Mutual Legal Assistance in the Digital Age
The Cambridge Handbook of Surveillance Law (David Gray & Stephen E. Henderson, eds., 2017, Forthcoming).
Posted: 24 Mar 2017
Date Written: March 22, 2017
Fifty years ago, a law enforcement agent in India or England or Brazil could effectively do his job—investigating crimes like murder and theft—without ever leaving his country’s territorial borders. A theft in New Delhi would typically involve evidence collection in New Delhi. There were exceptions, of course, but for the most part, local crimes produced local evidence. This is no longer true. Today, an Indian law enforcement investigation of an entirely local crime—one with a local suspect, a local victim, and a violation of local law—will typically involve a great deal of digital evidence, much of which is controlled by a foreign internet company and is therefore difficult for local law enforcement to obtain. Very often, a local official will need to request mutual legal assistance (MLA) from the country with jurisdiction over the data. Typically, this is done in accordance with a mutual legal assistance treaty (MLAT)—whereby one country will provide legal assistance to another country, pursuant to whatever treaty the two countries have negotiated. This process worked well enough for physical evidence, extradition requests, and other forms of twentieth century cross-border legal assistance, but today it is buckling under the weight of demands for digital evidence produced by the global internet.
This chapter provides an overview of the sudden importance of mutual legal assistance in an age when an increasing amount of criminal evidence is both digital and held by offshore firms. The chapter begins with a description of the current—regrettable—state of affairs. Part two describes some of the easiest ways to improve the existing MLA regime, reforms that may require money or manpower, but will not require legal change. These are critical reforms, but even a streamlined and well-oiled MLA regime will never be able to satisfy the needs of local law enforcement demands for digital evidence. Part three therefore looks to alternative avenues for obtaining digital evidence controlled by a foreign service provider. Regardless of which of these procedural paths reformers take, each will require substantive guidelines for determining the conditions under which a law enforcement agent in Country A can lawfully gain access to digital evidence controlled by a firm in Country B. Part four suggests substantive requirements for delimiting that access.
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