A. Osula: Mutual Legal Assistance & Other Mechanisms ... 43
MUTUAL LEGAL ASSISTANCE & OTHER
MECHANISMS FOR ACCESSING
EXTRATERRITORIALLY LOCATED DATA
by
ANNA-MARIA OSULA
*
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.
KEY WORDS
Mutual Legal Assistance, Council of Europe, Convention of Cybercrime,
Transborder Access, Cybercrime Investigations
*
Anna-Maria Osula, PhD candidate at Tartu University Faculty of Law, Estonia; researcher at
NATO CCD COE, Estonia; lecturer at Tallinn University of Technology, Estonia.
The views expressed herein are those of the author and do not reflect the policy or the opinion
of any other entity.
