By Melanie Teplinski
Christian Science Monitor
Earlier this month, the Justice Department unveiled a legislative proposal to facilitate cross-border data sharing for law enforcement purposes. While critics called it a “threat to privacy,” that characterization reflects a fundamental misunderstanding of the plan. To the contrary, it’s an approach that would promote privacy, security, and innovation. It should be applauded, not decried.
The draft legislation responds to significant law enforcement problems that result from the rise of the global reach of the Internet, and the peculiarities of US law.
Until recently, law enforcement officials could find most of the evidence needed to investigate local crimes within their own countries. There were, of course, times when evidence was moved across borders or agents were tracking multinational criminals and gangs. In those situations, law enforcement officers either opened joint investigations with foreign counterparts or employed the mutual legal assistance process and made diplomatic requests for sought-after evidence.
Today, however, evidence is routinely located in other jurisdictions, often in the US. Much of the world’s communications are digitized and held by American companies such as Google or Microsoft. A 30-year-old US law called the Electronic Communications Privacy Act prohibits these firms from turning over the contents of US-held communications to foreign governments, even if the requesting government is investigating its own citizens with respect to a local crime.
Now, imagine if British police investigating a murder in London seek the suspect’s emails. If the perpetrator used a British internet provider, investigators would have the emails in days. But if the email provider is an American company, police must initiate the Mutual Legal Assistance Treaty (MLAT) process, which requires a US judge to approve the request. And that takes an average of 10 months to complete. Meanwhile, the murder goes unsolved.
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