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Pretend someone in England (United Kingdom) sends a message containing racist words to another person in the same jurisdiction. They are later reported to the police and arrested, I would assume under the Malicious Communications Act.

The police and prosecution need the messages to ensure a successful prosecution, so they contact an American company called Snapchat and request the messages using a Mutual Legal Assistance Treaty request (MLAT request).

I am curious to understand how an MLAT, or any other approach I might not know about, would work in this scenario. This is because in the United States of America there is no crime when someone uses racist words (spoken in general not directed at a person) online.

Dual criminality: The requirement for dual criminality is limited to certain types of requests. In general, a conduct-based approach is taken, i.e., the conduct underlying the alleged offence is considered, rather than seeking to match the exact same offence category in both jurisdictions.

Based on the above MLA report, it seems there is no exact same offence and there is no similar conduct underlying the alleged offence...

Would the United States of America, and subsequently the company that owns the application called Snapchat, have to comply with the MLAT request requesting the messages sent and other information?

Edits:

  • Assume a forensic examination of the device is no longer possible, so the only option to obtain those messages is from Snapchat.
  • Freedom of Speech is protected by the USA's Constitution.
  • I did not think the judge would allow a Search Warrant since it is not a crime in America, nor is the conduct similar to a crime. This I believe is what would also stop the MLAT request being accepted...?
  • Referring to the above, have I perhaps misunderstood the "There is no dual criminality requirement in the US-UK MLAT" answer?
  • I did think the mentality of the US-UK MLAT was how the USA would deal with it, should the same thing have happened in the USA. If that is true, then surely the answer is nothing, as it is not a crime and there is no offence in America that is similar in nature.
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    Your Mal-Comms scenario doesn't need an MLAT as the evidence would come from a digital forensic examination of the phone(s).
    – user35069
    Sep 1, 2023 at 21:00
  • @Rick Pretend they cannot get access to the phone, it broke, was somehow destroyed etc... Now they do need to get data from Snapchat's servers to prove it was sent by the defendant and not somebody else. Sep 1, 2023 at 21:26

1 Answer 1

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There is no dual criminality requirement in the US-UK MLAT

Well, the above statement is not strictly true: there is dual-criminality if the offence is charged under military law (Article 3 1(c)(ii) but not otherwise.

The US might reject the request under Article 3 1(a) as “contrary to important public policy.” However, this is discretionary and before rejecting the request, the US is required to confer with the UK to see if conditional assistance might be provided.

In the particular case, providing assistance would require a search warrant in the US which requires showing probable cause that satisfies a US judge.

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  • Very interesting, but do you have proof of this statement? I am very surprised that a country like America, which always forces MLAT requests through the Supreme Court, would just accept valid MLAT requests without requiring dual criminality (or similar conduct). Sorry but what a logical contradiction?! Sep 1, 2023 at 22:18
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    @user5623335 I linked the treaty, you can read it yourself. Note this is not an extradition treaty where dual criminality is a standard inclusion.
    – Dale M
    Sep 2, 2023 at 0:00
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    I believe the Constitution is "important public policy"? It would clearly be unconstitutional for this law to be enforced in the US, so it seems that it would also be unconstitutional for US courts to help another country enforce the law, or it would at least fall under the public policy exemption?
    – Someone
    Sep 2, 2023 at 5:06
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    @Someone it is quite likely that the treaty would be invoked long before any charges were laid - it is a treaty about assisting investigations after all.
    – Dale M
    Sep 2, 2023 at 12:14
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    @Someone: enforcing the constitution against another country is not a public policy, let alone an important one.
    – jmoreno
    Sep 2, 2023 at 15:36

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