Nail in the MLAT Coffin: Examining Alternatives Solutions to the Current Mutual Legal Assistance Treaty Regime in International Cross-Border Data Sharing

Pardon me for being one to state the obvious—but, the world is changing. Among the many who do not need that fact reiterated to them are officials in domestic and international law enforcement. Today, where a crime is committed, where a suspect is located, and where the evidence necessary to prosecute him or her exists are all often found in locations throughout all corners of the globe. In navigating this reality, law enforcement agencies around the world are forced to reach outside of their jurisdictional bounds to request data from various sources around the world. However, the legal framework that currently exists governing cross-border information sharing—Mutual Legal Assistance Treaties (“MLATs”)—is woefully inadequate. As a result, countries have begun to look for workable alternatives to the existing process. The United States in particular has recently proposed legislation which would provide an alternative to the current MLAT regime and allow it to form direct, one-on-one information-sharing agreements with other countries, particularly the United Kingdom.

In this paper, I argue, specifically with respect to the recently proposed 2016 U.S. Department of Justice (“DOJ”) legislation, that these sort of MLAT “workaround,” cross-border information sharing agreements are an effective alternative to the current MLAT regime. They allow countries like the United States to more efficiently produce and request data from other countries, all the while ensuring adequate safeguards for the protection of human and privacy rights. I first discuss the conditions which initially lead to the MLAT framework, but which have now increasingly made that framework unworkable. I then go on to describe the current MLAT process, discuss its flaws as they exist currently, and argue that solutions like those recently proposed in the United States, including the 2016 DOJ legislation, are workable, alternative solutions to the current process.

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