Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)


There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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The US CLOUD Act and EU Law

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 by Alexandre Veronese, Professor at University of Brasília

In March 2018, the President of the United States of America signed into Law a Bill approved by the Congress, which amended two parts of the US Code, the consolidation of the federal statutory norms of the country. The Clarifying Lawful Overseas Use of Data Act – CLOUD Act – was the third version of two preceding bills. Those prior bills tried to solve a grave contemporary issue: the difficulty to access electronic data that could be necessary to criminal investigations and prosecution. The new CLOUD Act changes mainly two passages of the US Code. It creates the possibility that the United States and foreign countries could sign executive agreements to grant mutual assistance in order to authorize the gathering of overseas data. In addition, the CLOUD Act creates standards to those agreements.

The United States of America have a long standing right to due process of law entrenched in the Fourth Amendment of its Constitution. The debate about the limits to access information captured by the means of new ways of communication is rather old in the US. The Federal Wiretap Act came to the US Code amidst the Omnibus Crime Control and Safe Streets Act of 1968. It was a huge alteration of the Title 18 of US Code, which is the Crimes and Criminal Procedures federal statutory law. Therefore, the federal statutory law received provisions that could regulate the lawful wiretapping in criminal investigations and the use of them between agencies and jurisdictions. Notwithstanding, the passing of time and the evolution of technologies showed the aging of those legal norms. A lot of the information that matters to seize, in order to archive effective evidence to use in investigations, came to be electronic. It was necessary to modify the Wiretap Act and, in 1986, it came the Electronic Communications Privacy Act. The new Act modernized the Law and it regulated the criminal features related to stored electronic information – the Stored Communications Act. The Patriot Act (2001 and 2006) brought to light some provisions regarding to overseas information that were made more detailed with the amendments signed into law in 2008.
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