With support from the Hewlett Foundation Cyber Initiative and others, Georgia Tech has become a leading source of research on the increasingly important area of Mutual Legal Assistance (MLA) and cross-border government requests for data.
Two technological trends are rendering the traditional MLA system obsolete: (1) the globalization of data, as webmail, social networks, and other electronic communications are pervasively stored in the cloud, often in a different country; and (2) widespread use of encryption for these communications, so that wiretaps in the local country cannot gain access to the evidence.
Since early 2015, our research team has completed five academic papers, hosted conferences, and worked with global stakeholders to update rules and practices to match the new reality of globalized evidence for criminal cases.
Our research and policy efforts seek to promote four goals:
- Fulfill legitimate law enforcement requests, to investigate cybercrimes and other crimes where evidence is held in a different country;
- Protect privacy and civil liberties in the United States and globally, by assuring due process before evidence is sent to a different country;
- Provide a workable regime for the companies holding the communications records; and
- Safeguard the Internet by resisting calls to localize data and splinter the Internet.
MLA and the Cross-Border Requests for Data Project are discussed Jan. 26, 2017 at CPDP '17 -- the Computer Privacy and Data Protection conference.
Research to Date
Mutual Legal Assistance in an Era of Globalized Communications: The Analogy to the Visa Waiver Program
Peter Swire & Justin D. Hemmings
forthcoming in NYU Annual Survey of American Law
This article introduces the international MLA regime, by explaining the origins of MLATs and how electronic evidence requests have come to overwhelm these systems. It proposes administrative reforms, and introduces the idea of a new statute modeled on the Visa Waiver Program, allowing multiple nations to cooperate better on MLA requests.
Stakeholders in Reform of the Global System for Mutual Legal Assistance
Peter Swire & Justin D. Hemmings
forthcoming chapter in Systematic Government Access to Private-Sector Data (Oxford University Press)
The chapter identifies the stakeholders in the international MLA regime and their respective incentives and goals for reform. This article examines the interests of the US government, non-US governments, technology companies, and public interest groups both in the US and abroad, to inform debates about what reforms are practical and desirable.
Understanding the French Criminal Justice System as a Tool for Reforming International Legal Cooperation and Cross-Border Data Requests
forthcoming in Data Protection, Privacy, and European Regulation in the Digital Age (Helsinki University Press)
This chapter provides a detailed case study of the French system for exchanging criminal evidence with the United States - focusing on the procedural aspects of how France makes or receives MLAT requests. This chapter explains ways that French investigative authorities have broader powers than their American counterparts, as well as safeguards for individuals’ rights during the French criminal investigation process.
A 'Qualified SPOC' Approach for India and Mutual Legal Assistance
Peter Swire & Deven Desai
Lawfare, March 2, 2017
There has been growing legal, policy, and academic attention to the topic of Mutual Legal Assistance (MLA), the mechanisms for evidence held in one country to be provided to a different country for law enforcement purposes. This post summarizes recent developments and proposes a new mechanism for MLA that could be used for the important country of India, and also more generally.
A Mutual Legal Assistance Case Study: The United States and France
Peter Swire, Justin D. Hemmings, & Suzanne Vergnolle
Wisconsin International Law Journal, January 19, 2017
The article examines the substantive rules that apply for MLA requests involving the United States and France, complementing the procedural rules discussed in the previous article. We believe a relatively detailed explanation of the two regimes will be helpful to discussions of MLA reform, because few participants in such debates are experts in both US and French criminal law and procedure.
How Both Europe and the U.S. are “Stricter” than Each Other for the Privacy of Government Requests for Information
Peter Swire & DeBrae Kennedy-Mayo
Emory Law Journal, Vol. 66, 2016
The article examines ways that the US and the European Union (EU) each offer stricter privacy protections for government access to data, contrary to the common assumption that EU privacy law is generally stricter than U.S. law. The analysis builds on our French case studies to show broader implications for MLA reform. The analysis also is highly relevant for current policy debates and law suits concerning whether the US has “adequate” safeguards for privacy, a legal condition for many transfers of personal data from the EU to the US.
Reforming Mutual Legal Assistance Needs Engagement Beyond the U.S.
Ian Brown, Vivek Krishnamurthy, and Peter Swire
Lawfare, March 1, 2016
In this short post, the three authors - who have each written on the subject of MLA reform and who have each convened meetings on the subject (from Washington to Brussels) - stress the importance of a better understanding of both the strengths and weaknesses of each of the countries involved in MLA to avoid distrust based on misunderstanding. Most basically, the three advocate for MLA reform in the US as well as in Europe and globally.