In his testimony and a written report, Andrew Keane Woods outlined the pitfalls and potential opportunities of different reform efforts as countries seek access to foreign-held data.
Digital information does not respect international boundaries or legal jurisdictions. An email linking someone to a crime sent from Arizona to New York may travel through Canada, and the U.K., before arriving at its intended destination. In the era of cloud computing—where data crosses borders seamlessly— new and difficult questions are raised for companies receiving digital evidence requests from law enforcement, states exercising enforcement authority, and individuals seeking to protect their privacy.
University of Arizona James E. Rogers College of Law Professor Andrew Keane Woods provided oral testimony and a written report on this topic to the U.N. Security Council’s Counter-Terrorism Committee in January, sharing his latest research on the major trends that contribute to the current state of cross-border data reforms.
The Challenges of Reform
Society’s increased reliance on digital connectivity has prompted a revolution in how potential criminal evidence is stored, transferred, accessed and controlled. Terrorists and organized criminals increasingly use the internet, social media and encrypted messaging apps to carry out illegal activity, making the ability to obtain digital evidence vital to police investigations.
But between the current system, which typically utilizes mutual legal assistance treaties that are slow and ill-suited to handle most requests, and the insufficient cooperation among international entities, law enforcement agencies across the globe continue to face issues that obstruct their work. Woods’s Security Council report addresses these issues and outlines potential opportunities states can take to ensure access to foreign-held data.
Currently, there are several major reform initiatives under way, each one promising to resolve some challenge associated with access to electronic evidence. However, the establishment of various competing and overlapping regimes increases the chance of fragmentation and confusion, explains Woods.
“Many countries are saying, ‘We need every solution available,’ and for that reason, there are many reform efforts underway,” Woods says. “But too many competing reform efforts will cause fragmentation, where rules begin to overlap or contradict one another. A police officer who is seeking digital evidence today must think carefully about the legal authority used to make the request. And the company receiving the request must decide whether compliance is lawful or will conflict with legal obligations in another jurisdiction. Getting it wrong at any stage adds more time to an already cumbersome process. Meanwhile, of course, there are concerns about human rights and privacy in this domain—the details of which many countries disagree.”
So, how can these issues be resolved? Woods asserts that the key focal points moving forward should include ensuring interoperability between various initiatives as well as enhancing training for law enforcement agencies and private companies. Capacity-building, as Woods highlights, helps to support individuals at each level in knowing under what circumstances a request can be made and when a company should comply.
The U.N. Security Council’s Counter-Terrorism Committee will officially launch the report on Wednesday, Feb. 16 with a virtual event featuring Woods and a panel of experts discussing ongoing reform efforts and related issues concerning the lawful access to digital evidence. To attend, complete the registration form by 12:00 EST on Feb. 15.