To address challenges in requesting electronic evidence from foreign jurisdictions and overseas service providers, UNODC supported Member States through a cross-regional legislative roundtable from 25 to 27 February 2024 as part of the project “Support to addressing the risk of terrorism and to increasing security in the Maldives”, carried out with funding by the European Union.
With a reported 85 per cent of criminal cases now involving some form of digital data, it is safe to say that technology is a salient feature of our collective justice systems. Stakeholders worldwide are becoming increasingly aware of the importance of ensuring that this data – eventual electronic evidence – is located, acquired and admitted into criminal justice investigations and prosecutions. Further, with this type of data becoming more common, countries are exploring approaches outside of traditional mutual legal assistance (MLA) processes in requesting potential electronic evidence, most notably via direct requests to service providers for voluntary data disclosure.
At the same time, however, there are still multiple challenges. While a direct request can be sent, this does not guarantee an overseas service provider will comply. They are frequently rejected for a variety of reasons, and many providers require any request for data disclosure to be submitted through formal legal channels. In other words, they will not voluntarily disclose anything to officials based outside of the jurisdiction in which they store data.
Though MLA remains the primary method for obtaining electronic evidence, it is widely acknowledged that the present system can be complex and bureaucratic, which does not resonate with the rapid nature of digital transborder crime and the lack of territorial boundaries on the Internet. If these issues are not addressed, they can compound and create situations in which States receiving requests are unable to respond positively, requesting States do not receive the electronic evidence they need, and terrorist and other criminal groups are able to evade justice.
In response, the cross-regional legislative roundtable, held in the Greater Malé Area and attended by eight South Asian and South-East Asian countries, raised the awareness of participating central authority representatives and other relevant officials involved in sending and receiving MLA requests for electronic evidence of the numerous UNODC tools, publications and products developed to support this process. This was then followed by a detailed practical case exercise to equip participants with the skills and knowledge needed to apply these tools in their day-to-day work.
Each delegation was also invited to discuss key aspects of their specific electronic evidence and international cooperation country context, including the relevant legislative frameworks, case examples, and ongoing challenges in this regard. These national contributions were bolstered by mutual exchanges of good practices, lessons learned and opportunities for cooperation, within and across geographic regions. In-depth presentations from key stakeholders, including the United States Department of Justice, as well as service providers Kodex and Meta, also enriched event sessions, with valuable perspectives from data request recipients shedding light on the essential criteria for achieving success with these requests.
By raising awareness, providing tools, and fostering international cooperation, UNODC strives to ensure that the complexities of modern crime do not impede the swift delivery of justice, and that nations are empowered to navigate the evolving landscape of digital transborder crime.
This article was produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union.
