Where electronic evidence is stored in foreign jurisdictions, mutual legal assistance is the primary means to obtain evidence in criminal matters. In 2013 and 2014, the Council of Europe Cybercrime Convention Committee (T-CY) assessed the mutual legal assistance provisions of the Budapest Convention, and produced a Report with a set of recommendations to improve the efficiency of mutual legal assistance (MLA).
The report concludes that efficient mutual legal assistance is critical in establishing effective measures against cybercrime and other offences involving electronic evidence, given the transnational and volatile nature of electronic evidence. The report also conveys that current MLA procedures are too complex, lengthy and resource intensive, and therefore inefficient.
Why are current MLA procedures inefficient?
The T-CY Report demonstrates that response times to MLA requests range from 6-24 months, and therefore many requests and investigations are abandoned.
Furthermore, parties appear not to make full use of the opportunities offered by the Budapest Convention on Cybercrime, as well as other agreements for the purposes of effective mutual legal assistance related to cybercrime and electronic evidence.
The report also concludes that not all types of data are needed with the same frequency or urgency.
Subscriber information is the type of data most often requested, and the large amount of requests for this information slows down the MLA process in general. Subscriber information is less privacy sensitive than traffic or content data, and is often needed at an early stage of an investigation. A Protocol could therefore be established to ensure expedited responses to MLA requests for subscriber information.
Provisions for more effective mutual legal assistance
The T-CY Report contains a set of recommendations to achieve more effective mutual legal assistance. These include responsibilities for domestic authorities as well as recommendations to be addressed through a Protocol to the Budapest Convention.
Responsibilities for domestic authorities
Parties should consider:
- Fully applying the provisions of the Budapest Convention on Cybercrime, including preservation powers.
- Establishing mechanisms to monitor the efficiency of the MLA process related to cybercrime and electronic evidence.
- Allocating more technology-literate staff for MLA.
- Providing better training to enhance MLA, police-to-police and other forms of international cooperation.
- Strengthening the role of 24/7 points of contact.
Recommendations to be addressed through a Protocol to the Budapest Convention
Parties should consider:
- Allowing for the expedited disclosure of the identity and physical address of the subscriber of a specific IP address or user account.
- The possibility and scope of an international production order to be directly sent by the authorities of a Party to the law enforcement authorities of another Party.
- Enhancing direct cooperation between judicial authorities in mutual legal assistance requests.
- The establishment of joint investigation teams between Parties.
- Allowing for requests (in particular preservation requests) to be sent in English language.
The T-CY Report concludes that current mutual legal assistance procedures are inefficient. Through the actions of domestic authorities and by applying a Protocol to the Budapest Convention, the efficiency and effectiveness of MLA procedures could be increased.