A majority of criminal investigations in the modern era necessitate law enforcement access to electronic evidence stored extra-territorially. The conventional methods of compelling the presentation of evidence available for investigative agencies often fail when the evidence is not present within the territorial boundaries of the state.
The crux of the issue lies in the age old international law tenet of territorial sovereignty.Investigating crimes is a sovereign act and it cannot be exercised in the territory of another country without that country’s consent or through a permissive principle of extra-territorial jurisdiction. Certain countries have explicit statutory provisions which disallow companies incorporated in their territory from disclosing data to foreign jurisdictions. The United States of America, which houses most of the leading technological firms like Google, Apple, Microsoft, Facebook, and Whatsapp, has this requirement.
This necessitates a consent based international model for cross border data sharing as a completely ad-hoc system of requests for each investigation would be ineffective. Towards this, Mutual Legal Assistance Treaties (MLATs) are the most widely used method for cross border data sharing, with letters rogatory, emergency requests and informal requests being other methods available to most investigators. While recent gambits towards ring-fencing the data within Indian shores might alter the contours of the debate, a sustainable long-term strategy requires a coherent negotiation strategy that enables co-operation with a range of international partners.
This negotiation strategy needs to be underscored by domestic safeguards that ensure human rights guarantees in compliance with international standards, robust identification and augmentation of capacity and clear articulation of how India’s strategy lines up with the existing tenets of International law. This report studies the workings of the Mutual Legal Assistance Treaty (MLAT) between the USA and India and identifies hurdles in its existing form, culls out suggestions for improvement and explores how recent legislative developments, such as the CLOUD Act might alter the landscape.
The path forward lies in undertaking process based reforms within India with an eye on leveraging these developments to articulate a strategically beneficial when negotiating with external partners.As the nature of policing changes to a model that increasingly relies on electronic evidence, India needs to ensure that it’s technical strides made in accessing this evidence is not held back by the lack of an enabling policy environment. While the data localisation provisions introduced in the draft Personal Data Protection Bill may alter the landscape once it becomes law, this report retains its relevance in terms of guiding the processes, content and capacity to adequately manoeuvre the present conflict of laws situation and accessing data not belonging to Indians that may be needed for criminal investigations. As a disclaimer, the report and graphics contained within it have been drafted using publicly available information and may not reflect real world practices. The full report can be accessed here.