This globalization of criminal evidence poses considerable challenges to prosecutions. Traditional cross-border mechanisms, such as mutual legal assistance contracts, are widely considered too slow and cumbersome. The explanatory memorandum to the agreement between the United Kingdom and the United States states that `the total duration of the process [of an application for MLAT transmitted by the United Kingdom to the United States] is generally one year, but may be one year`. “Meanwhile, criminal activity continues and victims continue to be harmed.” The aim of the AGREEMENT BETWEEN THE UK and the US is therefore to propose a paradigm shift: instead of asking for electronic evidence on the cumbersome intergovernmental mechanism of MLATs, the parties could request the data directly from the CSPs, subject to several conditions and guarantees. This is precisely the logic of the draft e-Evidence Regulation that is currently being discussed at EU level (discussed previously on this blog and elsewhere, see here, here and here). The agreement between the UK and the US will be particularly useful for the UK: it is based on the second part of the CLOUD Act, which allows like-minded countries to enter into an executive agreement on the CLOUD Act with the US to submit direct requests to US providers of communication content relevant to the investigation of “serious crime” and subject to several other restrictions and conditions. In other words, with this agreement, the UK will now overcome the blocking provisions of the Stored Communications Act that otherwise prohibit US service providers from communicating communications content to a foreign government (for a detailed explanation of how it works, click here). According to the explanatory memorandum to the UK-US deal, “the US should make much less use of the deal, given that few UK CSPs have data of interest to the US” – but `reducing the burden on the US through MLA claims is the main benefit the deal the deal will bring to the US`. (see here, page 5). Therefore, for reasons of international law, a “treaty” does not need to be explicitly designated as such. Other international agreements that States intend to make binding are also relevant and, indeed, the name they give to the legal instrument or the form it takes does not matter.
 The question is whether the agreement meets the elements of the VCLT definition. If so, it shall be binding on States and shall be implemented in good faith by them in accordance with Article 26 of this Convention.  In negotiations on treaties and international agreements in general, the U.S. executive makes every effort to ensure that international obligations to be met do not exceed the limits of existing U.S. law. . . .