Between 15th-19th of September, 2014, in the week leading up the first year anniversary of the International Principles on the Application of Human Rights to Communications Surveillance, Access and the coalition behind the 13 Principles will be participating in a Week of Action to help explain the foundation for the principles. Every day, we’ll take on a different part of the principles, exploring what’s at stake and what we need to do to bring intelligence agencies and the police back under the rule of law.
You can read the complete set of posts at: https://necessaryandproportionate.org/anniversary.
Surveillance laws can no longer ignore our human rights. Follow our discussion on twitter with the hashtag: #privacyisaright
The process for sharing criminal investigation information between countries is broken: official exchanges between nations are slow, underfunded, and lacking in user protections. Human rights are at risk. The International Principles on the Application of Human Rights to Communications Surveillance (“Principles”) principle on Safeguards for International Cooperation makes clear that the processes controlling the sharing of information must include human rights protections. Those protections would ensure that mutual legal assistance is not used as a vehicle for arbitrary and unlawful surveillance.
The inefficiency and ineffectiveness of the formal system for sharing legal information is driving law enforcement agencies to use informal channels to share information, which are lacking in transparency and user protections. A coordinated effort is needed to bring together representatives from government, business, and civil society to focus on making country-level agreements viable, rights-protecting platforms for exchanging information without enabling rights-violating surveillance.
Mutual Legal Assistance Treaties (MLATs) are agreements between two or more countries, which create obligations with the status of international law for governments to assist one another in criminal investigations and prosecutions. Law enforcement officers or prosecutors use them when they need help to obtain evidence from within another country’s jurisdiction. Common uses of MLATs are obtaining witness testimony, freezing foreign bank accounts, and executing search warrants. Letters rogatory have traditionally served the same purpose, though they are procedurally outdated and have been replaced by MLATs in many settings.
Access has launched MLAT.info, a website dedicated to tracking MLATs around the globe. The site provides a world map showing the countries currently connected through MLATS along with the text for many of those treaties. The map informs users both where MLATs exist and where they don’t exist, leaving holes in the ecosystem. Comparing the text of the treaties allows users to observe variation in rights protections contained within the treaties.
A case study on MLATs
It is difficult to enumerate all of the ways in which the MLAT system has become unworkable. Those working within the system find it slow, ineffective, and difficult, while members of civil society emphasize its lack of transparency and failure to categorically respect human rights. These shortcomings have been highlighted in a current case in the U.S. Federal Court System. The case, in Warrant for Microsoft, involves a request for a user’s information by U.S. officials.
A magistrate judge issued a warrant to Microsoft under the Stored Communications Privacy Act requesting certain information about an unidentified user. When Microsoft discovered the requested information was stored on a server in Ireland, it challenged the warrant, arguing the U.S. government would instead need to make a request to the Irish government through the MLAT process. The U.S. government countered by arguing that a U.S. court-issued warrant applies extraterritorially — meaning that the warrant binds Microsoft to act abroad even without Irish approval. In Court filings, the government has emphasized that the MLAT process is too slow and cumbersome.
The MLAT system fails to properly protect user information and privacy. That failure has helped to enable overbroad global surveillance. Countries assert their authority to obtain data in foreign jurisdictions, skirting actual mutual legal assistance processes, based on a limited or non-existent connection to the data and without approval of the country where the data is held. As noted by the Principles, legal assistance processes should offer the higher rights protection allowed by either the state requesting information or the state receiving the request. This is known as the “dual criminality standard.” Law enforcement agencies also shouldn’t be able to jurisdiction-shop for low privacy standards.
In addition, the mutual legal assistance system is slow. Very slow. The problem compounds the lack of human rights protections, pushing law enforcement towards even less rights-protecting channels, such as letters rogatory. Partly in recognition of this fact, the U.S. Department of Justice (DOJ) recently asked for an additional $24.1 million dollars above the normal annual amount appropriated for MLAT response. In its request for additional funding, DOJ noted that it has seen a 60 percent increase in the number of requests for mutual legal assistance. The increased money would be used to hire more staff, streamlining the request processing system. Perhaps most importantly, the money would also pay for training foreign jurisdictions on U.S. evidentiary standards. One of the main inhibitors of the MLAT process is is the lack of legal understanding of the standards and processes in foreign jurisdictions. Increasing knowledge of foreign jurisdictions is a critical element of MLAT reform.
Until recently, the text of many MLATs has also been largely secret. Even public agreements have been difficult to locate and read by average users. The launch of MLAT.info changed this by giving a central repository for many MLATs, though many are still secret and not available to the public. Further, little is known about the application of any given MLAT on a case-by-case basis. Not only is there often no paper trail to determine when and how MLATs are used, but there is no authentication to ensure that requests for information are legitimate requests. This lack of transparency, accountability, and oversight in the system means that very few people understand how the system works, neither those subject to its processes or those who could utilize it to their advantage. While prosecutors have access to the information, defendants often have to obtain information through the use of other methods.
The many problems involved in the MLAT system require a many-pronged reform effort. There are a wide range of policy changes, stemming from government, companies, and civil society, which, in conjunction, would create comprehensive reform the fix the MLAT problem, bringing MLATs in line with the standard enumerated by the Principles. Critically, reform should include safeguards to protect human rights and must create a system which incentivizes its use for law enforcement agencies.
Companies whose data are subject to information requests can play a significant role by clarifying their own jurisdictional requirements and by taking clear positions on the standards they believe govern the transfer of data.
In addition, governments have a number of complementary means of fixing the MLAT problem.
- Protect users through adequate human rights safeguards by requiring the requesting state to certify that it has adequate human rights protections in place, creating clear guidelines for handling emergency cases, and using a dual criminality standard;
- Reduce legal uncertainty and inconsistency by making clear which laws apply in which situations and applying higher standards for more sensitive information;
- Remove inefficiency and delays by improving resources, using electronic request forms, and designating a single agency as a point of contact;
- Create transparency through publicizing clear, easily accessible information covering the way in which online records are shared with foreign law enforcement and by providing notification of access;
- Establish accountability, remedies, authentication, and oversight;
- Provide accessibility for defendants by permitting governments to seek records on their behalf;
- Promote comprehensive geographical coverage; and
- Keep up with technological changes.
For more information, please visit MLAT.info.