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European Policy, Government Surveillance

Coalition Urges Congress to Increase Funding for MLAT Process

2014-11-18 MLAT_Blog

This year has seen a number of pressing challenges to the global rule of law when it comes to law-enforcement requests for users’ electronic data.  Each country, of course, has its own processes for determining whether and how the police or other authorities can search for, and seize, the content of communications or records pertaining to a person’s telephone or Internet activity.  Serious disputes are arising, however, about the rules that should apply to cross-border demands for criminal evidence—particularly data. The United Kingdom, for example, has passed a law that purports to empower its authorities to issue warrants for electronic communications that are stored abroad—including information that US-based telephone companies and Internet service providers store in the US.  Meanwhile, the US Justice Department is currently trying to persuade the federal courts to adopt a similar rule, which would allow American prosecutors to force providers to turn over data that’s stored overseas.

Today, CDT and Access have led a coalition of organizations in urging the US Congress to provide greater support for what we believe is the best way of solving this problem: the mutual legal assistance treaty (MLAT) process.  MLATs are formal and binding agreements between countries that set out the procedures through which law-enforcement authorities can seek criminal evidence from other countries.  Although they are not perfect (and, in particular, could often benefit from the addition of greater human-rights protections), MLATs establish rules that are clear, consistent, and grounded in respect for the rule of law.  As indicated in our letter, a well-functioning MLAT process decreases the risk that governments will act improperly when attempting to seize data that is stored in foreign territory.

Providing DOJ with the resources it needs to handle MLAT requests would advance human rights by channeling demands for user data into a system that has certain baseline protections.

At present, the US Department of Justice’s ability to handle MLAT requests from other countries—including for electronic data—is hindered by a lack of adequate resources, resulting in serious delays.  These delays, in turn, have prompted some foreign governments to pressure communications service providers to disclose user data in a manner that would violate human rights (including what we in the US think of as due-process rights).  Providing DOJ with the resources it needs to handle MLAT requests would advance human rights by channeling demands for user data into a system that has certain baseline protections.  Therefore, our letter calls upon Congress to grant the DOJ’s request for extra funding that will make the process more efficient.  That request, if granted, will result in:

  • an increase in the number of DOJ staff members who handle MLAT requests;
  • training for foreign law-enforcement and other officials who submit MLAT requests to the US;
  • the assignment of Assistant US Attorneys and support personnel in the District of Columbia and the Northern District of California to help execute MLAT requests that the US has received; and
  • a new, dedicated FBI unit that will “centralize and standardize” FBI activities in response to MLAT requests.

Additional funding processing MLAT requests will not be a cure for many of the human-rights challenges that come with cross-border law enforcement.  For example, greater funding alone will not address other factors that can impede the efficiency of the US MLAT process; for more on these, see CDT’s blog post on the proposed Law Enforcement Access to Data Stored Abroad Act, S. 2871.  However, an increase in funding for the process would nevertheless be a very significant step in the right direction.