RightsCon Toronto 2018

Law enforcement authorities across the world are continuously seeking to gain access to data in different jurisdictions, wherever the data is held. Currently, the primary international mechanism for facilitating governmental cross border data access is the Mutual Legal Assistance Treaty (MLAT) process, a series of treaties between two or more States that create a formal basis for cooperation between designated authorities of the signatories. However, MLATs have been criticized for being slow and inefficient. The MLAT regime includes steps to protect privacy and due process, but agencies have increasingly sought to bypass it, by either cross-border hacking, or leaning on large service providers in foreign jurisdictions to hand over data voluntarily. In particular, access to data collected, processed and stored by big U.S. Internet companies has become an increasing demand worldwide due to the prominence of U.S. internet companies. To fix the problems with MLATs, several government and regional proposals have emerged. This session will explore how MLAT reform can address many current problems, as well as map different approaches to this issue in different jurisdictions to try to bring human rights to cross-border data demands in line with the Necessary and Proportionality principles https://necessaryandproportionate.org/.

From the proposed CLOUD act that would empower the U.S. executive branch to enter into bilateral surveillance agreements with foreign nations, to the negotiations of a similar agreement between the United States and the United Kingdom; to proposals in the European Union and the Council of Europe that may facilitate direct cooperation on access to data between internet companies and governments. We’ll discuss these proposals to try to identify common policy and legal challenges, divergences and potential for cooperating in a joint future strategy: how can we ensure that these proposals will avoid a race to the bottom in the protection and defense of our rights and freedoms?