Mutual legal assistance & other mechanisms for accessing extraterritorially located data

Abstract

This article discusses the role of Mutual Legal Assistance (MLA) and other established mechanisms of international cooperation in the fight against cyber crime. The analysis is limited to mechanisms facilitating access to extraterritorially located data. After a brief account on the legal prerequisites of successful fight against cyber crime, the article proceeds to exploring both traditional as well as alternative cooperation mechanisms for transborder data access. Given the realistic assessment that the amount of digital evidence to be accessed extraterritorially will only increase with time, the article focuses on the difficulties in accessing data under the current MLA procedures. The article reiterates that States are in need for more time-effective measures for transborder data access. Unless the identified inefficiencies pertaining to MLA are addressed, the traditional focus on territoriality, and assuming the other State being the primary counterpart for carrying out investigative measures requiring transborder access to evidence, will continue to gradually shift to more operational mechanisms that do not necessarily require the prior authorisation of the State where the data is located.