Cross-Border Law Enforcement Demands: Analysis of the US Department of Justice’s Proposed Bill

On July 15, the U.S. Department of Justice proposed legislation that would permit foreign governments hand-picked by DOJ to conduct wiretapping in the U.S. for the first time, and to do so without a court order based on probable cause of crime. Billed as legislation that would fix the current Mutual Legal Assistance Treaty (MLAT) process for cross-border disclosure of stored communications content, the legislation goes significantly beyond MLATs to authorize real-time surveillance, as well. If enacted in its current form, the legislation would herald a worldwide diminution of communications privacy rights as strong U.S. protections of probable cause and a judicial warrant or court order for disclosure of communications content are effectively swapped out for less privacy protective laws of countries with which the DOJ strikes a deal. The legislation would implement a bi-lateral agreement the DOJ has already negotiated with the United Kingdom, the current text of which has not been publicly released.

Bilateral cross-border law enforcement demands (C-BLED) agreements such as those contemplated in the legislation the DOJ has proposed could be part of the solution if limited to stored content and metadata, and if based on strong human rights standards. However, legislation to clear the way for such agreements must be preceded by enactment of Electronic Communications Privacy Act (ECPA) reform legislation such as the Email Privacy Act (H.R. 699 in the 114th Congress) and must also close a gap in current U.S. law that permits U.S. providers to voluntarily disclose their users’ traffic data to foreign governments.