Measuring MLAT

Measuring a problem is a first step to solving it.  Many, myself included, have identified problems with the “Mutual Legal Assistance Treaty” (MLAT) system used by one country to retrieve admissible criminal evidence stored in another.  Based on formal international agreements, a country needing evidence (the “requesting country”) under the control of another country (the “responding country”) transmits a written request to the responding country on behalf of state or federal prosecutors in the requesting country.  The responding country reviews the request and, if so inclined, secures the evidence under its own laws and, finally, transmits the evidence back to the requesting country.  Anecdotal evidence, including the experience of state and federal prosecutors in the United States, suggests that the MLAT process can be slow and cumbersome. 

Leaders in both political parties, with support from the U.S. Chamber of Commerce, the Center for Democracy, and many leading U.S. Internet and other technology companies, have voiced the urgent need for MLAT reform.  President Obama’s 2010 National Security Strategy cited the need for our law enforcement agencies to “cooperate effectively with foreign governments” in furtherance of our safety and security, in particular to counter cybersecurity threats. Former Attorney General Holder cited this presidential statement to support a significant budget increase request for Department of Justice MLAT processing, stating that, without MLAT reform “our relationships with our international law enforcement partners and U.S. Internet communication providers are at risk, and our national security and diplomatic efforts are threatened.”

{mosads}Republican Sen. Orrin Hatch (Utah), with bipartisan support, introduced the Law Enforcement Access to Data Stored Overseas (“LEADS”) Act, both this year and last, including MLAT reform procedures, in part to help protect U.S. Internet and other businesses from being trapped between inconsistent legal obligations in the U.S. and overseas, stating:  “The way electronic data is used and stored globally has changed considerably [in recent decades]. . . . This presents unique challenges for a number of industries, who are often faced with the question of whose laws they must follow – American law or the laws where the electronic data is stored.”

Bipartisan support is one thing, albeit a sadly rare one.  Evidence is another.  In support of their request for Congress to “assign the highest priority” to MLAT reform, a consortium of leading technology, privacy and civil liberties and business groups cited a “one thousand percent increase in requests for electronic records” submitted to the Department of Justice (“DOJ”) by foreign countries over the last decade. In 2014, DOJ received 3,270 foreign requests for assistance but only granted assistance, in whole or in part, in 1,465 cases, or about 45 percent.  Earlier this year, DOJ said it was handling more than 10,000 requests from U.S. prosecutors for evidence and the return of fugitives overseas.  Without reform, DOJ projected they will have, by 2020, a backlog of more than 16,000 MLAT-related requests.

Clearly there is a problem.  But how bad is it?  The answer depends on a number of facts that simply are not in the public domain.  How many of the backlogged cases are terrorism or weapons-of-mass destruction-related?  How many are cyberattack related?  Serious crimes like murder?  How many actual prosecutions are derailed because of slow response time, backlogs, resource constraints, and the like?  Are the problems centered in a few specific countries or are they systemic?  Obviously, even a few cases of, for example, murder, are serious to the survivors of victims and the communities in which the victims lived, but the magnitude of the problem depends not only on the raw numbers but on the impact of the broken system on actual cases, both here and abroad.

The LEADS Act was initially introduced in September 2014 and, to date, Congress has held no hearings to evaluate the magnitude of the problem.  Congress should do so.  Beyond hearings, the LEADS Act has several provisions directing MLAT reform by the Department of Justice, including better tracking and transparency of MLAT requests.  DOJ is seeking an additional $32 million in funds for processing MLAT requests.  But, of course, any actions by the U.S. Government can only affect our response to foreign requests.   At least as urgently needed is reform and modernization of the entire international system for mutual legal assistance, which should start with improved technology and procedures with our closest allies and those other countries from which we most urgently need information in our most important cases.

All such efforts will be enhanced by better public information about the scope of the problem.

Cunningham is an information security, privacy, and data protection lawyer, and a senior adviser of The Chertoff Group, a global security advisory firm that advises clients on cyber security. Formerly, he was a U.S. civil servant, working for the CIA and serving as deputy legal adviser to National Security Adviser Condoleezza Rice.