116 Pages Posted: 9 Feb 2016 Last revised: 19 Jul 2017
Date Written: January 11, 2016
With globalized communications, criminal enforcement increasingly encounters communications stored in other countries. Mutual Legal Assistance Treaties (MLATs) have been the principal mechanism for responding to these cross-border data requests. This article contends that MLATs today are emerging as a key component of multiple legal and policy debates. Drastically improving the mutual legal assistance (MLA) process has become important, not only for accurate adjudication in individual cases, but also for supporting a globally open and inter-operable Internet against calls for data localization and institution of other stricter national controls on the Internet.
After the Introduction, Part II introduces the relevant history. Part III explores the growing importance of cross-border evidence requests over time, as local law enforcement seeks evidence abroad due to globalized communications, cloud computing, and the spread of encrypted communications that block local wiretaps. Notably, improving the MLA process provides an important alternative to law enforcement authorities’ call for limits on effective encryption. Where an MLA request efficiently provides access to the plain text of communications at the server level, then the law enforcement case for key escrow and other encryption limits becomes weaker. Part IV analyzes short- and medium-term policy changes that could make the current MLA process faster, better, and cheaper. Part V proposes an alternative way to improve MLA requests, what we call a Mutual Legal Assistance Statute (MLAS). Fortunately, there is a statutory precedent for addressing the higher volume of cross-border activity that arises with globalization – the Visa Waiver Program (VWP). Due to the analogous globalization of cross-border evidence, the idea is that eligible countries, with high-quality procedures for seeking evidence, would face a streamlined process for gaining evidence in the U.S. One notable advantage of a statutory approach is its flexibility compared to renegotiation and re-ratification of a treaty with each country, as shown by the VWP amendments in the wake of the 2015 Paris and San Bernardino attacks. The fact that the VWP has operated and adapted successfully over time, with strict-yet-manageable criteria for country eligibility, suggests that MLA stakeholders might fruitfully explore a streamlined MLAS process that learns from the visa waiver precedent.
Suggested Citation: Suggested Citation
Swire, Peter and Hemmings, Justin D., Mutual Legal Assistance in an Era of Globalized Communications: The Analogy to the Visa Waiver Program (January 11, 2016). 71 NYU Annual Survey of American Law 687 (2017); Georgia Tech Scheller College of Business Research Paper No. WP 38. Available at SSRN: https://ssrn.com/abstract=2728478 or http://dx.doi.org/10.2139/ssrn.2728478