[Congressional Record Volume 155, Number 139 (Wednesday, September 30, 2009)]
[House]
[Pages H10092-H10094]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            FOREIGN EVIDENCE REQUEST EFFICIENCY ACT OF 2009

  Mr. SCHIFF. Mr. Speaker, I move to suspend the rules and pass the 
bill (S. 1289) to improve title 18 of the United States Code.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                S. 1289

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Foreign Evidence Request 
     Efficiency Act of 2009''.

     SEC. 2. IMPROVEMENTS TO TITLE 18.

       Title 18 of the United States Code is amended--
       (1) in section 2703--
       (A) in subsection (a), by striking ``by a court with 
     jurisdiction over the offense under investigation or an 
     equivalent State warrant'' and inserting ``(or, in the case 
     of a State court, issued using State warrant procedures) by a 
     court of competent jurisdiction'';
       (B) in subsection (b)(1)(A), by striking ``by a court with 
     jurisdiction over the offense under investigation or an 
     equivalent State warrant'' and inserting ``(or, in the case 
     of a State court, issued using State warrant procedures) by a 
     court of competent jurisdiction''; and
       (C) in subsection (c)(1)(A), by striking ``by a court with 
     jurisdiction over the offense under investigation or an 
     equivalent State warrant'' and inserting ``(or, in the case 
     of a State court, issued using State warrant procedures) by a 
     court of competent jurisdiction'';
       (2) in section 2711(3), by striking ``has the meaning 
     assigned by section 3127, and includes any Federal court 
     within that definition, without geographic limitation; and'' 
     and inserting the following: ``includes--
       ``(A) any district court of the United States (including a 
     magistrate judge of such a court) or any United States court 
     of appeals that--
       ``(i) has jurisdiction over the offense being investigated;
       ``(ii) is in or for a district in which the provider of a 
     wire or electronic communication service is located or in 
     which the wire or electronic communications, records, or 
     other information are stored; or
       ``(iii) is acting on a request for foreign assistance 
     pursuant to section 3512 of this title; or
       ``(B) a court of general criminal jurisdiction of a State 
     authorized by the law of that State to issue search warrants; 
     and'';
       (3) in section 3127(2)(A), by striking ``having 
     jurisdiction over the offense being investigated;'' and 
     inserting the following: ``that--
       ``(i) has jurisdiction over the offense being investigated;
       ``(ii) is in or for a district in which the provider of a 
     wire or electronic communication service is located;
       ``(iii) is in or for a district in which a landlord, 
     custodian, or other person subject to subsections (a) or (b) 
     of section 3124 of this title is located; or
       ``(iv) is acting on a request for foreign assistance 
     pursuant to section 3512 of this title;'';
       (4) in chapter 223, by adding at the end the following:

     ``Sec. 3512. Foreign requests for assistance in criminal 
       investigations and prosecutions

       ``(a) Execution of Request for Assistance.--
       ``(1) In general.--Upon application, duly authorized by an 
     appropriate official of the Department of Justice, of an 
     attorney for the Government, a Federal judge may issue such 
     orders as may be necessary to execute a request from a 
     foreign authority for assistance in the investigation or 
     prosecution of criminal offenses, or in proceedings related 
     to the prosecution of criminal offenses, including 
     proceedings regarding forfeiture, sentencing, and 
     restitution.
       ``(2) Scope of orders.--Any order issued by a Federal judge 
     pursuant to paragraph (1) may include the issuance of--
       ``(A) a search warrant, as provided under Rule 41 of the 
     Federal Rules of Criminal Procedure;
       ``(B) a warrant or order for contents of stored wire or 
     electronic communications or

[[Page H10093]]

     for records related thereto, as provided under section 2703 
     of this title;
       ``(C) an order for a pen register or trap and trace device 
     as provided under section 3123 of this title; or
       ``(D) an order requiring the appearance of a person for the 
     purpose of providing testimony or a statement, or requiring 
     the production of documents or other things, or both.
       ``(b) Appointment of Persons To Take Testimony or 
     Statements.--
       ``(1) In general.--In response to an application for 
     execution of a request from a foreign authority as described 
     under subsection (a), a Federal judge may also issue an order 
     appointing a person to direct the taking of testimony or 
     statements or of the production of documents or other things, 
     or both.
       ``(2) Authority of appointed person.--Any person appointed 
     under an order issued pursuant to paragraph (1) may--
       ``(A) issue orders requiring the appearance of a person, or 
     the production of documents or other things, or both;
       ``(B) administer any necessary oath; and
       ``(C) take testimony or statements and receive documents or 
     other things.
       ``(c) Filing of Requests.--Except as provided under 
     subsection (d), an application for execution of a request 
     from a foreign authority under this section may be filed--
       ``(1) in the district in which a person who may be required 
     to appear resides or is located or in which the documents or 
     things to be produced are located;
       ``(2) in cases in which the request seeks the appearance of 
     persons or production of documents or things that may be 
     located in multiple districts, in any one of the districts in 
     which such a person, documents, or things may be located; or
       ``(3) in any case, the district in which a related Federal 
     criminal investigation or prosecution is being conducted, or 
     in the District of Columbia.
       ``(d) Search Warrant Limitation.--An application for 
     execution of a request for a search warrant from a foreign 
     authority under this section, other than an application for a 
     warrant issued as provided under section 2703 of this title, 
     shall be filed in the district in which the place or person 
     to be searched is located.
       ``(e) Search Warrant Standard.--A Federal judge may issue a 
     search warrant under this section only if the foreign offense 
     for which the evidence is sought involves conduct that, if 
     committed in the United States, would be considered an 
     offense punishable by imprisonment for more than one year 
     under Federal or State law.
       ``(f) Service of Order or Warrant.--Except as provided 
     under subsection (d), an order or warrant issued pursuant to 
     this section may be served or executed in any place in the 
     United States.
       ``(g) Rule of Construction.--Nothing in this section shall 
     be construed to preclude any foreign authority or an 
     interested person from obtaining assistance in a criminal 
     investigation or prosecution pursuant to section 1782 of 
     title 28, United States Code.
       ``(h) Definitions.--As used in this section, the following 
     definitions shall apply:
       ``(1) Federal judge.--The terms `Federal judge' and 
     `attorney for the Government' have the meaning given such 
     terms for the purposes of the Federal Rules of Criminal 
     Procedure.
       ``(2) Foreign authority.--The term `foreign authority' 
     means a foreign judicial authority, a foreign authority 
     responsible for the investigation or prosecution of criminal 
     offenses or for proceedings related to the prosecution of 
     criminal offenses, or an authority designated as a competent 
     authority or central authority for the purpose of making 
     requests for assistance pursuant to an agreement or treaty 
     with the United States regarding assistance in criminal 
     matters.''; and
       (5) in the table of sections for chapter 223, by adding at 
     the end the following:

``3512. Foreign requests for assistance in criminal investigations and 
              prosecutions.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Schiff) and the gentleman from Texas (Mr. Poe) each 
will control 20 minutes.
  The Chair recognizes the gentleman from California.


                             General Leave

  Mr. SCHIFF. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. SCHIFF. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I introduced the Foreign Evidence Request Efficiency Act 
in July with my colleague Representative Dan Lungren from California.
  The bill before us today, S. 1289, is an identical companion bill 
introduced by Senators Whitehouse, Sessions, and Leahy, and passed by 
the Senate on July 10, 2010. I would like to commend Senator Whitehouse 
for his leadership on this issue and thank him for the opportunity to 
work with him, given our shared experience as former Federal 
prosecutors, to address this matter.
  Mr. Speaker, as we know, crime knows no borders. A fraud committed in 
France may involve banks and financial records located here in the 
United States. Modern technology links the countries of the world more 
and more, and the need for international cooperation in fighting crime 
increases.
  The U.S. routinely assists foreign law enforcement agencies in the 
investigations in the same way that foreign law enforcement entities 
assist the United States with its investigations. When a foreign law 
enforcement agency makes a request for evidence in the United States, 
such as financial records or Internet records or other evidence, U.S. 
attorneys review the requests and, upon approval, seek warrants for the 
evidence. When the evidence is collected, it is then transmitted to 
foreign authorities.
  The current process, though, is very cumbersome. Under existing law, 
international requests for evidence are processed under civil practice 
rules that require prosecutors to file in every district in which 
evidence or a witness may be found. For example, evidence sought for 
one criminal matter may involve financial records housed in banks in 
several different Federal judicial districts, in several different 
States, Internet records in more than one district, and other evidence 
spread over many districts and States. So, under current law, over a 
dozen different U.S. attorneys' offices could have to work on an 
evidence request for a single case. Several district courts would also 
have to be involved. This process is inefficient, it's burdensome, and 
makes little sense for Federal prosecutors across the country or for 
the interests of justice.
  The Foreign Evidence Request Efficiency Act would rectify this 
situation by allowing foreign evidence requests to be handled 
centrally, ideally by one or two U.S. attorney offices. Specifically 
under the proposal, a legitimate request for assistance can be filed in 
the District of Columbia, in any of the districts in which any of the 
several records or witnesses are located, or in any district in which 
there is a related Federal criminal case already being conducted. 
Courts will continue to act as gatekeepers to make sure that requests 
for foreign evidence meet the same standards as those required in 
domestic cases.
  But by streamlining the evidence collection process, the U.S. will be 
able to more quickly respond to foreign evidence requests. These 
efforts will assist us with our investigations as foreign authorities 
will be urged to respond in kind to our evidence requests in a speedy 
manner.
  In addition, the current authority to respond to foreign evidence 
requests is found in a patchwork of treaties, the inherent power of the 
courts, and analogous domestic statutes. This legislation would provide 
clear statutory authority in one place.
  The legislation before us is strongly supported by the Department of 
Justice. The Department believes the changes in this bill will 
facilitate the ability of the United States to assist in foreign 
investigations, prosecutions, and related proceedings involving 
organized crime, trafficking in child pornography, intellectual 
property violations, identity theft, and all other serious crimes.
  Mr. Speaker, the important changes in this bill will greatly improve 
our crime-fighting abilities and that of our allies. I urge my 
colleagues to support this important legislation.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1230

  Mr. POE of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  I rise in support of S. 1289, the Foreign Evidence Request Efficiency 
Act of 2009. I would like to commend Congressman Schiff and Congressman 
Lungren for sponsoring the companion bill in the House, H.R. 3133.
  S. 1289 improves the ability of the United States to assist foreign 
governments with criminal investigations. Drug trafficking, organized 
crime and international child pornography rings

[[Page H10094]]

utilize a complex web of bank accounts, Internet sites and other 
techniques to hide their illegal, criminal acts.
  These foreign conspiracies often use financial institutions and 
Internet providers across the globe, including in the United States. 
Foreign governments enlist the assistance of Federal prosecutors to 
gather evidence from U.S. companies. These foreign governments 
routinely do the same for us in their countries.
  Unfortunately, this process is not as easy as it may seem. Under 
current American law, foreign evidence requests must be processed in 
the district where the evidence resides. So an international fraud 
scheme that funneled money through a dozen banks across the United 
States would require assistance from a dozen U.S. Attorney's Offices 
and Federal courts. This imposes an unnecessary and costly burden on 
our criminal justice system.
  The Foreign Evidence Request Efficiency Act simplifies this process 
by allowing foreign evidence requests to be streamlined through one 
single U.S. Attorney's office or perhaps a few offices if necessary. 
The act amends the Federal criminal code to allow evidence requests to 
be processed through a court with jurisdiction over the evidence, 
including where a bank or a communication provider is located. Under 
current law, only courts with jurisdiction over the offense may grant 
an order for disclosure of records.
  S. 1289 does not change the types of evidence that may be requested 
by foreign governments nor weaken the procedures for obtaining the 
evidence. The act reduces paperwork, red tape and bureaucracy for 
obtaining the evidence. The bill also allows prosecutors to process 
foreign evidence requests more quickly. Delays in evidence collection 
can mean the difference between shutting down a criminal enterprise or 
watching it fade into the shadows.
  I urge my colleagues to support this legislation.
  I reserve the balance of my time.
  Mr. SCHIFF. Mr. Speaker, may I inquire of my colleague from Texas how 
many speakers he has remaining.
  Mr. POE of Texas. We have one, Mr. Lungren, if he gets here, but 
other than that, he is the only other speaker.
  Mr. SCHIFF. Mr. Speaker, I will reserve the balance of my time.
  Mr. POE of Texas. Well, Mr. Speaker, I yield back the balance of my 
time.
  Mr. SCHIFF. Mr. Speaker, I would be happy to engage in a colloquy 
with my colleague if it would help Mr. Lungren. I appreciate his 
support on this legislation, and I have enjoyed the opportunity to work 
with Mr. Lungren on this. Of course, I want to particularly acknowledge 
my colleague in the Senate, Sheldon Whitehouse, for his leadership as 
well as Senators Sessions and Leahy. I'm hoping that this will take 
some of the burden off the U.S. Attorney's offices around this country 
and speed our ability to handle these foreign requests, and thereby I 
hope we will see reciprocity in our requests of these other countries 
that they act expeditiously.
  I would be happy to yield to my colleague.
  Mr. POE of Texas. I thank the gentleman for yielding. As a former 
judge, sometimes the bureaucracy gets in the way of justice because of 
the fact that there are so many entities involved. Streamlining the 
process in this legislation will allow foreign governments to help us 
on international organized crime rings, yet protect the dignity of the 
Constitution as well.
  I do not expect that Mr. Lungren will be here, so I would yield back 
to the gentleman.
  Mr. SCHIFF. I thank the gentleman for yielding, and I know if Mr. 
Lungren were here, he would make some unnecessarily gracious remarks in 
my direction. They are reciprocated. Once again, I thank him for his 
work.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, today we live in a 
interconnected world where United States law enforcement agencies 
routinely help foreign law enforcement as they pursue criminal conduct 
outside their borders within the United States. I might add that U.S. 
law enforcement has an identical need for cooperation from their 
foreign counterparts. This cooperation is essential as we work together 
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.
  On a regular basis the United States receives requests for assistance 
in gathering evidence within our borders. For example, when French 
authorities collect relevant domestic evidence they may discover the 
likelihood of critical evidence within the United States. In such a 
case they would submit a request to us for financial records, Internet 
records, and various other kinds of evidence which they have determined 
to be relevant to making their case. 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 French 
authorities, leading to prosecution in French courts.
  Unfortunately, what should be a simple process is compounded by 
bureaucratic rules with unintended consequences. 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 French 
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.
  The Foreign Evidence Request Efficiency Act would address 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. Rather than sixteen U.S. Attorneys' offices 
being involved the entire operation would be coordinated by one United 
States Attorney's office.
  S. 1289 would not alter the type of evidence which may be sought and 
would therefore have no adverse impact on civil liberties. This 
legislation would merely eliminate an entirely unnecessary paperwork 
burden currently imposed on United States Attorneys.
  Finally, I would suggest that our ability to better assist foreign 
law enforcement agencies will serve the interests of reciprosity when 
we ask for their assistance. We need to establish standards of evidence 
collection here in the United States as an example of what we ourselves 
expect in our own requests for cooperation of foreign agencies in our 
criminal investigations which involve foreign jurisdictions.
  I ask for your support of this important bi-partisan legislation.
  Mr. Speaker, I urge passage of the bill and yield back the balance of 
my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Schiff) that the House suspend the rules 
and pass the bill, S. 1289.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________