Daniel Burgermeister, Prosecutor, Prosecutor’s Office of the Canton of St. Gallen, Switzerland; Shannon O’Brien, Deputy Bureau Chief, High Tech Crimes Illinois Attorney General’s Office, Illinois, USA; Sidney Rosa da Silva, Junior, Director of the Consumer Protection Division of the Attorney General’s Office of the State of Rio De Janeiro, Brazil; Imre Szabo, Prosecutor, Prosecution Service of Hungary, Metropolitan Chief Prosecutor’s Office, Hungary; Marie Wynter, Senior Legal Officer, Attorney General’s Department, Australia

This group was asked to consider and discuss the importance of overcoming hurdles to secure evidence from social media companies and effective methodologies addressing this issue. They were asked to focus on the main motivators or hinderances for social media companies that contribute to poor cooperation with prosecutors as well as the main ways prosecutors can foster a more productive relationship with social media companies to obtain evidence. The group offered their recommendations including the need for international adoption of cybercrime fighting standards, increased training for law enforcement officials who specialize in handling social media cases, and the encouragement of social media companies to streamline law enforcement investigative requests.

Facebook, Snapchat, WhatsApp, and other social media companies have become a part of many people’s daily experiences across the globe. Through social media, we shop, interact with friends and family, and post fun moments of our everyday lives for the whole world to see. Unfortunately, as with any new technology, wrongdoers have harnessed the power of social media to use as a platform for crime. Due to the vastness of the internet, evidence of crimes committed over social media can be hard for law enforcement to capture. This article identifies primary hurdles international prosecutors face when attempting to collect evidence of a crime from social media companies and offers some recommendations to help reduce cybercrime, with an emphasis on how international prosecutors can work together and with social media companies to make the evidence gathering process more efficient for both parties.

Primary Hurdles Facing Prosecutors Obtaining Evidence

For prosecutors, there are several barriers to efficient access to data-based evidence from social media companies. Investigators and ultimately prosecutors cannot properly litigate and prosecute cases because they often cannot obtain vital evidence to prove their cases. Or, they cannot receive the evidence quickly enough, further hindering their ability to efficiently and effectively handle their cases. Other obstacles include:

1. Difficulty securing responses from social media companies located outside of a country’s jurisdiction. Unfortunately, prosecutors are treated differently with respect to their ability to access information depending upon their regional location. Prosecutors in the United States and prosecutors from countries around the world are not similarly situated for a variety of reasons. While the Mutual Legal Assistance Treaty (MLAT) was designed to solve the problem of extra-territorial evidence collection, its effectiveness is extremely limited when prosecutors and investigators seek evidence from social media companies or try to obtain other electronic evidence.

2. Lack of knowledge of the primary point of contact at social media companies and what data they retain. Prosecutors also need to know what terminology must be included in their requests to guarantee a complete response. Their requests must carefully balance both privacy of users and resource considerations.

3. Uneven responses to legal process from social media companies. The companies regularly provide notification to subscribers and suspects of investigative requests, while not providing quick or thorough responses to prosecutors or investigators. Although some companies are responsive to requests, others ignore them or make the process of obtaining information and evidence exceedingly difficult, even in instances where there are exigent circumstances.

4. Social media companies overburdened by the increase in requests from law enforcement around the world. The exponential increase in volume results in many companies being even less responsive or less timely, if they respond at all.

5. A lack of uniform international law or standards concerning how to and whether there are viable options to access information from social media companies. These global inconsistencies in practice and in law have resulted in different data retention periods for different countries (if such requirements are imposed at all). This is a major challenge for prosecutors and investigators because if a crime is not discovered for some time, by the time the request for information is made, the evidence may have already been removed or it may not have been retained in the first place.

6. Encrypted apps and devices. Investigators and prosecutors have been gravely affected by encrypted data on some social media platforms that makes retrieval of evidence all but impossible. Lives have been jeopardized or even lost as a result of the inability to access encrypted materials from social media platforms.

7. Different evidentiary standards. Evidentiary standards in the United States are often different from those in other countries. Often, when global prosecutors seek information from U.S.-based companies or countries using the MLAT process, it is of no use because countries must first meet the U.S probable cause requirement. This requirement is not a part of the legal process in many countries, which makes MLATs with the United States far less useful.

Recommendations

Overcoming the previously noted hurdles will not be an easy feat for international prosecutors or their governments. Social media companies have cited their privacy and their users’ privacy rights as a reason for declining to cooperate with law enforcement officials in investigations. While not all these assertions may be made in good faith, it is certainly understandable that companies want to protect their businesses from intrusive foreign government interference, although they recognize an obligation to prevent their platforms from being used to further criminal enterprises. The following recommendations may be difficult to implement, but they are purposely basic, so that they can be implemented as first steps to encourage companies to be more responsive to prosecutorial requests made for legitimate governmental purposes.

In summary, we recommend the following principles:

  1. Widespread adoption of an international framework for cybercrime cases that focuses on improving the effectiveness of the MLAT process.
  2. Significant increases in training for law enforcement who work on social media cases to help them operate on a more level playing field.
  3. Insistence by governments and society at large that social media companies make efforts to accommodate law enforcement requests where possible.

In[EM1]  addition to these general recommendations, we include some more specific recommendations to help resolve challenges prosecutors face when attempting to obtain evidentiary information from social media companies.

Fully Utilize and Adopt the Budapest Convention

The Council of Europe Convention on Cybercrime,[1] known as the Budapest Convention (the Convention), is a significant tool that should be more widely adopted among nations committed to preventing and minimizing the effects of cybercrime. The Convention is the first multilateral treaty on crimes committed via the internet and other computer networks. Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international cooperation. Signatories to the Convention are currently negotiating an additional protocol on accessing data in the cloud, which will help facilitate better access to social media and cloud-based evidence in the future. Diplomatic efforts should be used to persuade non-participating countries that have not taken a strong stance against fighting cybercrime to join in the fight and use viable treaties that help alleviate the problem. Widespread adoption and implementation of the Convention should be encouraged at the highest levels of government. With additional support from more nations, it will become more effective.

Improve the Effectiveness of the Mutual Legal Assistance Treaty

Law enforcement officials use the Mutual Legal Assistance Treaty (MLAT) mechanism to obtain information and fulfill legal requests among participating nations. Unfortunately, the effectiveness of this process can be significantly delayed for a variety of reasons, including countries refusing to respond or responding very slowly, requests being inadequately prepared, or legal standards involving privacy and compliance with existing laws preventing or limiting a response. However, even in instances where all requests are legally sufficient and adequate, MLAT requests simply do not receive a prompt response and are therefore unhelpful. This process must be improved so countries can obtain admissible evidence on criminal matters across borders.

Addressing the following issues will make the MLAT process more efficient and effective:

1. Due to exponential growth in requests for evidence held by social media companies across borders, the number of attorneys who are authorized to handle MLAT requests in participating MLAT countries should be increased.

2. Where possible, the process should be streamlined to ensure that prosecutors are aware of necessary legal requirements for MLAT requests in the requesting country so that response time is improved.

3. Improving transparency of the MLAT process so that law enforcement and justice agencies have greater insight into the status of a request and what can be done to expedite it is important. For example, knowing whether a request has been accepted, is pending or denied, or whether it has been transferred to the domestic authority for action is very helpful to the requesting entity. We encourage the development of an e-MLAT portal to facilitate greater transparency and speedy action in processing requests. Although implementation of an e-MLAT portal may cause concern with respect to sensitive information being shared, given the urgent nature of the requests, it is essential to modernize the process.

4. Use more informal cooperation mechanisms to more precisely identify the parameters for formal MLAT requests, including whether the data is available or would be useful as evidence. These steps should reduce the overall need for and number of MLAT requests. Bringing together professionals and developing relationships, as is done through NAGTRI’s International Fellows Program, is a great way to build trust and ensure that prosecutors are more responsive when these requests arise.

5. Consider whether the model of facilitating MLAT requests adopted by the European Union’s Judicial Cooperation Unit (EUROJUST) or the Budapest Convention’s 24/7 network would be useful to expand globally. Through these types of programs, prosecutors would have a contact point in each country to determine whether there is a similar investigation within a country and to help coordinate resources.

6. Encourage the negotiation and adoption of agreements envisioned by the Clarifying Lawful Overseas Use of Data Act,[2] that enable law enforcement and prosecution agencies to more directly access data held by social media companies.

Improve Communication and Relationships Between Law Enforcement and Social Media Stakeholders

It is an understatement that law enforcement officials and social media companies have not been able to maintain a very fruitful relationship. Although some social media companies and law enforcement officials have solid relationships that have been built over the course of time, these seem to be few and far between. The importance of wide-ranging efforts to improve relationships and communication on both sides cannot be overstated. We believe the following steps should be taken to improve communication and enhance relationships among social media companies, law enforcement, and justice agencies:

1. Encourage regular communication among social media companies, law enforcement, and justice agencies to build relationships and trust, ultimately improving each other’s expectations and leading to better cooperation.

2. It is in the interest of social media companies to build and sustain digital ecologies free from crime, in order to create safe spaces for citizens to participate. Therefore, fostering common points of interest between social media companies and law enforcement or justice agencies will help facilitate safer spaces and diminish the illicit corners of the web.

3. Currently, warrants to obtain data from social media companies tend to be broadly framed to ensure that all relevant data is captured. Generally, large volumes of data are returned, which intrudes on users’ privacy, is costly, and can tie up valuable law enforcement and prosecutorial resources when sifting through vast amounts of data. It would be better to have a clearer understanding of the types of data held by social media companies so that search warrants can be more precisely drafted and only requested data is provided.

4. Knowledge sharing among law enforcement and prosecutors is critical because government officials throughout the world are not similarly situated. It is critical that best practices and resources be shared globally to help all enforcers keep pace with technological advances.

Increased Training for Law Enforcement in Social Media Investigations

Training is important regardless of the participant’s experience or knowledge level. Training law enforcement (loosely defined as any stakeholders who are essential to solving cybercrime) so they are better equipped with a practical understanding of how to obtain data from social media companies is important. It is equally important that they know how to obtain material more expeditiously.

Law enforcement officials should have training opportunities to keep pace with technological advances. They should receive training on which tools should be used for different requests, how those tools differ, how data is processed, and how to make appropriate requests to social media companies. Some examples of resources include the following websites or materials:

Prosecutors should also be using the best tools to process and utilize electronic evidence, including the International Association of Prosecutors and the Digital DA (for U.S. prosecutors only). Development of similar sources worldwide should be a priority.

Social Media Companies Should Streamline Law Enforcement Requests

Currently, each social media company has individual requirements with which law enforcement and justice agencies must comply in order to obtain electronic evidence. Complying with these individual requirements takes time, and technical non-compliance can be a basis for refusing requests. We recommend streamlining and harmonizing the process by which requests are made, as well as the way in which data is provided to allow easier searches of data by prosecutors. Simplifying the process and information will help prosecutors to work more efficiently.

Conclusion

We recognize that implementing these recommendations globally is not an easy feat, presenting challenges such as how to balance the important privacy interests of users, the business interests of social media companies, and the needs of law enforcement and justice agencies to investigate and successfully prosecute crimes. Protection of the public is a compelling reason to work towards improving the process.

 

[1] Budapest Convention on Cybercrime, E.T.S. No 185 (July 1, 2004).

[2] CLOUD Act, S. 2383, 115th Cong. (2018).

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