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Stakeholders in Reform of Global System for Mutual Legal Assistance

Swire, Peter and Hemmings, Justin, Stakeholders in Reform of the Global System for Mutual Legal Assistance (November 8, 2015). Georgia Tech Scheller College of Business Research Paper No. 32. Available for download at SSRN:
“This essay contributes to the Privacy Project’s volume on Systematic Government Access to Private Sector Data, and also is part of our broader research and law reform project on Mutual Legal Assistance Treaties (MLATs) and law enforcement access to electronic evidence held in other nations. Specifically, this essay briefly explains the reasons why MLATs are vital and becoming increasingly important for law enforcement in this age of globalized evidence. It then adds to the previous literature by presenting the goals of key stakeholders in MLAT reform: the U.S. government, both for law enforcement and other goals; other national governments; technology companies, such as email and social network providers; and civil society, seeking goals including privacy, free speech, and democracy. Part A of the Article explains why two phenomenon are driving the increasing importance of MLATs: (1) storage of consumer records across borders due to Internet uses such as email and social networks; and (2) increasing use of encryption, blocking wiretaps in the user’s country. Part B examines the position of non-U.S. governments, and explains how advances in technology and the use of U.S.-based internet services has increasingly required these governments to petition the U.S. for access to electronic evidence. Part C explains the U.S. government’s position as a combination of law enforcement goals and other government sector goals. These goals include the need for positive working relationships with foreign governments, enabling legitimate law enforcement investigations, and protecting against attempts to use the MLAT system to violate human rights. Part D explains the goals of technology companies, including the wish to comply with lawful data requests, protect the human rights of their users, and find solutions that would persuade foreign governments to refrain from enacting burdensome localization or other regulatory measures. Lastly, Part E explains the goals of various U.S. and international civil society groups. They goals include a desire to raise U.S. and international standards for law enforcement investigations, maintain an open Internet, avoid data localization laws, and prevent a greater role for the International Telecommunications Union or other institutions that would splinter the global Internet. Other parts of our ongoing research will delve into the complex procedures and obstacles that characterize international mutual legal assistance today, as well as our proposed law reforms. Any such reforms, however, will have to be built on an accurate understanding of the incentives and perspectives of the major stakeholders. This essay focuses on that task.”

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