Mutual legal assistance treaty (MLAT) reform is a transnational legal movement aimed at facilitating more rapid law enforcement access to cross-border data, while also preventing violations of state sovereignty through the exercise of extraterritorial jurisdiction over data. Efforts primarily focus on the United States (U.S.) mutual legal assistance (MLA) process, as it is exceedingly slow and convoluted, but also unavoidable, given that most major tech companies have their bases in the U.S. Recently proposed or enacted legal instruments include the U.S. CLOUD Act, the European Union’s (EU) e-Evidence proposal, Council of Europe’s forthcoming Additional Protocol to the Convention on Cybercrime, and a draft treaty for an International Data Access Warrant. Worryingly, most of these instruments would facilitate access by eliminating U.S. procedural protections and would fail to compensate for this loss with sufficiently protective human rights safeguards. This is dangerous. Superficially, MLAT reform may appear to be a merely technical or esoteric topic. However, by profoundly increasing the scope of law enforcement data collection powers, while simultaneously depriving individuals of protections against abuse of those powers, poorly designed MLAT reform policies will potentially result in the surveillance of states worldwide. Of the potential MLAT reforms, the draft proposal for an International Data Access Warrant, introduced by the United Nations (U.N.) Special Rapporteur on the right to privacy, most effectively speeds up access to data, deters extraterritorial jurisdiction over data, and safeguards human rights.
"The Necessity of Human Rights Legal Protections in Mutual Legal Assistance Treaty Reform,"
Notre Dame Journal of International & Comparative Law: Vol. 9
, Article 5.
Available at: https://scholarship.law.nd.edu/ndjicl/vol9/iss2/5