD ACT executive agreement is intended to facilitate fast and secure disclosure of a broad range of data, including content data currently held by U.S.-based global service providers. But Korea will need to enact national law allowing for reciprocal data requests and disclosures between governments, to conclude such an agreement. Further, including virtual asset service providers as part of the covered entities should also be considered, along with the adoption of simplified processes for requests for subscriber information. The designated authority should be placed in the Ministry of the Interior and Safety, where investigative organizations such as the National Police Agency, Corruption Investigation Office for High-ranking Officials, and the Serious Crimes Investigation Agency will be located to improve efficiency.
By extending its involvement in different international agreements on electronic evidence cooperation such as a Korea–U.S. CLOUD ACT executive agreement, Korea is projected to improve its ability to respond quickly and efficiently to cross-border crimes.