A Mutual Legal Assistance Case Study: The United States and France

Abstract

This article provides a case study involving France and the United States for a topic of growing importance – how to reform the outdated system of “Mutual Legal Assistance” (MLA). Mutual Legal Assistance occurs when one country (such as France) requests evidence held in another country (such as the US) for criminal prosecution, frequently pursuant to a Mutual Legal Assistance Treaty. The article is part of the broader Georgia Tech Cross-Border Requests for Data Project, addressing MLA reform. The topic has reached a new level of prominence driven by two technological developments: (1) globalized communications, with data often stored abroad by a cloud service provider; and (2) increased use of encrypted communications, so many local wiretaps are ineffective. The article, building off our prior research on how French criminal procedure operates, examines French and US law in detail to understand the substantive standards that apply to government access to data for criminal prosecutions. Part III explains the US regime, founded on Fourth Amendment protections against unlawful searches and seizures. The United States also has created a multi-tiered set of standards, with different rules, for instance, for: basic subscriber information; metadata such as to/from information; content of stored records; and interception of electronic communications. Part IV explains the French regime. As a general theme, the French system has a tradition of relying on the acts that can be performed at each stage of the investigation, as well as the investigative authority of a particular actor, such as a magistrate. In contrast, the US system relies more heavily on distinct rules for different categories of electronic evidence. Part V explains the current France/US MLA regime. Part VI turns to possible MLA reform, with the proposed reform mechanism of an amendment to the U.S. Electronic Communications Privacy Act. This amendment would provide that the relatively strict US laws would no longer apply to some French requests for the content of communications held by US companies. We conclude that the France/US relationship is a good case study for MLA reform, given the large differences in criminal procedure and substantive standards for access to evidence. Building on choice of law principles, the article identifies what factors support current MLA procedures and which ones instead suggest the need for reform.