For more information on the CLOUD Law, see www.justice.gov/dag/page/file/1153466/download and www.justice.gov/dag/cloudact. However, not all states with which the United States has agreements on access to foreign evidence have accepted this result. Thus, the MLAT between the Federal Republic of Germany and the United States contains an explicit provision limiting the application by a contracting party of unilateral coercive procedures, in accordance with a treaty-based application. It is only if the use of contractual applications results in an undue delay in obtaining evidence that the requesting state will be able to resort to its unilateral trial. [35] In Part I of this contribution, we examine the legal nature of the U.S.-UK CLOUD agreement: is this “executive” agreement a binding treaty of international law that is subject to the 1969 Vienna Convention on Treaty Law (VCLT)? This issue, which has not yet been explored, is important because the agreement provides for the creation of mandatory rights and obligations not only for both states, but also for private actors, including cloud service providers and individuals. It is also important for the series of similar negotiations that the United States intends to conduct with other states and institutions, including those already underway with the European Union and Australia. The CLOUD Act requires the Attorney General and the Secretary of State to certify that each executive agreement meets the following four requirements: Thus, a “contract” must not be explicitly designated as such by international law. Other international agreements aimed at making states binding are also possible and, in fact, the name they give to the legal instrument or its form is irrelevant. [7] The question is whether the agreement meets the elements of the VCLT definition. If this is the time, it binds States and must be implemented in good faith by them, in accordance with Article 26 of this Convention. [8] Although the VCLT rules do not apply to international agreements of international organizations, the Convention on treaty law between states and international organizations or between international organizations, which took place in Vienna on 21 March 1986, doc. A/CONF.

129/15, 25 ILM 543 (1986). The other party to an executive agreement is the “qualifying foreign government.” The definition of the latter is defined in two parts of the Cloud Act: Section 2703 and Section 2523. Indeed, under section 2703 of the Cloud Act, a foreign government is one: we assess here what is new in the agreement; Which is surprising. and why, despite the criticism, we continue to view these agreements as positive developments that protect privacy and civil liberties, take into account different cross-border norms and respond to the reality that digital evidence, even essential for purely local crimes, often transcends international borders. Accordingly, the EDPB and the PDS recommend that an international agreement can be reached between the United States and the EU “with strong procedural and material protection rights.” The EDPB and the CEPD also propose that the United States and the EU update their existing MLAT agreements to recognize and integrate the cloud act. The bilateral agreements provided for by the ON THE CLOUD Act aim to put an end to these conflicts, while ensuring that both jurisdictions enjoy similar protection of privacy and civil liberties. Several organizations expressed concern about the negative impact these agreements could have on privacy and human rights and argued that the CLOUD Act undermined the “rights of people inside and outside the United States,” but concerns about what the agreements would allow foreign governments to be challenged.