Government Access to Digital Evidence Across Borders: Some Lessons for Africa

Abstract

As Internet use and digitalisation continue to grow in Africa, cross-border access to electronic evidence (such as emails, files and text messages) plays an indispensable role in ensuring public safety, security and the rule of law in Africa. Given the fact that a vast majority of data about citizens/residents of Africa today is stored, managed and processed by US-based technology companies, it has become difficult — at times impossible — for African governments to effectively investigate and prosecute domestic crimes without the assistance of these foreign companies. Considering this reality, this article seeks to answer three interrelated questions: how do African law enforcement authorities access data of residents/citizens in Africa held by US companies for legitimate criminal investigations? How ― and to what extent ― can African countries benefit from the cross-border data access reform initiatives emerging in Europe and the US? How should African stakeholders approach the Internet’s increasing cross-border legal challenges? This article argues that despite the intense debates and proliferation of reform initiatives elsewhere, the issue of cross-border data access is yet to draw the attention of African policymakers, academia and other stakeholders. It also demonstrates that neither the existing system used to obtain digital evidence held by US technology companies nor the emerging global initiatives to modernise this system will address African interests and concerns. This article then makes the case that it is high time for the African Union (AU), its Member States and other stakeholders to explore alternative approaches to cross-border data access and suggests some possible ways forward.