Foreign Government Access to User Data
If a foreign law enforcement officer wants to obtain user data from a U.S.-based company, they have four main options:
- ad hoc arrangements with providers;
- law enforcement cooperation;
- letters rogatory; and
- mutual legal assistance.
1. Ad hoc arrangements with providers
Depending on the domestic laws of the States where the law enforcement officer and internet provider are located, the officer may be able to obtain some types of user data directly from the company. In practice, whether this avenue is available in a particular case depends not only on domestic privacy and communications laws, but also on company policies and terms of service. In the context of online records, this is one of the most commonly used forms of international legal cooperation. These are the figures that are reflected in company transparency reports.
2. Law enforcement cooperation
Law enforcement cooperation is when law enforcement officers in one country share information that they have obtained using domestic processes with law enforcement officers in another country. These law enforcement officers may work with a range of agencies, including police, customs or financial intelligence units. Law enforcement cooperation can be based on country-to-country bilateral relationships, or through inter-governmental organizations such as Interpol or Europol.
Many governments have law enforcement liaison officers or legal attaches stationed around the world who help facilitate police-to-police cooperation. Officers may also draw on informal, officer-to-officer relationships that they have made through international operations, conferences or travel.
3. Letters rogatory
A letter rogatory is a formal request for assistance from the courts in one country to the courts in another country, usually by way of the diplomatic channel. Letters rogatory are the “customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement”. As the US Department of State notes, prosecutors should assume that a letter rogatory will take “a year or more” and even in urgent cases will likely take at least a month. Thus, in practice, letters rogatory have been relegated to a measure of last resort. One of the factors that gives letters rogatory a continuing role is that some countries (including the U.S.) generally only allow government agencies to use the mutual assistance process and therefore defendants can only access information through a letter rogatory.
4. Mutual legal assistance
Mutual legal assistance (MLA) is the formal government-to-government process for sharing information in criminal matters. MLA covers a wide range of assistance, and commonly includes:
- service of documents;
- search and seizure;
- restraint and confiscation of proceeds of crime;
- provision of telephone intercept material; and
- taking of evidence from witnesses.
In the context of online records, the most relevant type of assistance is search and seizure. However, this is only one aspect of the range of assistance encompassed by most MLA relationships.
Mutual legal assistance can be made on the basis of a treaty (Mutual Legal Assistance Treaty, or “MLAT”) or, if both States’ domestic laws allow for it, on the basis of reciprocity. Many States have negotiated bilateral MLATs with one another and there are also multiple regional MLA treaties. There are also many multilateral treaties on transnational or international crime that have MLA provisions. These provisions create MLA obligations between parties, but only for crimes that are covered by that treaty. Examples include the Budapest Convention on Cybercrime and the UN Convention on Transnational Organized Crime.
Multilateral treaties and regional schemes do not supersede, but instead sit alongside any bilateral treaties or relationships that particular States may have.