"Why are you afraid to have them investigated? "
There's the wrong way to investigate (extorting the president of a country) and there's the right way...
9-13.500 - International Legal AssistanceSome countries reserve official acts to local officials and provide significant criminal penalties for persons who engage in such acts in their territory without authorization. Before attempting to do any unilateral investigative act outside the United States relating to a criminal investigation or prosecution, including contacting a witness by telephone or mail, prior approval must be obtained from the Criminal Division’s Office of International Affairs (OIA) (202-514-0000).
In addition, OIA must be consulted before contacting any foreign or State Department official in matters relating to extradition of a fugitive or the obtaining of evidence through compulsory process from a foreign authority in a criminal investigation, prosecution, or ancillary criminal matter.
Any proposed contact with foreign officials, other than United States investigative agents, in a foreign country for the purpose of obtaining the extradition of a fugitive or evidence through compulsory process should first be discussed with OIA.
None of the above is intended to prevent prosecutors from:
having preliminary discussions with U.S. law enforcement representatives posted abroad concerning the obtaining of assistance,communications with agents of State Department’s Diplomatic Security Service concerning an investigation under their jurisdiction, orparticipating in standing international committees such as the U.S.-Canada Cross Border Committee.[cited in JM 9-11.140] [updated April 2018]
9-13.510 - Obtaining Evidence Abroad—General ConsiderationsEvery nation enacts laws to protect its sovereignty and can react adversely to American law enforcement efforts to gather evidence within its borders without authorization. Such efforts can constitute a violation of that nation’s sovereignty or criminal law. You should contact the Office of International Affairs, Criminal Division, as soon as you become aware that you may need evidence located in another country to determine methods for securing assistance from abroad and to select an appropriate one.
[updated June 2018]
9-13.512 - Intended Use of the EvidenceWhen a country provides evidence pursuant to a request for legal assistance, such as an MLAT, letter rogatory, or letter of request, contact OIA before using or disclosing it for a purpose other than that specified in the legal assistance request. (Examples of such use or disclosure include Freedom of Information Act requests, or requests to use the evidence in a parallel civil or administrative proceeding.) OIA will work with the USAO to determine whether the evidence can be used for a different purpose without the express permission of the country that provided it and, if not, for guidance in securing such permission.
[updated April 2018]
9-13.514 - Time RequiredContact the Office of International Affairs as soon as it appears that assistance from overseas will be needed. See the Criminal Resource Manual at 271- 272.
9-13.516 - Cost of Obtaining EvidenceBe sure funds are available before making a costly request. See the Criminal Resource Manual at 273.
9-13.525 - SubpoenasU.S. law, in the form of mutual legal assistance treaties, requires that the United States attempt to obtain records using the mutual legal assistance process prior to resorting to unilateral compulsory measures. Therefore, all Federal prosecutors must obtain written approval from the Criminal Division through the Office of International Affairs (OIA) before issuing any unilateral compulsory measure to persons or entities in the United States for records located abroad.
OIA must also be consulted prior to initiating enforcement proceedings relating to such process. This includes situations where the prosecutor was unaware that the requested records were located abroad but is subsequently notified of that fact.
There are two clarifications to the above. First, some entities have taken the position that they will voluntarily provide records even when those records may be located abroad. In such cases, no prior consultation with OIA is required.
Second, prosecutors are not required to consult with OIA prior to seeking a search warrant pursuant to the Stored Communications Act to obtain records from a U.S.-based communications service provider, regardless of where those records may actually be located. See 18 U.S.C. § 2713. Prosecutors are strongly encouraged to consult with the Criminal Division’s Computer Crime and Intellectual Property Section if a service provider claims that the records called for by the warrant are not subject to U.S. jurisdiction.
The service of process in a foreign country of U.S. permanent residents and nationals pursuant to 28 U.S.C. §1783 can also implicate sovereignty issues and, when done unilaterally, can adversely affect law enforcement relationships. MLATs and other forms of legal assistance mechanisms address requests for service of process abroad. You should consult with OIA prior to issuing a 28 U.S.C. §1783 subpoena.
OIA approval must also be obtained prior to serving a subpoena ad testificandum on an officer of, or attorney for, a foreign bank or corporation who is temporarily in or passing through the United States when the testimony sought relates to the officer’s or attorney’s duties in connection with the operation of the bank or corporation.
The amended Rule 41(b)(6) does not authorize courts to issue warrants for the search of electronic information stored abroad. When conducted without consultation with foreign authorities, such searches may raise concerns, including adverse impacts upon the law enforcement and other relationships of the United States with foreign countries. The use of such searches can implicate foreign sovereignty and criminal law issues and may even lead to the filing of foreign criminal charges against the U.S. prosecutor or law enforcement agent involved in the search. Before applying for a warrant under either subsection of Rule 41(b)(6), reasonable efforts shall be used to identify whether the computer to be searched is located inside or outside the United States. Where the location of the computer is uncertain, but possibly within the United States, judicial approval will assure that Constitutional requirements have been met. Any warrant should be limited to authorizing a search only in the United States. To the extent the location of the computer cannot be definitively determined to be in a judicial district of the United States, but it is reasonably possible that the location is in the United States, prosecutors should consider whether to limit their initial search to one which solely assists in the identification of the location of the computer. If there is reason to believe that the computer is in a specific foreign country, prosecutors should consult with the Office of International Affairs about appropriate coordination with foreign law enforcement partners as well as potential diplomatic and sovereignty issues before performing a remote search.
[cited in JM 9-13.520] [updated April 2018]
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