As more criminal activity takes place in cyberspace, law enforcement agencies must routinely reach outside of their national jurisdiction to get evidence or other information stored in the cloud by private companies. In a new policy study, R Street Institute Senior Fellow Arthur Rizer and Associate Fellow Anne Hobson, analyze different proposals for full or partial reform of the system of cross-border law enforcement demands, paying special attention to the challenges of balancing speedy execution with civil liberties and human rights, particularly where other governments may not share our legal systems or underlying values.
“What we have historically understood as ‘jurisdiction’ has been upended—the very nature of data are now transnational and gone is the assumption that data related to a particular crime will be physically located in close proximity to where it took place,” notes Rizer. “This change has created a barbed system that is badly in need of reform.”
Bilateral agreements, such as mutual legal assistance treaties (MLAT), can create avenues for the exchange of electronic evidence that clarify legal discrepancies and jurisdictional issues, as they provide baseline rights protections. This can simplify the process for the submission of data requests and allow law enforcement to receive necessary evidence faster. It can also relieve pressure for countries to implement data localization policies or turn to international bodies to exert control over internet policy debates. However, there are still hurdles and issues that need to be addressed.
As the authors note, an ideal reform proposal will balance a variety of sometimes competing needs. In particular, it should: increase the transparency of the MLA process; enable law enforcement legal access to electronic evidence in an efficient manner; decrease compliance and administrative costs to industry and government; simplify the process for submitting data requests and receiving responses; clarify legal discrepancies and jurisdictional issues; and advance human rights protections.
“Despite formal constraints, the United States has great power to institute and encourage reform because email service providers and other internet companies are predominantly headquartered here,” notes Hobson. “Additionally, we can shape a new reform standard by starting with the largest countries, or by creating new multilateral agreements or updating existing ones. Because of the United States’ status in the world, it has both the power and responsibility to take the lead.”