[Congressional Record Volume 155, Number 92 (Thursday, June 18, 2009)]
[Senate]
[Pages S6809-S6810]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WHITEHOUSE (for himself, Mr. Sessions, and Mr. Leahy):
  S. 1289. A bill to improve title 18 of the United States Code; to the 
Committee on the Judiciary.
  Mr. WHITEHOUSE. Mr. President, I rise to urge my colleagues to 
support the Foreign Evidence Request Efficiency Act, which I have 
introduced on behalf of myself and the Chairman and Ranking Members of 
the Judiciary Committee, Senators Leahy and Sessions. It has been a 
pleasure to work with them on this truly bipartisan effort, and I am 
grateful for their support.
  Chairman Leahy, Ranking Member Sessions, and I have all served as 
prosecutors. I can say with no exaggeration that few responsibilities 
are more important to the rule of law, to the security of our 
communities, and to the rights and freedoms that we enjoy as Americans. 
I served as the U.S. Attorney for Rhode Island--Senator Sessions served 
in that capacity in Alabama--and I know we both will always remember 
the feeling of standing up in court to say: ``Your Honor, may it please 
the Court, I represent the United States of America.'' It was the honor 
of a lifetime.
  As my colleagues know, the United States routinely helps foreign law 
enforcement agencies as they pursue criminal conduct involving activity 
outside their borders, including inside the United States, and they do 
the same for us. This is exactly as it should be. As the world grows 
more interconnected and crime becomes increasingly global, it becomes 
all the more important for law enforcement agencies in the United 
States and around the world to work together to bring criminals to 
justice. Otherwise, it would be very hard to build cases against 
international organized crime organizations, drug cartels, purveyors of 
child pornography on the internet, and other criminal threats from 
outside our borders.
  One way that a law enforcement agency provides assistance to another 
is by gathering evidence from within its borders that a foreign law 
enforcement agency needs to prosecute a case. The United States 
routinely completes requests submitted to it by foreign law enforcement 
agencies just as it receives comparable assistance when it makes 
evidence requests in foreign countries. For example, let's assume that 
Spanish authorities are investigating a complicated financial fraud 
that is being conducted over the internet, apparently from a base in 
the United States. After conducting their investigation in Spain, the 
Spanish authorities submit a request to the United States for financial 
records, internet records, and various other kinds of evidence. U.S. 
Attorneys review the requests and then seek warrants for the evidence 
as appropriate. When the evidence is collected, the United States 
transmits it to Spanish authorities, leading to prosecution in Spanish 
courts.
  This process sounds quite simple, but unfortunately in practice it is 
extremely cumbersome. This is because under the existing rules, any 
foreign evidence request must be split up and sent to each district 
where the evidence exists. So take the Spanish example I just gave, and 
imagine that the financial records sought are in banks in six different 
federal judicial districts, that the internet records are in another 
five federal judicial districts, and that other documentary evidence is 
spread over another five districts. Under existing law, sixteen 
different U.S. Attorneys' Offices would have to work on the evidence 
request. This is incredibly inefficient and burdensome for U.S. 
Attorneys across the country.
  The Foreign Evidence Request Efficiency Act would end this problem by 
allowing such foreign evidence requests to be handled centrally, by a 
single or more limited number of U.S. Attorneys offices as appropriate. 
Why, as in my example, should sixteen U.S. Attorneys' Offices have to 
deal with an evidence request that one office can coordinate? Simply 
put, this reform would make life easier for our U.S. Attorneys. We owe 
them no less.

[[Page S6810]]

  Of course, respect for civil liberties demands that we not suddenly 
change the types of evidence that foreign governments may receive from 
the United States or reduce the role of courts as gatekeepers for 
searches. The Foreign Evidence Request Efficiency Act would leave those 
important protections in place, while simultaneously reducing the 
paperwork that the cumbersome existing process imposes on our U.S. 
Attorneys.
  Two points merit emphasis. First, by making it easier for U.S. 
Attorneys to collect evidence, the United States can respond more 
quickly to foreign requests for evidence. Setting a high standard of 
responsiveness will allow the United States to urge that foreign 
authorities respond to our requests for evidence with comparable speed. 
The United States will benefit if foreign governments cannot use our 
own delay to justify responding slowly to our requests. Second, the 
Foreign Evidence Request Efficiency Act would not change the United 
States' obligations to foreign nations. It would only make it easier 
for the United States to respond to these requests by allowing them to 
be centralized and by putting the process for handling them within a 
clear statutory system.
  I urge my colleagues to act promptly on this bipartisan legislation. 
I would like to thank the excellent attorneys in the Department of 
Justice who have worked with me on this legislation, and would like to 
request unanimous consent to insert their letter of support into the 
Congressional Record. I again thank Chairman Leahy and Ranking Member 
Sessions for their support.
  Mr. President, I ask unanimous consent that a letter of support be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                 Washington, D.C., March 27, 2009.
     Hon. Sheldon Whitehouse,
     U.S. Senate,
     Washington, DC.
       Dear Senator Whitehouse: Per your request, the Department 
     of Justice (the Department) has examined the draft bill 
     entitled ``To improve Title 18 of the United States Code''. 
     The Department strongly supports early introduction and 
     consideration of the proposed legislation ``[t]o improve 
     title 18 of the United States Code'' which clarifies 
     procedures for executing and fulfilling foreign requests for 
     evidence. We firmly believe this legislation will facilitate 
     the ability of the United States to assist foreign 
     investigations, prosecutions and related proceedings 
     involving organized crime, trafficking in child pornography, 
     intellectual property violations, identity theft, and all 
     other serious crimes. The ability of the United States to 
     assist foreign authorities to obtain evidence and other 
     assistance in an effective and timely manner will improve 
     reciprocal treatment when we seek assistance in foreign 
     countries in all types of U.S. criminal investigations. Thus, 
     facilitating our ability to provide assistance to foreign 
     investigators has a direct impact on the safety and security 
     of Americans.
       The proposed legislation will complement the existing 
     authority in current statutes and self-executing Mutual Legal 
     Assistance Treaties and multilateral conventions. It will 
     greatly facilitate the ability of the U.S. government to meet 
     its obligations under these valuable international 
     instruments and will ensure that we can provide, at our 
     discretion, similar assistance to our non-treaty foreign law 
     enforcement partners. In addition, the filing provision of 
     the new section 3512 will permit the U.S. government to 
     execute foreign assistance requests with greater efficiency 
     than at present, thereby contributing to the effective 
     administration of the federal courts and the Offices of the 
     United States Attorneys.
       The statutes that currently govern the obtaining of 
     electronic and other evidence based upon a foreign request 
     for evidence have two limitations. First, existing law does 
     not make it clear which district court can participate in 
     fulfilling legitimate foreign requests for assistance in 
     criminal and terrorism investigations. The sole statute 
     regarding international requests for evidence is 28 U.S.C. 
     Sec. 1782, which was designed essentially to accommodate the 
     execution of letters rogatory in civil cases via the issuance 
     of subpoenas. Under the statute, the Department is largely 
     relegated to civil practice rules that require prosecutors to 
     file in every district in which evidence or a witness may be 
     found. In complex cases, this inefficiency means involving 
     several U.S. Attorneys' Offices and District Courts in a 
     single case. Even in less complex cases, referring the 
     requests out to the field wastes scarce attorney resources 
     and creates delays.
       Second, in 2001, Congress changed the wording of 18 U.S.C. 
     Sec. 2703 in a way that inadvertently introduced confusion in 
     routine mutual legal assistance cases. For example, section 
     2703(a) requires that the court issuing a search warrant for 
     stored electronic evidence have ``jurisdiction over the 
     offense''. As a U.S. court often has no jurisdiction to try a 
     foreign offender, the wording of 2703(a) needlessly 
     complicates the use of this sort of court process.
       The proposed legislation addresses both of these 
     difficulties by clarifying which courts have jurisdiction and 
     can respond to appropriate foreign requests for evidence in 
     criminal investigations. Under this proposal, a legitimate 
     request for assistance can be filed in the District of 
     Columbia, in any of the districts in which any of several 
     records or witnesses are located, or in any district in which 
     there is a related federal criminal case. The proposal would 
     clarify the ambiguity in section 2703 by re-articulating the 
     bases for courts to act without changing any of the 
     procedural safeguards present in U.S. law.
       We note that the proposed legislation would not in any way 
     change the existing standards that the government must meet 
     in order to obtain evidence, nor would it alter any existing 
     safeguards on the proper exercise of such authority. 
     Moreover, it would not expand the nature or kind of 
     assistance the Department provides to foreign law enforcement 
     agencies. Indeed, the proposed legislation would not alter 
     U.S. obligations or authorities under existing bilateral and 
     multilateral law enforcement treaties. Instead, by 
     streamlining procedures, the amendment would eliminate 
     needless confusion and wasted time in the government's 
     response to those requests.
       The proposed legislation references ``provider of 
     electronic communication service''. The current reference, 
     however, fails to address the presence of wire services, 
     though 18 U.S.C. 3124(a), (b) references ``provider of wire 
     or electronic service''. To provide consistency throughout 
     Title 18, United States Code, and to cover more fully the 
     providers involved, the Department recommends adding ``wire 
     or'' before ``electronic communication service'' each place 
     it appears.
       Thank you for the opportunity to comment on this proposed 
     legislation. The Office of Management and Budget has advised 
     that there is no objection from the standpoint of the 
     Administration's program to the submission of this letter.
           Sincerely,
                                                  M. Faith Burton,
                                Acting Assistant Attorney General.
                                 ______