The Crime (Overseas Production Orders) Bill [HL] is a government bill introduced in the House of Lords on 27 June 2018. It is scheduled to have its second reading on 11 July 2018.
Electronic information is increasingly important for the investigation and prosecution of criminal offences. The companies that provide services which generate or store this data are often located outside the UK, particularly in the United States. UK law enforcement agencies and prosecutors can request electronic data from overseas for evidential use through the mutual legal assistance treaty (MLAT) process, but such requests can take many months.
The Bill would enable law enforcement agencies and prosecutors to apply through the UK courts for a court order requiring service providers outside the UK to produce or grant access to electronic data for the purposes of investigating and prosecuting serious crimes. Such an order would be known as an ‘overseas production order’. An application for an overseas production order could only be granted if a judge was satisfied that the data was likely to be of substantial value to the criminal proceedings or investigation for which it was being requested, and that it would be in the public interest.
Applications for an overseas production order could only be made if there was an international agreement in place between the UK and the territory where the relevant provider was based. To date, no such agreements have been concluded, but the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015. The US passed the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act) in March 2018 which provides authorisation for the US to conclude international agreements through which foreign governments can seek data directly from US companies without each request having to be reviewed by the US Government.
The Government has stated that the Bill would bring into line the powers of the courts to seek access to data stored by companies based in the UK with those based in territories with which the UK has a relevant international agreement.