Jurisdictional Assertions and Limits
The transfer and storage of data across different jurisdictions is a byproduct of the global, interoperable Internet. However, it can also result in pressures on legal systems designed for the pre-internet age. GNI is concerned that efforts to assert authority across borders and/or limit the free flow of data can impede privacy and freedom of expression, and have the potential to undermine the open Internet.
GNI has engaged on a range of issues that raise important questions about when governments can and should assert authority over data in ways that impact how companies store and process data abroad. These include decisions through which authorities in one country seek to influence the content visible in other countries, as well as data localization laws which seek to impede the ability of companies to transfer data freely across borders.
When it comes to law enforcement requests for data held by companies in other countries, GNI’s framework helps companies respond in ways that protect the privacy rights of their users. GNI also supports efforts to streamline and better-resource the existing Mutual Legal Assistance Treaty (MLAT) system, which allows law enforcement in one country to request evidence stored in other country in order to prosecute crime. In 2015, GNI commissioned a report, “Data Beyond Borders: Mutual Legal Assistance in the Internet Age,” which sets out key recommendations to update MLATs for the digital age. The report drew on the expertise of our multi-stakeholder membership and has been the basis of extensive advocacy directed at governments and international organizations.
GNI also believes it is important to consider complementary approaches that could allow companies who hold data abroad to respond directly, in certain instances, to governments whose laws and procedures meet relevant international human rights standards. GNI provided views on the essential criteria that such an approach must meet in its October 2017 submission to the European Commission, and provided further context in our subsequent July 2018 comment on proposed European e-evidence regulation.