Cross Border Data and Human Rights – Lawfare Blog with Privacy International
Written by Greg Nojeim
CDT’s Greg Nojeim and Privacy International’s Scarlet Kim have authored a blog post about the UK-US cross border law enforcement demands agreement and the legislation the U.S. Department of Justice proposed to clear the way for the agreement. Nojeim and Kim argue that changes are needed to the proposed legislation in order to protect human rights. The needed changes are consistent not only with current U.S. law that applies to MLAT requests, but also with the requirements of international human rights law and decisions of the European Court for Human Rights and the Court of Justice of the European Union, which decisions are binding on the UK. Their Lawfare blog post can be found here:
Cross-border law enforcement demands have become increasingly important to law enforcement in the digital age. Digital evidence in one jurisdiction—such as the United States—is often necessary to investigate a crime that has effects in another jurisdiction. Because the U.S. is home to many of the largest technology companies and exerts jurisdiction over those companies, it receives a disproportionate volume of mutual legal assistance (MLA) requests under the treaties (MLATs) that it has with other countries.
In response, and at the request of the United Kingdom, the U.S. Department of Justice proposed legislation (“U.S. DOJ legislation”) that would permit countries hand-picked by the Department to make direct demands for communications content held by U.S. communications service providers under agreements between the U.S. and the third-party countries. The proposed agreements, and the surveillance demands that could be issued under them, must meet a number of weak standards that fall short of those required by international human rights law. This legislation would clear the way for a bilateral agreement the Justice Department has already negotiated with the U.K. (“U.K.-US. agreement”), the text of which has not been publicly released.
Strong human rights standards must govern any solution to the problem of cross-border law enforcement demands, including bilateral agreements such as the U.K.-U.S. agreement. Many of these standards are similar on both sides of the Atlantic, as European courts in recent decisions have insisted upon similar safeguards to those imposed in the U.S. Below, we outline a few of the shortcomings of the U.S. DOJ legislation and explain why amending it to impose more stringent human rights requirements finds support in both U.S. and European law.