The Global Network Initiative Rolls-Out Report Calling for Reform of the MLAT Process
The Global Network Initiative (“GNI”) recently released a report, “Data Beyond Borders: Mutual Legal Assistance in the Internet Age,”examining the current dysfunction in the existing Mutual Legal Assistance Treaty (“MLAT”) process and making recommendations to improve this process. The report, written by law professor Andrew Woods, was compiled based on feedback from law enforcement and diplomatic personnel, service providers, and civil society organizations and was launched on January 28, 2015 with an event at the Center for Strategic and International Studies (“CSIS”) featuring speakers from Google, Microsoft, the Center for Democracy and Technology, and the UK National Crime Agency. The recommendations call for updating the existing system and replacing it with an electronic system, providing further education to law enforcement on use of MLATs, and increasing staffing of overburdened agencies. The hope is that improvements to the speed and efficiency of the MLAT process could reduce the pressure companies face to disclose information directly to foreign governments through coercion and intimidation, laws purporting to have extraterritorial effect, and data localization requirements.
“Data Beyond Borders” argues that five principles should be central to the conversation about MLAT reform:
- MLAT requests should be justified, and the level of assistance requested should be proportional to the requesting country’s interest in the data;
- Reforms must encourage respect for human rights;
- Reforms should increase transparency of the MLAT regime;
- Reforms must significantly increase the efficiency of the existing regime; and
- Reforms should be scalable to law enforcement demand.
The report recognizes the challenge of implementing MLAT reform given that governments must make the necessary changes and may have divergent interests. This challenge was demonstrated during the CSIS event by Gail Kent, who expressed the view on behalf of the UK government that although changes to the MLAT process would be beneficial for law enforcement, the more important element would be the recognition of the right of the UK government to use their laws to obtain data directly about their citizens regarding crime taking place within their jurisdiction regardless of where the service provider may be located. This statement was likely a reference to the DRIP Amendment to RIPA purporting to have extraterritorial effect. Thus, even if there is meaningful MLAT reform, it is unclear whether certain countries would avail themselves of the improved process or would continue to seek more direct access to data. Moreover, to the extent that countries want direct access, they may refuse to invest in meaningful MLAT reform.