One of the aspects of Brown and Korff’s report on Digital Freedoms in International Law that warrants further discussion and analysis is their recommendations about mutual legal assistance. The report recommends that companies and States should insist that MLA arrangements are the only appropriate means of cross-border data access. While I understand the authors’ logic in recommending MLA as a structured system with comparatively well-defined legal boundaries and safeguards, this approach overlooks the valuable role that police-to-police cooperation plays in international crime cooperation.
The scope and role of law enforcement cooperation
Law enforcement cooperation is less formal than MLA, with information being shared directly between law enforcement agencies, rather than through ‘Central Authorities’ under cover of formal Government-to-Government requests. Law enforcement cooperation is governed by informal arrangements or by instruments of less-than-treaty-status (such as memoranda of understanding). It is less transparent than MLA, with the terms of international agreements often not being publicly available (this issue came up in the Australian case of Rush and others v Commissioner of Police (2006) 229 ALR 383, where the memorandum of understanding between Australian and Indonesia was not produced due to public interest privilege). The scope of information that can be provided on an agency-to-agency basis is often described in these confidential MOUs, but is delimited by the domestic law of each individual country.
There is a further level of complexity in investigations that relate to criminal activity across international borders. Information that may not be able to be obtained directly on behalf of a foreign country can sometimes be obtained by the police in the host country for a domestic investigation and then shared with the foreign country as part of a joint investigation.
It is not just police forces that share information on an agency-to-agency basis; customs or immigration authorities also have extensive international cooperation networks. The value of law enforcement cooperation is recognised in multilateral treaties such as the UN Convention on Transnational Organized Crime (art 27), the UN Convention against Corruption (art 48) and the Convention on the Prevention of Terrorist Bombings (art 10). International organisations such as Interpol and the World Customs Organization facilitate interagency cooperation on a range of areas. These international networks can move quickly in situations where the time involved in making an MLAT request could thwart an operation.
As noted in a previous post, MLA can be slow. It is heavy on the paperwork and, because it involves a large number of stakeholders and formal processes, is resource-intensive. There has been a trend towards looking for more streamlined alternatives to MLA. The most ambitious of these is the European Evidence Warrant (EEW), which represents a sort of half-way point between law enforcement cooperation and MLA. A designated judicial authority in one member State can issue an EEW for certain objects, data and documents that are in another jurisdiction and are required for criminal proceedings. The EEW is transmitted to the State in which the evidence is located and that State is obliged to recognise and execute the warrant, subject to limited grounds for refusal. The EEW replaces much of the existing MLA system within the EU and coexists with the system of law enforcement cooperation through mechanisms such as Europol.
Where to from here?
It is not just the fact that law enforcement cooperation is an entrenched part of the system that leads me to advocate its retention (at least in some form). The existing MLA system is not appropriate for the wide range of circumstances in which online information needs to be shared. Requiring MLA for the sharing of all data evidence could be akin to the proverbial nut and a sledgehammer. The existing system of international information sharing is complex and confusing. However, there were valid reasons behind the decisions to create many of these different processes and they should not be dismissed out of hand.
Instinctively, there seems to be a difference between an ICT company divulging a user’s name and e-mail address to a foreign country compared with handing over the content of their personal e-mails. And it is another step again to grant ongoing access to a user’s e-mails into the future. The European Convention on Cybercrime recognises this by creating different obligations for each of these circumstances. Many countries’ domestic laws take a similar approach. For example, the US Electronic Communications Privacy Act requires different processes for content or traffic data and separately regulates surveillance.
It is also relevant to consider the destination of the information that is being shared. The EEW is premised on the idea that a more streamlined approach is appropriate for cooperation between States with a shared standard of human rights protections and criminal justice. Where the State requesting the information has a radically different justice system, a more comprehensive MLAT process is necessary.
I agree with Brown and Korff that there needs to be better controls on the way in which information is shared across borders. However, requiring all information sharing about online records to go through the MLA process is not the answer. Instead, there needs to be analysis of all the ways in which information is currently shared through MLA and law enforcement cooperation. A new framework for international information sharing for criminal matters should take into account:
- The nature of the information sought – is it basic subscriber information, e-mail content or ongoing access to an individual’s communications?
- The purpose for which it is sought and any need for urgency – is it an emergency situation where an individual’s life is at immediate risk or is it a long-term criminal investigation?
- The State to which the information is being provided – is it a trusted partner country with shared criminal justice and human rights standards or a State with more divergent legal practices?