The Long Arm Of The Law Gets Longer – UK Introduces Overseas Production Orders

On February 12 2019 the UK Parliament passed the Crime (Overseas Production Orders) Act 2019 (the "COPO Act"). This new law gives UK authorities (including the Serious Fraud Office ("SFO") and the Financial Conduct Authority ("FCA")) the power to apply to a UK court to compel a company or individual operating or based outside the UK to provide electronic data stored outside the UK.

The COPO Act brings the UK into alignment with the regime in the United States. In 2018, the U.S. Clarifying Lawful Overseas Use of Data ("CLOUD") Act came into force1. The CLOUD Act increased the scope of U.S. companies' obligations to disclose electronic data stored outside the United States. The CLOUD Act also created a framework by which foreign countries (such as the UK) could seek disclosure of data held by U.S. cloud service providers ("CSPs"), without U.S. co-operation or oversight.

The COPO Act allows UK authorities to side-step the notoriously slow process of mutual legal assistance ("MLA") in favour of obtaining an Overseas Production Order ("OPO"), which can be served directly on the person storing the electronic data. OPOs could make it much easier for UK authorities to obtain electronic data stored outside the UK, and will particularly affect CSPs in the United States.

These two laws - the COPO Act and the CLOUD Act - reinforce the trend we have seen in recent years of increased international cooperation in cross-border investigations, particularly between the U.S. and the UK. It is highly likely that the U.S. is the first place we will see OPOs in action.

in this On Point we explain how OPOs will work in practice, and examine what impact OPOs will have on U.S. (and other) CSPs which store or process electronic data outside of the UK.

Key Takeaways

OPOs will allow UK authorities (including the SFO and FCA) to obtain electronic data held overseas from anyone (but particularly CSPs) operating or based outside of the UK. OPOs can only be challenged in UK courts. The majority of CSPs are based in the U.S.2, which means that OPOs are likely to be used most widely in the United States. OPOs will only be available where the UK has a "designated international co-operation agreement" ("DICA") with the country in which the OPO will be served. The U.S. and the UK have been negotiating such an agreement since 2015. This means that the U.S. is likely to be the first country directly affected by OPOs. The fact that a DICA is a precondition of an OPO means we are...