Obtaining Evidencefrom the United States

OVERVIEWOVERVIEW METHODS OF OBTAINING EVIDENCEMETHODS OF OBTAINING EVIDENCE

• INFORMALINFORMAL police-to-police and other channelspolice-to-police and other channels Public sourcesPublic sources Voluntary cooperation Voluntary cooperation

• FORMALFORMAL letters rogatory (court-to-court)letters rogatory (court-to-court) MLATs, extradition treaties, and multilateral conventionsMLATs, extradition treaties, and multilateral conventions

• 2000 Council of Europe Cybercrime Convention; 2000 UN 2000 Council of Europe Cybercrime Convention; 2000 UN Convention on Transnational Organized Crime; 2003 UN Convention on Transnational Organized Crime; 2003 UN Convention Against CorruptionConvention Against Corruption

INFORMAL MEASURESINFORMAL MEASURES In US – Much is Publicly AvailableIn 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 Make the Web work for youyou

INFORMAL MEASURESINFORMAL MEASURES INFORMAL POLICE ASSISTANCE INFORMAL POLICE ASSISTANCE

• Interviews and Depositions of Voluntary Interviews and Depositions of Voluntary WitnessesWitnesses

• 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 MEASURESINFORMAL MEASURES OBTAIN DIRECT, INFORMAL ASSISTANCE OBTAIN DIRECT, INFORMAL ASSISTANCE

FROM THE FOLLOWING AGENCIES: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 Financial Intelligence Units via the Egmont Group, including FinCENGroup, including FinCEN

• Other agencies stationed abroadOther agencies stationed abroad

FORMAL MEASURESFORMAL MEASURES

Bilateral TreatiesBilateral Treaties ConventionsConventions

• UN Convention Against CorruptionUN Convention Against Corruption• UN Convention Against Transnational UN Convention Against Transnational

Organized CrimeOrganized Crime• UN Convention Against Illicit Traffic in UN Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Narcotic Drugs and Psychotropic Substances (Vienna Convention)Substances (Vienna Convention)

• Council of Europe Convention on Council of Europe Convention on CybercrimeCybercrime

Department of JusticeDepartment of JusticeCentral Authority – MLATs, Central Authority – MLATs,

Etc.Etc. Office of International AffairsOffice of International Affairs Part of the Criminal Division, DOJPart of the Criminal Division, DOJ Point of contact for all extradition Point of contact for all extradition

requests (federal, state, local)requests (federal, state, local) Six geographic teamsSix geographic teams Attorneys assigned overseas Attorneys assigned overseas +1 (202) 514-0000 (ask for your +1 (202) 514-0000 (ask for your

“country team”)“country team”)

FORMAL MEASURESFORMAL MEASURES

FORMAL REQUESTS ARE NEEDED TO FORMAL REQUESTS ARE NEEDED TO OBTAIN THE FOLLOWING:OBTAIN THE FOLLOWING:• Compelled EvidenceCompelled Evidence

Bank RecordsBank Records Searches and SeizuresSearches and Seizures Interviews and Depositions of Recalcitrant Interviews and Depositions of Recalcitrant

WitnessesWitnesses Restraint and Forfeiture of AssetsRestraint and Forfeiture of Assets

• Trial Evidence – depending on your own Trial Evidence – depending on your own admissibility rulesadmissibility rules

Identification of financial Identification of financial accounts and transactionsaccounts and transactions

U.S.-EU MLAT provides for this, as do bi-lateral U.S.-EU MLAT provides for this, as do bi-lateral treatiestreaties

U.S. uses FinCEN:U.S. uses FinCEN:• The FBI, DEA or ICE attaché can send your requests The FBI, DEA or ICE attaché can send your requests

to FinCEN (the U.S. financial intelligence unit) for to FinCEN (the U.S. financial intelligence unit) for assistance. assistance.

• FinCEN reserves this measure for significant cases.FinCEN reserves this measure for significant cases. Remember to use the Egmont Group to make Remember to use the Egmont Group to make

requests requests • Answers are for lead purposes only Answers are for lead purposes only • Obtain the bank records for use at trial by a formal Obtain the bank records for use at trial by a formal

request.request.

Electronic EvidenceElectronic Evidence

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

PreservationPreservation Act promptly upon identifying relevant accountsAct 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 Local Affiliate in foreign country of U.S. based

ISPs or hosting service.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 24/7 network; U.S. POC is the U.S. Department of Justice, Computer Crime and Intellectual of Justice, Computer Crime and Intellectual Property Section (“CCIPS”), +1-202-514-1026Property Section (“CCIPS”), +1-202-514-1026

• U.S. liaison prosecutor or law enforcement U.S. liaison prosecutor or law enforcement attachéattaché

Evidence from ProvidersEvidence from Providers

Content and non-content are Content and non-content are availableavailable

1212

New, received e-

mail

Old, received e-mail

Sent e-mail

Drafts

Access logs with IP address

Account creation information

RequirementsRequirements Non-Content (“meta-data”) Non-Content (“meta-data”)

• Can sometimes obtain on a voluntary basis, or Can sometimes obtain on a voluntary basis, or based on domestic legislation (Article 18 of the based on domestic legislation (Article 18 of the Budapest Convention).Budapest Convention).

• Can obtain through an MLAT request for a Can obtain through an MLAT request for a production order 18 USC 2703(c)(2))production order 18 USC 2703(c)(2))

Content of emailsContent of emails• Content cannot be obtained voluntarilyContent cannot be obtained voluntarily• Can obtain through an MLAT for warrant Can obtain through an MLAT for warrant

under 2703 (c)(1) and (d)under 2703 (c)(1) and (d)• Warrants are issued on probable cause.Warrants are issued on probable cause.• Probable cause – “information leading a Probable cause – “information leading a

reasonable person to believe that there is reasonable person to believe that there is evidence in the place to be searched.evidence in the place to be searched.

Emergency DisclosuresEmergency Disclosures

Applicable to terrorism or non-Applicable to terrorism or non-terrorism cases involving danger of terrorism cases involving danger of death or serious physical injury (18 death or serious physical injury (18 U.S.C. 2702) U.S.C. 2702)

Work with FBI, including legal Work with FBI, including legal attaché.attaché.

Can also work with 24/7 point of Can also work with 24/7 point of contact at CCIPS, or OIA.contact at CCIPS, or OIA.

Real time interception of Real time interception of telecommunications or computer telecommunications or computer

datadata Content - requires U.S. investigators to Content - requires U.S. investigators to

commence a U.S. investigation in which commence a U.S. investigation in which they obtain a order (often known as a they obtain a order (often known as a “wiretap” or “T-III“). They can often share “wiretap” or “T-III“). They can often share the evidence gathered.the evidence gathered.

Non-Content (connection data) is available Non-Content (connection data) is available even in a purely foreign crime and can be even in a purely foreign crime and can be obtained at a lower standard of proof. obtained at a lower standard of proof.

Probable CauseProbable CauseRequests must include:Requests must include: Precise description of facts - basis to Precise description of facts - basis to

believe that place to be searched believe that place to be searched contains evidence (or instrumentality) contains evidence (or instrumentality) of a crime.of a crime.

Source of the information and the Source of the information and the reliability of that source, if not evident.reliability of that source, if not evident.

Fairly recent events demonstrating Fairly recent events demonstrating that evidence is probably still in place that evidence is probably still in place to be searched.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 But keep it simple. Tell the story - do not not

use unnecessary professional or law use unnecessary professional or law enforcement terms, as that makes for a enforcement terms, as that makes for a more difficult translation.more difficult translation.

• Show that execution is appropriate; Show that execution is appropriate; however, you need however, you need notnot provide an provide an exhaustive account of the criminal exhaustive account of the criminal activity.activity.

• Show relevance to investigation or Show relevance to investigation or prosecution, and must meet probable prosecution, and must meet probable cause in some cases.cause in some cases.

Some frequent but avoidable Some frequent but avoidable problems:problems:

ClarityClarity – Focus on the crime and why the – Focus on the crime and why the assistance proves the crime. Courts do not assistance proves the crime. Courts do not need to know everything you know – just need to know everything you know – just what is needed for the requestwhat is needed for the request

Confidentiality Confidentiality - should be prominently - should be prominently mentioned where needed - U.S. court mentioned where needed - U.S. court records are typically public records are typically public

UrgencyUrgency - where necessary, this should be - where necessary, this should be very visible in requestvery visible in request

Consider timingConsider timingAssuming you must make a formal Assuming you must make a formal

request:request: Make the request as far in advance as possible.Make the request as far in advance as possible.

Be mindful of your statute of limitations.Be mindful of your statute of limitations.

Be mindful of trial and discovery/disclosure Be mindful of trial and discovery/disclosure deadlines.deadlines.

Be realistic given the amount of information Be realistic given the amount of information you request; ask for too much and you may get you request; ask for too much and you may get nothing in time.nothing in time.

Limitations on assistance:Limitations on assistance:

De minimis offenses;De minimis offenses; ““Fishing expeditions”;Fishing expeditions”; Deferred assistance if interferes with Deferred assistance if interferes with

U.S. case;U.S. case; Conditions on use (formal assurances Conditions on use (formal assurances

may be sought and, if given, must be may be sought and, if given, must be complied with);complied with);

Other grounds for refusal (e.g. hate Other grounds for refusal (e.g. hate speech)speech)

QUESTIONS?QUESTIONS?

Jason Carter (OIA-DOJ)Jason Carter (OIA-DOJ) Jason.Carter@usdoj.gov +1 202 305 9272+1 202 305 9272

Michael Olmsted (OIA/Brussels/Eurojust)Michael Olmsted (OIA/Brussels/Eurojust) Michael.Olmsted@usdoj.gov OlmstedMC@state.gov +32-2-811-4257+32-2-811-4257