When I first started working on mutual legal assistance treaties (MLATs), they were seen as the less glamorous, hard-working cousin of extradition treaties. An international fugitive being flown back under armed guard to face justice is a satisfying conclusion to a long-running extradition case. By contrast, when the mail room delivers a series of boxes stuffed with bank records or electronic files in response to an MLAT request, it’s hardly a Law and Order scene in the making. With the frenzy of interest in the Microsoft Ireland case, MLATs have suddenly been thrust into the spotlight. While I can’t guarantee a blockbuster story, if we’re going to start talking more about using MLATs for online records, it’s good to start with an actual map of the process.
There has been much talk from the Microsoft side of the case about the way in which MLATs use international law to accommodate the domestic laws of two countries and give due respect to the principle of sovereignty. Meanwhile, the U.S. Government has been throwing up its hands in disbelief at the apparently unrealistic notion of having to channel every request through the slow and arduous MLAT process. Looking at a visual representation helps to explain how the process can elicit both of these reactions.
The attached flowchart shows an MLAT request made by a foreign government seeking electronic records from a U.S.-based company that only accepts Californian jurisdiction (e.g. Google, or Twitter). In most cases, the request originates with a foreign prosecutor or investigator, who works with their government’s central authority (usually the ministry of justice or attorney general’s department) to draft a formal MLAT request. The request is transmitted through the U.S. central authority (the Department of Justice) and works its way through the U.S. judicial and law enforcement system until a search warrant is served on the company. The company responds to the search warrant, and the records begin their journey back through the FBI and the office of the U.S. Attorney for the Northern District of California. The U.S. central authority then seals the records and formally transmits them to the foreign central authority. This is the climactic point at which the mail room delivers the boxes of documents (or DVDs) to the foreign bureaucrats. They can then sort the files and use them to identify or build a brief of evidence against the suspected criminal.
In most cases, this is an unremarkable, well-worn path, but there are many points along the way at which a request can become stalled. With a map of the process, we can be clearer about which parts of the process are working, which are not, and whether there are any viable shortcuts to be taken.