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Government Surveillance, Privacy & Data

MLAT Reform: Who Decides?

Greg Nojeim, Senior Counsel and Director of our Freedom, Security and Technology Project, guest wrote for Lawfare, a site published by the Lawfare Institute in cooperation with the Brookings Institute. It’s solely dedicated to “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.” We’ve published the first few paragraphs here – click below for the full text.

MLAT Reform: Who Decides?

This is the final post in a series analyzing the Daskal-Woods reform proposal for law enforcement demands for communications content across national borders. Daskal and Woods have proposed that countries whose laws and practices meet certain human rights standards, and whose system for cross-border requests includes certain elements, ought to be able to make content disclosure demands directly to U.S. communications service providers rather than having to make the demand through mutual legal assistance processes. In the first post, I examined how the proposal dealt with communications content and in the second, how the proposal should be adjusted to account for cross-border demands for communications metadata.

The Daskal-Woods cross-border law enforcement proposal turns on a determination of which countries’ laws and practices meet human rights standards set forth in the proposal. Under the proposal, only countries whose laws and practices are deemed sufficient will be permitted to obtain content directly from U.S. providers under their own laws, and without intervention by a U.S. court or the U.S. Department of Justice (DOJ). This post addresses the question of who decides whether a country’s laws and practices meet those standards.

First, it is important to distinguish this question from the determination of whom may be the subject of a demand for disclosure of content. The proposal addresses that question well and clearly: a court or another independent process established by the country making the demand authorizes the demand on a case-by-case basis. The proposal is silent, however, on who decides whether a country’s laws and practices meet the required standards.

Full text here.