Obtaining Evidence from the United States

OVERVIEW METHODS OF OBTAINING EVIDENCE METHODS OF OBTAINING EVIDENCE INFORMALINFORMAL police-to-police and other channels police-to-police and other channels Public sources Public sources Voluntary cooperation Voluntary cooperation FORMALFORMAL letters rogatory (court-to-court) letters rogatory (court-to-court) MLATs, extradition treaties, and multilateral conventions MLATs, extradition treaties, and multilateral conventions 2000 Council of Europe Cybercrime Convention; 2000 UN Convention on Transnational Organized Crime; 2003 UN Convention Against Corruption2000 Council of Europe Cybercrime Convention; 2000 UN Convention on Transnational Organized Crime; 2003 UN Convention Against Corruption

INFORMAL MEASURES In US – Much is Publicly Available In US – Much is Publicly Available Court RecordsCourt Records Property Records – On-LineProperty Records – On-Line Corporate RecordsCorporate Records Tax Records for CharitiesTax Records for Charities Political DonationsPolitical Donations Telephone Numbers (sometimes)Telephone Numbers (sometimes) Make the Web work for you Make the Web work for you

INFORMAL MEASURES INFORMAL POLICE ASSISTANCE INFORMAL POLICE ASSISTANCE Interviews and Depositions of Voluntary WitnessesInterviews and Depositions of Voluntary Witnesses Hotel RegistersHotel Registers Car Ownership InformationCar Ownership Information Location of IndividualsLocation of Individuals Ownership of PropertyOwnership of Property Criminal HistoriesCriminal Histories Locating Items, i.e., cars, art workLocating Items, i.e., cars, art work

INFORMAL MEASURES OBTAIN DIRECT, INFORMAL ASSISTANCE FROM THE FOLLOWING AGENCIES: OBTAIN DIRECT, INFORMAL ASSISTANCE FROM THE FOLLOWING AGENCIES: INTERPOLINTERPOL SEC and other regulatory agenciesSEC and other regulatory agencies FBI Legal AttachéFBI Legal Attaché DEA Country AttachéDEA Country Attaché Homeland Security AttachésHomeland Security Attachés Immigration and Customs Enforcement (ICE or HSI) Immigration and Customs Enforcement (ICE or HSI) Customs and Border Protection (CBP) Customs and Border Protection (CBP) Financial Intelligence Units via the Egmont Group, including FinCENFinancial Intelligence Units via the Egmont Group, including FinCEN Other agencies stationed abroadOther agencies stationed abroad

FORMAL MEASURES Bilateral Treaties Bilateral Treaties Conventions Conventions UN Convention Against CorruptionUN Convention Against Corruption UN Convention Against Transnational Organized CrimeUN Convention Against Transnational Organized Crime UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention)UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention) Council of Europe Convention on CybercrimeCouncil of Europe Convention on Cybercrime

Department of Justice Central Authority – MLATs, Etc. Office of International Affairs Office of International Affairs Part of the Criminal Division, DOJ Part of the Criminal Division, DOJ Point of contact for all extradition requests (federal, state, local) Point of contact for all extradition requests (federal, state, local) Six geographic teams Six geographic teams Attorneys assigned overseas Attorneys assigned overseas +1 (202) (ask for your “country team”) +1 (202) (ask for your “country team”)

FORMAL MEASURES FORMAL REQUESTS ARE NEEDED TO OBTAIN THE FOLLOWING: FORMAL REQUESTS ARE NEEDED TO OBTAIN THE FOLLOWING: Compelled EvidenceCompelled Evidence Bank Records Bank Records Searches and Seizures Searches and Seizures Interviews and Depositions of Recalcitrant Witnesses Interviews and Depositions of Recalcitrant Witnesses Restraint and Forfeiture of Assets Restraint and Forfeiture of Assets Trial Evidence – depending on your own admissibility rulesTrial Evidence – depending on your own admissibility rules

Identification of financial accounts and transactions U.S.-EU MLAT provides for this, as do bi-lateral treaties U.S.-EU MLAT provides for this, as do bi-lateral treaties U.S. uses FinCEN: U.S. uses FinCEN: The FBI, DEA or ICE attaché can send your requests to FinCEN (the U.S. financial intelligence unit) for assistance.The FBI, DEA or ICE attaché can send your requests to FinCEN (the U.S. financial intelligence unit) for assistance. FinCEN reserves this measure for significant cases.FinCEN reserves this measure for significant cases. Remember to use the Egmont Group to make requests Remember to use the Egmont Group to make requests Answers are for lead purposes onlyAnswers are for lead purposes only Obtain the bank records for use at trial by a formal request.Obtain the bank records for use at trial by a formal request.

Electronic Evidence Useful Guides are available for law enforcement use only.

Preservation Act promptly upon identifying relevant accounts Act promptly upon identifying relevant accounts Direct request to U.S. ISP or hosting service. Direct request to U.S. ISP or hosting service. Local Affiliate in foreign country of U.S. based ISPs or hosting service. Local Affiliate in foreign country of U.S. based ISPs or hosting service. Through U.S. government points of contact: Through U.S. government points of contact: 24/7 network; U.S. POC is the U.S. Department of Justice, Computer Crime and Intellectual Property Section (“CCIPS”), /7 network; U.S. POC is the U.S. Department of Justice, Computer Crime and Intellectual Property Section (“CCIPS”), U.S. liaison prosecutor or law enforcement attachéU.S. liaison prosecutor or law enforcement attaché

Evidence from Providers Content and non-content are available Content and non-content are available 12 New, received e- mail Old, received Sent Drafts Access logs with IP address Account creation information

Requirements Non-Content (“meta-data”) Non-Content (“meta-data”) Can sometimes obtain on a voluntary basis, or based on domestic legislation (Article 18 of the Budapest Convention).Can sometimes obtain on a voluntary basis, or based on domestic legislation (Article 18 of the Budapest Convention). Can obtain through an MLAT request for a production order 18 USC 2703(c)(2))Can obtain through an MLAT request for a production order 18 USC 2703(c)(2)) Content of s Content of s Content cannot be obtained voluntarilyContent cannot be obtained voluntarily Can obtain through an MLAT for warrant under 2703 (c)(1) and (d)Can obtain through an MLAT for warrant under 2703 (c)(1) and (d) Warrants are issued on probable cause.Warrants are issued on probable cause. Probable cause – “information leading a reasonable person to believe that there is evidence in the place to be searched.Probable cause – “information leading a reasonable person to believe that there is evidence in the place to be searched.

Emergency Disclosures Applicable to terrorism or non-terrorism cases involving danger of death or serious physical injury (18 U.S.C. 2702) Applicable to terrorism or non-terrorism cases involving danger of death or serious physical injury (18 U.S.C. 2702) Work with FBI, including legal attaché. Work with FBI, including legal attaché. Can also work with 24/7 point of contact at CCIPS, or OIA. Can also work with 24/7 point of contact at CCIPS, or OIA.

Real time interception of telecommunications or computer data Content - requires U.S. investigators to commence a U.S. investigation in which they obtain a order (often known as a “wiretap” or “T-III“). They can often share the evidence gathered. Content - requires U.S. investigators to commence a U.S. investigation in which they obtain a order (often known as a “wiretap” or “T-III“). They can often share the evidence gathered. Non-Content (connection data) is available even in a purely foreign crime and can be obtained at a lower standard of proof. Non-Content (connection data) is available even in a purely foreign crime and can be obtained at a lower standard of proof.

Probable Cause Requests must include: Precise description of facts - basis to believe that place to be searched contains evidence (or instrumentality) of a crime. Precise description of facts - basis to believe that place to be searched contains evidence (or instrumentality) of a crime. Source of the information and the reliability of that source, if not evident. Source of the information and the reliability of that source, if not evident. Fairly recent events demonstrating that evidence is probably still in place to be searched. Fairly recent events demonstrating that evidence is probably still in place to be searched. Conclusions are not sufficient. Conclusions are not sufficient.

Meet requirements of treaty or convention. Meet requirements of treaty or convention. But keep it simple. Tell the story - do not use unnecessary professional or law enforcement terms, as that makes for a more difficult translation.But keep it simple. Tell the story - do not use unnecessary professional or law enforcement terms, as that makes for a more difficult translation. Show that execution is appropriate; however, you need not provide an exhaustive account of the criminal activity.Show that execution is appropriate; however, you need not provide an exhaustive account of the criminal activity. Show relevance to investigation or prosecution, and must meet probable cause in some cases.Show relevance to investigation or prosecution, and must meet probable cause in some cases.

Some frequent but avoidable problems: Clarity – Focus on the crime and why the assistance proves the crime. Courts do not need to know everything you know – just what is needed for the request Clarity – Focus on the crime and why the assistance proves the crime. Courts do not need to know everything you know – just what is needed for the request Confidentiality - should be prominently mentioned where needed - U.S. court records are typically public Confidentiality - should be prominently mentioned where needed - U.S. court records are typically public Urgency - where necessary, this should be very visible in request Urgency - where necessary, this should be very visible in request

Consider timing Assuming you must make a formal request:  Make the request as far in advance as possible.  Be mindful of your statute of limitations.  Be mindful of trial and discovery/disclosure deadlines.  Be realistic given the amount of information you request; ask for too much and you may get nothing in time.

Limitations on assistance: De minimis offenses; De minimis offenses; “Fishing expeditions”; “Fishing expeditions”; Deferred assistance if interferes with U.S. case; Deferred assistance if interferes with U.S. case; Conditions on use (formal assurances may be sought and, if given, must be complied with); Conditions on use (formal assurances may be sought and, if given, must be complied with); Other grounds for refusal (e.g. hate speech) Other grounds for refusal (e.g. hate speech)

QUESTIONS? Jason Carter (OIA-DOJ) Jason Carter (OIA-DOJ) Michael Olmsted (OIA/Brussels/Eurojust) Michael Olmsted (OIA/Brussels/Eurojust)