Law enforcement access to electronic evidence across borders: mapping policy approaches and emerging reform initiatives

Abstract

Abstract With the ubiquity of cloud computing, criminal investigations today—including exclusively domestic ones—often require access to data across borders. However, the traditional system of cross-border legal cooperation—the Mutual Legal Assistance system—is ill-suited to this development. There is a growing consensus that this system is unsustainable and needs to be reformed or replaced with new alternatives. That is where the consensus ends, however. Despite the shared understanding of the problem and repeated calls for reform or replacement of the traditional system, there is little agreement on what these reforms or alternative approaches should look like. What one can witness instead is the proliferation of uncoordinated initiatives that could lead to further jurisdictional conflict and legal uncertainty. The purpose of the present contribution is to map and examine these various initiatives based on the approaches they follow in addressing the challenges in obtaining electronic evidence across borders—issues that are referred to broadly in this article as ‘cross-border data access [CBDA] problem’. It tries to answer two questions: what approaches can best explain the proliferation of initiatives aimed at improving law enforcement access to electronic evidence across borders? To what extent are these initiatives apt to address the CBDA problem? This article develops and distinguishes between four approaches—reformist, unilateralist, internationalist and nuanced—that can best explain the current and emerging initiatives. It then examines the suitability and sustainability of these approaches against their stated objectives and some key principles that have enjoyed extensive support in policy and academic discussions.