This aff basically does two things:
1. Requires a warrant for ALL emails held by U.S. citizens and service providers – right now, the
Department of Justice and US law enforcement have the authority to search email that is at least 180 days old. The plan would prevent this by extending 4 th amendment protection to all stored communications.
2. If those issued warrant force US service providers to violate the laws of foreign countries, they can request the warrant be vacated and/or modified to ensure compliance.

(Daniel J, John Marshall Harlan Research Professor of Law at the George Washington
University Law School, “Surveillance Law in Dire Need of Reform: The Promise of the LEADS Act,” March
24, https://www.teachprivacy.com/surveillance-law-in-dire-need-of-reform-the-promise-of-the-leadsact/, CMR)
Microsoft v. United States
Microsoft v. U nited S tates exemplifies
some of the shortcomings of existing law to fit modern tech nology. Officially named (in clunky fashion) In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and
Maintained by Microsoft Corporation, the case shows how ECPA has fallen out of date and wasn’t really created with contemporary cloud computing in mind
.
A New York magistrate judge issued a warrant requested by the
Department of Justice (
DOJ
) on Microsoft to turn over data stored in Ireland.
The warrant was issued under ECPA’s Stored Communications Act
(SCA).
Microsoft sought to quash the warrant
.
Microsoft argued that the government should not be able to demand from Microsoft data stored in a foreign country without going through the Mutual Legal Assistance Treaty
(MLAT) between that country and the U nited
S tates. The government cannot use a warrant under the Fourth Amendment to gather data oversees. The warrant would be meaningless in other countries because each country has its own laws for when government officials can obtain data and engage in surveillance. In order to do so, U.S. government officials would need to follow the MLAT process. This process involves U.S. officials going through a judge in the foreign country to obtain the information. But the MLAT process is
also in need of reform
, and so the government has found an end-run around it by serving Microsoft with the warrant under ECPA to fetch the info rmation in Ireland and bring it to the government officials in the U.S.
ECPA isn’t clear about how to address the issue of data stored beyond U.S. borders
. Were ECPA being written today, it would surely cover this issue, as cloud computing often involves data stored in foreign countries.
But ECPA was created
in 1986, nearly
30 years ago
.
The result is that cloud service providers are put in a very difficult position , as they are in the middle, forced to violate foreign law in order to comply with U.S. law
. Being put in this
position puts U.S. companies at a competitive disadvantage over other companies
.
Imagine
that
John Doe is a citizen of Utopia, a country that has strong
civil liberty and privacy protections
, that actually keeps its laws up to date
, that doesn’t let its spy agencies run amok
, and
that doesn’t interpret its Constitutional protections into
near oblivion
.
John Doe is deciding between whether to use
YSoft cloud service or
the cloud service of
Zsoft
, a company in Utopia.
Doe could store his data with YSoft in Utopia, but now the U.S. government could use the weaker U.S. laws to gather Doe’s data from YSoft in the U.S
.
Doe doesn’t want to be subject to the U.S. law
– he wants the protections his own country provides to him
.
So he chooses ZSoft instead
.
YSoft is thus put at a competitive disadvantage
. That’s why so many U.S. tech nology companies are supporting Microsoft
in this case.
If the U.S. government ignores foreign law when obtaining data abroad
, then other countries might reciprocate by ignoring U.S. law.
What if countries with weaker laws
than the United States demanded info rmation on U.S. citizens stored abroad
?
These countries might start ignoring U.S. protections and grab the data according to their own permissive rules
.

– protects MLATs
(Daniel J, John Marshall Harlan Research Professor of Law at the George Washington
University Law School, “Surveillance Law in Dire Need of Reform: The Promise of the LEADS Act,” March
24, https://www.teachprivacy.com/surveillance-law-in-dire-need-of-reform-the-promise-of-the-leadsact/, CMR)
The LEADS Act
A key proposed reform of ECPA is the Law Enforcement Access to Data Stored Abroad
(LEADS)
Act of
2015
, a bipartisan bill sponsored by Senators Hatch, Coons and Heller. The bill was introduced last term and died, but it has been reintroduced again this year.
The LEADS Act would require the government to obtain a warrant under ECPA to obtain electronic information stored by a “U.S. person.”
The LEADS Act attempts to clarify at least two deficiencies in ECPA:
1.
The LEADS Act’s warrant requirement for all communications overrides a provision in ECPA’s Stored
Communications Act that allows the government to obtain a stored email more than 180 days old with a court order less protective than a warrant, a provision that has been found to be unconstitutional under the Fourth Amendment
(see United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)).
The LEADS
Act’s warrant requirement would get rid of the 180-day distinction
.
2.
The LEADS Act
also directly addresses the problems raised in Microsoft v. United States
. Under the LEADS
Act, warrants would be required whether the info rmation is held in the U.S. or overseas
, but they would not be allowed to override conflicting foreign law
.
The LEADS Act
also attempts to improve upon the
MLAT process to ease its burden
.
For U.S. persons, if the info rmation is maintained in a foreign country, the service provider could request that the court modify the warrant if compliance would make the provider violate the law in the country where the data is stored
.
For non-U.S. persons, warrants would not apply
. The
MLAT
process would need to be followed
. So if the government wanted to obtain info rmation stored in Ireland by
Microsoft by
Jane America, a U.S. citizen, it could obtain the info rmation through a warrant issued to
Microsoft, but only if compliance didn’t force Microsoft to violate the laws of Ireland
. But if it wanted to obtain information stored oversees by Microsoft by Jane Ire, an Irish citizen, it would need to follow the MLAT process.
The LEADS Act is a great step towards reforming ECPA
.
The U.S. government should not put itself above the laws of other countries
.
Nor should the U.S. government force cloud service providers and other companies to violate those laws so that government officials can take a shortcut around the MLAT process
. There are issues in reforming ECPA that are quite controversial, but the LEADS Act has bipartisan support and the support of industry and a wide array of diverse special interest groups.
The LEADS Act is a strong step in the right direction
.

(Rob, Former Washington State Attorney General, to Serve as NAJI President, “NAJI supports bipartisan, bicameral LEADS Act and digital privacy,” Feb 27, http://naji.org/naji-supportsbipartisan-bicameral-leads-act-and-digital-privacy/, CMR)
Dear Representatives Marino and DelBene, Thank you for your leadership on the Law Enforcement Access to Data Stored Abroad Act (LEADS
Act) and for promoting a thoughtful public dialogue on the complex and important issues surrounding data privacy in the digital age.
Legal protections for our electronic communications must be updated to reflect the realities of data storage today and to maintain our global competitive position
. The National Alliance for Jobs and Innovation (NAJI) supports this
important legislation
which will ensure that the privacy of our members’ electronic communications is protected and respected, while also improving our trade position in the world
. I am NAJI’s President and also the former Attorney General of Washington State and past President of the National Association of Attorneys General. NAJI represents over
400 small- and medium-size manufacturing enterprises and 35 manufacturer and business associations around the United States. For our members, the confidentiality of business data and electronic communications, and their protection from arbitrary government seizure , are of the utmost importance
. Like other businesses, and perhaps even more than most,
U.S. manufacturers have benefited tremendously from the strong growth and continuing innovation of the U.S.
information technology (
IT) industry
. But in order for U.S. companies to achieve their full potential and for our nation to maintain its position at the pinnacle of innovation and competitiveness, our data
, business records, and other electronic information must be protected from arbitrary government intrusion
. The
LEADS
Act will strengthen privacy in the digital age and promote trust in U.S. IT tech nologies worldwide
, while enabling law enforcement to fulfill its public safety mission. The
LEADS
Act will
not only require law enforcement to obtain search warrants before accessing private data stored by cloud computing services
, but
will also strengthen international law enforcement cooperation through the
Mutual Legal
Assistance Treaty (
MLAT) process
. NAJI believes these provisions are essential and strongly supports their adoption. Again, we appreciate your willingness to address these vital issues and look forward to engaging with you and all Members of Congress in this important dialogue.
Sincerely, RobMcKenna
(Steve Pociask, president of the American Consumer Institute Center for Citizen Research, a nonprofit educational and research organization, “Spy in the Clouds: How DOJ Actions Could Harm U.S.
Competitiveness Abroad,” 9/8, The American Consumer Institute Center for Citizen Research,
September 8, 2014, http://www.theamericanconsumer.org/wp-content/uploads/2014/09/Balkanized-
Internet.pdf, CMR)
The Cost of Economic Sanction s The U.S. has 10% of the world’s online users, but only 4.5% of the population. 7 Yet, the U.S. has nearly one - third of r esearch and d evelopment investment in science and tech nology. 8 However, its worldwide presence in technology could be threatened by a backlash of anti-American sentiment, now fueled by the Microsoft lawsuit and the resulting concerns of privacy and espionage
. While the Information Technology and
Innovation Foundation predicted a $35 billion loss in cloud computing from an international backlash from privacy concerns , Forrester
Research estimated the
larger high - tech sector could suffer financial losses as high as
$
180 billion
or about a

quarter of industry revenues. 9 Using the Bureau of Economic Analysis industry multipliers, that loss would be equivalent to losing more than 2 million
U.S. jobs
.
That would increase the unemployment rate
by from 6.1% to 7.6%.
These losses would be devastating for American high - tech businesses and
could spill into non - tech commerce as well
. Indeed, losses to U.S. corporations are already starting to surface. Following the NSA spying revelation, there were reports that IBM, Microsoft, Cisco and other American Companies may have lost customers and were not invited to bid on multi - year international contracts. The latest threat by t he DOJ to access records on foreign consumers and businesses , particularly if successful in the courts, will certainly fuel further sanctions.
The shunning of U.S. high - tech products and services by consumers, businesses and governments will be a major setback for U.S. companies working abroad
.
Because the
U.S. is a world leader in tech nological services and products, the effects of complying with the DOJ request would significantly stunt U.S. sales abroad and encourage foreign countries to buy products and services from their domestic sources
, including developing a balkanized Internet that keeps its citizens, businesses and government away from buying U.S. products, cloud services, software and applications.
This would affect U.S. competitive abroad for decades to come
U.S. Government Needs to Fix This Mess
The DOJ’s quest for personal info rmation on a n
Irish citizen living abroad could open up a cascade of problems overseas
-- conflicts with laws in other countries, customer losses, contract sanctions by foreign business and governments, retaliation , and balkanization of the Internet
.
A balkanized Internet will not support the rapid growth of high-tech trade and free exchange of ideas
that we have enjoyed over the past 20 years. I t will lead to a substantial financial impact on U.S. high - tech firms and lost jobs for workers . It would also produce long - term harm to U.S. competitiveness in the high - tech sector.
The quick and easy solution is for
the
full and immediate attention of Congress in its consideration of legislation just introduced by
Senators Hatch, Coons and Heller – The
L aw
E nforcement
A ccess to
D ata
S tored Abroad
Act
. 10
This proposed legislation would address the issue by limiting the reach of warrant s to U.S. citizens and companies, as well as keeping conformity with foreign treaties and laws
.
Congress needs to act before the negative economic consequences of the DOJ’s actions cause irreparable harm to U.S. interests abroad
. The legislative solution makes the U.S. keep its promises and respect its legal treaties with other countries, and that work s to dispel any fears of spying or collection of personal information that our allies might have . We need to take steps now to protect U.S. business interests abroad .
To do otherwise could lead to devastating financial consequences on U.S. high-tech firms
.
(Elbridge the Robert M. Gates fellow at the Center for a New American Security; and Paul
Lettow, was senior director for strategic planning on the U.S. National Security Council staff from 2007 to 2009, 7/3/14, “Have We Hit Peak America?,” http://www.foreignpolicy.com/articles/2014/07/03/have_we_hit_peak_america)
Many foreign-policy experts
seem to believe
that retaining American primacy is
largely a matter of will -- of how America chooses to exert its power
abroad. Even President Obama, more often accused of being a prophet of decline than a booster of America's future, recently asserted that the United States "has rarely been stronger relative to the rest of the world." The question, he continued, is "not whether America will lead, but how we will lead."
But will is unavailing without strength. If the U nited
S tates wants the international system to continue to reflect its interests and values
-- a system
, for example, in which the global commons are protected, trade is broad-based and extensive, and armed conflicts among great nations are curtailed
-- it needs to sustain not just resolve, but relative power. That
, in turn, will require acknowledging
the uncomfortable truth that global power and wealth are shifting at an unprecedented pace
, with profound implications. Moreover, many of the challenges America faces are exacerbated by vulnerabilities that are largely self-created, chief among them fiscal policy. Much more quickly and comprehensively than is understood, those vulnerabilities are reducing America's freedom of action and its ability to influence others.
Preserving America's international position will require it to restore its economic vitality
and make policy choices now that pay dividends for decades to come. America has to prioritize and to act. Fortunately, the U nited
S tates still enjoys greater freedom to determine its future than any other major power
, in part because many of its

problems are within its ability to address. But
this process of renewal must begin with analyzing America's competitive position and understanding the gravity of the situation
Americans face.
- Professor of Global Politics and International Relations @ University of Pennsylvania,
Avery Goldstein, “Power transitions, institutions, and China's rise in East Asia: Theoretical expectations and evidence,” Journal of Strategic Studies, Volume30, Issue 4 & 5 August 2007, pages 639 – 682
Two closely related, though distinct, theoretical arguments focus explicitly on the consequences for international politics of a shift in power between a dominant state and a rising power. In War and Change in World Politics, Robert
Gilpin suggested that peace prevails when a dominant state’s capabilities enable it to ‘govern’ an international order that it has shaped. Over time, however, as economic and technological diffusion proceeds
during eras of peace and development, other states are empowered.
Moreover, the burdens of international governance drain and distract the reigning hegemon, and challengers eventually emerge who seek to rewrite the rules of governance. As the power advantage of the erstwhile hegemon ebbs, it may become desperate enough to resort to
theultima ratio of international politics, force, to forestall the increasingly urgent demands of a rising challenger
. Or as the power of the challenger rises, it may be tempted to press its case with threats to use force. It is the rise and fall of the great powers that creates the circumstances under which major wars, what Gilpin labels
‘ hegemonic
wars’ , break out.13 Gilpin’s argument logically encourages pessimism about the implications of a rising China. It leads to the expectation that international trade, investment, and technology transfer will result in a steady diffusion of American economic power, benefit ing the rapidly developing states
of the world, including China. As the US
simultaneously scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic problem of overextension), it will be unable to devote sufficient resources to maintain or restore
its former advantage over emerging competitors like
China.
While the erosion of the
once clear
American advantage plays itself out, the US will find it ever more difficult to preserve the order in Asia that it created during its era of preponderance. The expectation is an increase in the likelihood for the use of force – either by a Chinese challenger able to field a stronger military in support of its demands for greater influence over international arrangements in Asia, or by a besieged American hegemon desperate to head off further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpin’s theory are China’s expanding share of world trade and wealth(much of it resulting from the gains made possible by the international economic order a dominant US established); its acquisition of technology in key sectors that have both civilian and military applications (e.g., information, communications, and electronics linked with to forestall, and the challenger becomes increasingly determined to realize the transition to a new international order whose contours it will define. the ‘revolution in military affairs’); and an expanding military burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that limits the resources it can devote to preserving its interests in East Asia.14 Although similar to Gilpin’s work insofar as it emphasizes the importance of shifts in the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler present in The War
Ledger focuses more closely on the allegedly dangerous phenomenon of ‘crossover’– the point at which a dissatisfied challenger is about to overtake the established leading state.15 In such cases, when the power gap narrows, the dominant state becomes increasingly desperate. Though suggesting why a rising China may ultimately present grave dangers for international peace when its capabilities make it a peer competitor of America, Organski and Kugler’s power-transition theory is less clear about the dangers while a potential challenger still lags far behind and faces a difficult struggle to catch up. This clarification is important in thinking about the theory’s relevance to interpreting China’s rise because a broad consensus prevails among analysts that Chinese military capabilities are at a minimum two decades from putting it in a league with the US in Asia.16 Their theory, then, points with alarm to trends in China’s growing wealth and power relative to the United States, but especially looks ahead to what it sees as the period of maximum danger – that time when a dissatisfied China could be in a position to overtake the US on dimensions believed crucial for assessing power. Reports beginning in the mid-1990s that offered extrapolations suggesting China’s growth would give it the world’s largest gross domestic product (GDP aggregate, not per capita) sometime in the first few decades of the twentieth century fed these sorts of concerns about a potentially dangerous challenge to American leadership in Asia.17 The huge gap between Chinese and American military capabilities (especially in terms of technological sophistication) has so far discouraged prediction of comparably disquieting trends on this dimension, but inklings of similar concerns may be reflected in occasionally alarmist reports about purchases of advanced Russian air and naval equipment, as well as concern that Chinese espionage may have undermined the American advantage in nuclear and missile technology, and speculation about the potential military purposes of China’s manned space program.18 Moreover, because a dominant state may react to the prospect of a crossover and believe that it is wiser to embrace the logic of preventive war and act early to delay a transition while the task is more manageable, Organski and Kugler’s power-transition theory also provides grounds for concern about the period prior to the possible crossover.19 pg. 647-650

(Jerry, the president of Capitol Allies and the founder of its Six Degrees Project, an independent, nonpartisan effort that promotes entrepreneurship, economic growth, and free market ideals, “Congress LEADS Privacy Rights into the 21st Century,” May 13, http://townhall.com/columnists/jerryrogers/2015/05/13/congress-leads-privacy-rights-into-the-21stcentury-n1998505/page/full, CMR)
Bipartisan legislation
, introduced in both Houses of Congress, seeks to modernize the wholly inadequate and outdated
Electronic Communications Privacy Act (
ECPA
).
The rules regulating government surveillance and info rmation gathering are obsolete and in dire need of reform
. Americans believe—rightly—their privacy rights are not properly protected from government infringement. Enacted in 1986, the ECPA is the major federal statute that regulates electronic surveillance and data gathering, and it does not sufficiently address the challenges presented by modern day computing
. The ECPA was designed to protect the privacy of electronic communications, and in the mid-1980s, many of the issues of today’s interconnected world could not have been anticipated.
The
Law Enforcement Access to Data Stored
Abroad (
LEADS
)
Act amends the ECPA by bringing into the Twenty-first Century the rules determining how U.S. authorities can gain access to electronic data
. On the international level,
LEADS mandates that U.S. agencies cannot use search-warrants to compel the disclosure of an individual’s content stored outside the U nited
S tates unless the account holder is an American citizen
(or U.S. person).
It clarifies how
U.S. authorities can access data held overseas by settling questions of jurisdiction and transparency
.
What’s more, the reform legislation will make stronger the international process of MLATs
(Mutual Legal
Assistance Treaties) through which governments obtain evidence in criminal investigations
. Simply,
LEADS will thwart government overreach into personal data stored on U.S.-corporation servers abroad
. On the national level, the
LEADS
Act would make documents and material stored in the cloud subject to the same search-warrant requirements as a user’s personal property
.
LEADS is a significant step toward protecting due process and privacy rights by extending Fourth Amendment protections to data stored by commercial services
(or cloud storage). The need for reform is clearly validated in Microsoft v. United States
. The
Department of Justice (
DOJ) swayed a federal court to issue a warrant forcing Microsoft to turn over data it had stored in Ireland
. With cloud computing, data can readily be stored in foreign countries.
Microsoft maintains
that for the fed eral government to obtain data in a foreign country, it must go through the MLAT process between that country and the U nited
S tates. The Microsoft case demonstrates that the current legal regime cannot keep pace with changing tech nology.
Real reform
to both the ECPA and the MLAT process is needed now
.
European governments are threatening to ban American-cloud service providers over alarm
that their citizens’ data is not properly safeguarded by companies within reach of U.S. law enforcement
.
Such a scenario would stifle economic growth and be a devastating blow to the American innovation sector
. Twentieth
Century law should not be governing Twenty-first Century technology. The two-part aim of LEADS is simple and reasonable: 1)
LEADS will make certain that data stored in the cloud must receive the same legal protections as data stored in our homes
(Fourth Amendment protection from unreasonable searches and seizures). 2)
LEADS will update and strengthen the M utual L egal A ssistance T reaty process
. The
LEADS Act is good for
our allies
; good for business
; good for security
; and
good for privacy
.

(Bryan, information security, privacy, and data protection lawyer, and a senior advisor of The Chertoff Group, a global security advisory firm that advises clients on cyber security and cloud computing, Formerly, he was a U.S. civil servant, working for the CIA and serving as Deputy Legal
Adviser to National Security Advisor Condoleezza Rice, “Why State and Local Law Enforcement Should
Be Part of the MLAT Reform Process,” March 25, http://www.govexec.com/state-local/2015/03/mlatreform-state-local-law-enforcement/108427/, CMR)
MLATs are formal agreements between countries establishing procedures for requesting evidence stored outside the requesting country’s jurisdiction. Historically
, in many time-sensitive cases, law enforcement agencies officials exchanged info rmation informally and private companies cooperated without formal legal process.
But with increasing overseas attention to privacy rights
and concerns about secret, unilateral data collection by national governments against other countries’ citizens, companies increasingly are refusing to cooperate informally and governments are retaliating for unfair “spying” on their citizens. State and local law enforcement agencies
(LEAs) should care about this problem not only because of its potential impact on the general ability of the U.S. to take down international terror and other criminal organizations
, but because, in our increasingly interconnected world, what once could have been treated largely as “local” cases
, such as cyber fraud and child pornography now require retrieval of evidence from overseas
, and even basic crimes without any obvious cyber component will require evidence stored overseas
.
The problem will get worse as cloud storage providers increasingly globalize data storage
, in order to: store data close to the account holder for faster service; take advantage of excess capacity; and/or save on infrastructure costs or tax burdens.
There is broad agreement
that the current MLAT system has not kept pace with tech nology and must be reformed to support fast and effective global law enforcement and many countries
, especially in Europe, are threatening to cut off U.S. LEAs from some data altogether in retaliation for perceived spying abuses.
Unchecked, both trends threaten to damage the ability of state and local
LEAs to prosecute many types of crimes
.
But U.S.-led MLAT reform can stem this dangerous tide
. What should state and local law enforcement leaders do about it? First, stay informed.
The
Law Enforcement Data Stored Abroad (
LEADS) Act
, currently under debate in the United States Senate, and a similar measure in the House, aim to begin the process of MLAT reform
. A number of law enforcement and civil liberties advocacy groups are tracking such legislation. Second, be heard. Particular facets of legislation may be more or less acceptable to individual state and local law enforcement agencies but such LEAs shouldn’t let the federal government be the only law enforcement voice in the debate. Finally, think through the issues carefully. The immediate reaction of many LEAs may be to oppose any congressional “meddling” with the current system, particularly if an LEA has not itself experienced problems. But efforts to streamline and improve U.S. MLAT processing
, as the LEADS Act, for example, can benefit state and local LEAs both because such agencies must go through the U.S. government to request foreign-stored evidence and because U.S. efforts may prompt improvement abroad
. Further, shows of U.S. “good faith” may forestall new foreign restrictions on U.S. LEAs access to data stored in their countries.
State and local law enforcement should be part of the MLAT reform process.
(“The Global Regime for Transnational Crime,” June 25, http://www.cfr.org/transnationalcrime/global-regime-transnational-crime/p28656#p2, CMR)
Over the past two decades, as the world economy has globalized, so has its illicit counterpart
.
The global impact of transnational crime has risen to unprecedented levels
. Criminal groups have appropriated new technologies, adapted horizontal network structures that are difficult to trace and stop, and diversified their activities. The result has been an

unparalleled scale of international crime. As many as fifty-two activities fall under
the umbrella of transnational crime, from arms smuggling to human trafficking to environmental crime. These crimes undermine states' abilities to provide citizens with basic services, fuel violent conflicts
, and subject people to intolerable suffering
.
The cost of transnational organized crime is
estimated to be roughly
3.6 percent
[PDF] of the global economy
. Money laundering alone costs at least 2 percent of global gross domestic product every year according to UN reports. Drug traffickers have destabilized entire areas of the Western Hemisphere, leading to the deaths of at least fifty thousand people in
Mexico alone in the past six years.
Counterfeit medicines
further sicken ill patients and contribute to the emergence of drug-resistant strains of viruses
.
Environmental crime
—including illegal logging
, waste dumping
, and harvesting
of endangered species
—both destroy fragile ecosystems
and endanger innocent civilians. Between twelve and twenty-seven million people toil in forced labor—more than at the peak of the African slave trade. For many reasons, global transnational crime presents
nations with a unique and
particularly challenging task
. To begin with, by definition, transnational crime crosses borders. But the law enforcement institutions that have developed over centuries were constructed to maintain order primarily within national boundaries. In addition, transnational crime affects nations in diverse ways.
In many states, political institutions have strong links to transnational crime
, and citizens in numerous communities across the world rely on international criminal groups to provide basic services or livelihoods. Finally, the international community requires solid data to gauge the challenge and effectiveness of responses
, but data on transnational organized crime is notoriously difficult to gather and is often politicized.
Dobriansky 1 (Paula – Under Secretary for Global Affairs at the State Department , “The Explosive
Growth of Globalized Crime,” http://www.iwar.org.uk/ecoespionage/resources/transnationalcrime/gj01.htm)
Certain types of
international crime -- terrorism, human trafficking, drug trafficking, and contraband smuggling -- involve serious violence and physical harm
. Other forms -- fraud, extortion, money laundering, bribery, economic espionage, intellectual property theft, and counterfeiting -- don't require guns to cause major damage. Moreover, the spread of information technology has created new categories of cybercrime. For the United States, international crime poses threats on three broad, interrelated fronts. First, the impact is felt directly on the streets of American communities. Hundreds of thousands of individuals enter the U.S. illegally each year, and smuggling of drugs, firearms, stolen cars, child pornography, and other contraband occurs on a wide scale across our borders. Second, the expansion of American business worldwide has opened new opportunities for foreign-based criminals. When an American enterprise abroad is victimized, the consequences may include the loss of profits, productivity, and jobs for Americans at home. Third, international criminals engage in a variety of activities that pose a grave threat to the national security of the
United States and
the stability
and values of the entire world community. Examples include the acquisition of
w eapons of m ass d estruction, trade in banned or dangerous substances, and trafficking in women and children
.
Corruption and the enormous flow of unregulated, crime-generated profits are serious threats to the stability of democratic institutions and free market economies around the world.
Foreign Policy web editor, Joshua, “The End of the World”, 11-13-09, http://www.foreignpolicy.com/articles/2009/11/13/the_end_of_the_world?page=full
How it could happen:
Throughout history, plagues have
brought civilizations to their knees. The Black Death
killed more off more than half of Europe
's population in the Middle Ages. In
1918
, a flu
pandemic killed
an estimated
50 million people
, nearly 3 percent of the world's population, a far greater impact than the just-concluded World War I.
Because of globalization, diseases today spread even faster
- witness the rapid worldwide spread of H1N1 currently unfolding. A global outbreak of a disease such as ebola
virus -- which has had a 90 percent fatality rate during its flare-ups in rural Africa -- or a mutated drug-resistant
form of the flu
virus on a global scale could have a
devastating, even civilization-ending impact
. How likely is it? Treatment of deadly diseases has improved since 1918, but so have the diseases. Modern industrial farming

techniques have been blamed for the outbreak of diseases, such as swine flu, and as the world’s population grows and humans move into previously unoccupied areas, the risk of exposure to previously unknown pathogens increases
. More than 40 new viruses have emerged since the 1970s, including ebola and HIV. Biological weapons experimentation has added a new and just as troubling complication
Johan
is a
nmental
essor in natural resource management
, and the Executive Director of the Stockholm Environment Institute and the
Stockholm Resilience Centre, along with 27 other members of the SEI and SRC, A safe operating space for humanity, Nature 461, 472-475 (24 September 2009), www.nature.com/nature/journal/v461/n7263/full/461472a.html
Crossing certain biophysical thresholds could have disastrous consequences for humanity
Three of nine interlinked planetary boundaries have already been overstepped Although Earth has undergone many periods of significant environmental change, the planet's environment has been unusually stable for the past 10,000 years 1
, 2, 3.
This period of stability
— known to geologists as the Holocene — has seen human civilizations arise, develop and thrive. Such stability may now be under threat
. Since the Industrial Revolution, a new era has arisen, the Anthropocene4, in which human actions have become the main driver of global environmental change
5.
This could see human activities push the Earth system outside the stable environmental state
of the Holocene, with consequences that are detrimental or even catastrophic for large parts of the world
.
During the Holocene, environmental change occurred naturally and Earth's regulatory capacity maintained the conditions that enabled human development
. Regular temperatures, freshwater availability and biogeochemical flows all stayed within a relatively narrow range. Now, largely because of a rapidly growing reliance on fossil fuels
and industrialized forms of agriculture, human activities have reached a level that could damage the systems that keep Earth in the desirable Holocene state.
The result could be irreversible and
, in some cases, abrupt environmental change
, leading to a state less conducive to human development6. Without pressure from humans, the Holocene is expected to continue for at least several thousands of years7.
To meet the challenge of maintaining the Holocene state, we propose a framework based on 'planetary boundaries'. These boundaries define the safe operating space for humanity
with respect to the Earth system and are associated with the planet's biophysical subsystems or processes.
Although Earth's complex systems sometimes respond smoothly to changing pressures, it seems that this will prove to be the exception rather than the rule
.
Many subsystems of Earth react in a nonlinear, often abrupt, way, and are particularly sensitive around threshold levels of certain key variables
.
If these thresholds are crossed, then important subsystems,
such as a monsoon system
, could shift into a new state, often with
deleterious or potentially even disastrous consequences for humans8
, 9. Most of these thresholds can be defined by a critical value for one or more control variables, such as carbon dioxide concentration. Not all processes or subsystems on Earth have well-defined thresholds, although human actions that undermine the resilience of such processes or subsystems
— for example, land and water degradation — can increase the risk that thresholds will also be crossed in other processes, such as the climate system
. We have tried to identify the
Earth-system processes and associated thresholds
which, if crossed, could generate unacceptable environmental change.
We have found nine such processes for which we believe it is necessary to define planetary boundaries: climate change; rate of biodiversity loss
(terrestrial and marine); interference with the nitrogen and phosphorus cycles; stratospheric ozone depletion; ocean acidification; global freshwater use; change in land use; chemical pollution; and atmospheric aerosol loading
(see Fig. 1 andTable). The inner green shading represents the proposed safe operating space for nine planetary systems. The red wedges represent an estimate of the current position for each variable. The boundaries in three systems (rate of biodiversity loss, climate change and human interference with the nitrogen cycle), have already been exceeded. In general, planetary boundaries are values for control

variables that are either at a 'safe' distance from thresholds — for processes with evidence of threshold behaviour — or at dangerous levels — for processes without evidence of thresholds. Determining a safe distance involves normative judgements of how societies choose to deal with risk and uncertainty. We have taken a conservative, risk-averse approach to quantifying our planetary boundaries, taking into account the large uncertainties that surround the true position of many thresholds. (A detailed description of the boundaries — and the analyses behind them — is given in ref. 10.)
Humanity may soon be approaching the boundaries for global freshwater use, change in land use, ocean acidification and interference with the global phosphorous cycle
(see Fig. 1). Our analysis suggests that three of the Earth-system processes — climate change, rate of biodiversity loss and interference with the nitrogen cycle — have already transgressed their boundaries. For the latter two of these, the control variables are the rate of species loss and the rate at which N2 is removed from the atmosphere and converted to reactive nitrogen for human use, respectively.
These are rates of change that cannot continue without significantly eroding the resilience of major components of Earth-system functioning
. Here we describe these three processes.
(Daniel, former staff Director of the House Small Business Committee and a veteran of the House Republican Leadership “LEADS Act will Protect Privacy and Innovation,” 2015, http://humanevents.com/2015/06/10/leads-act-will-protect-privacy-and-innovation/, CMR)
Congress passed the Electronic Communications Privacy Act (ECPA) in 1986 to protect our right to private telephone calls. To place that in perspective, in 1986 “disruptive technology” was the latest IBM Selectric typewriter. 1986 was the same year Microsoft released Windows 1.0 and Apple celebrated the second anniversary of the original Macintosh. Incredibly, judges in the U.S. Court system have successfully stretched the ECPA to provide limited privacy for everything our mobile devices do now
– the selfies on our phone or the future best-selling novel on our laptop. However, the
U.S. Department of Justice (
DOJ) has successfully pressured a U.S District Court Judge to establish a precedent that threatens to break this fragile protection
– both within the U.S. and internationally.
It is necessary for Congress to act to protect our increasingly electronic identities and to establish standards of conduct protecting U.S. citizens, our digital identities and innovative products and services we utilize for our convenience
.
By forcing U.S. law into direct conflict with the privacy protections of the E uropean
U nion, this action by DOJ does not simply place US companies in an impossible position Catch-22 whereby either the company opposes a just action by the U.S. government or the company violates the laws and regulations in the country where the data is stored
. Further, this precedent creates a gaping vacuum of protection for everyone else’s electronic identities in the age of international mobile commerce.
By taking this action, DOJ is
not helping the American people, but rather they are weakening protections for US citizens
– both domestically and around the globe
.
With this action by the DOJ, other countries
– even
Russia
,
North Korea
and
China
– have the reciprocal ability to access our emails or any digitally stored files based in any other country
. The challenge of protecting our electronic information while providing security in the mobile economy is complex and difficult to solve. More mobile apps are released everyday, hosted by an increasingly borderless system of cloud based remote storage. The amount of data per person – photos, apps and even personal medical data – is exponentially increasing every day. By the very nature of the distributed network that is the Internet, the data running these apps is stored in multiple countries located in almost any country around the globe. However, the solution
at this moment is
fairly simple
. Senators Hatch, Coons and Heller introduced the bipartisan “
L aw
E nforcement
A ccess to
D ata
S tored Abroad
Act
” (S. 2871) a few weeks ago. The bill is a simple and prudent update to ECPA. It formally extends ECPA protections to our electronically data
. The
LEADS Act
also assists our law enforcement agencies by providing a clear and unambiguous path to access electronic data with a properly issued warrant
. The bill also updates the Mutual Legal Assistance Treaty process by directing DOJ enter into the 21st Century, with the creation of an ordinary online form to allow other nations to submit legal requests to access data systems based in the US. However, hesitating will
only empower rogue nations to determine how and when they access our personal data, and our normal trading partners will have yet another excuse to enact protectionist laws that discriminate against our world-leading tech nology companies
.
Hopefully, Congress will
see fit to consider this legislation in a

timely manner before DOJ’s unprecedented action triggers retaliatory actions by our allies and even those less friendly.
(International Business Times, by Sounak Mukhopadhyay, “War ‘Inevitable’ Between US,
China: Russian, Chinese Media,” http://www.ibtimes.com/war-inevitable-between-us-china-russianchinese-media-1982123, CMR)
Chinese and Russian media have started suggesting the possibility of a China-U.S. war
. While the national news agency in China calls it “inevitable,” a Russian news agency listed a number of indications that it said “proved’ the two nations were heading toward a military conflict. Clearly, there has been growing diplomatic tension between China and the
U nited
S tates. And according to reports, both countries have been spending lots of money on military preparations
. China's Xinhua News Agency reported that the present political situation put a question mark on building peaceful coexistence between China and the U.S.
“The situation has many people pondering how the two countries can avoid 'Thucydides's trap' -- the notion an established power becomes so anxious about the rise of a new power that a struggle leading to war becomes inevitable,” Xinhua reported. Russia's Pravda reported that
China had conducted a number of military exercises simulating an attack against Taiwan
. “Since the U.S. is committed to protecting Taiwan, a real conflict
of this nature would
almost certainly involve the U nited
S tates” the Russian news agency predicted.
The U.S. government blames Beijing for theft of
the personal data of
some 14 million
U.S. government workers
.
According to U.S. authorities, it was “an act of war.”
The U.S. says the breach also has compromised background information about intelligence and military personnel.
Sydney J.
Jr.
, deputy editor for defense publication Breaking Defense and 13 year journalist at National Journal and has won awards from the association of Military Reporters & Editors in
2008 and 2009, as well as an honorable mention in 2010, 10/1/13, China’s Fear Of US May Tempt Them
To Preempt: Sinologists, http://breakingdefense.com/2013/10/chinas-fear-of-us-may-tempt-them-topreempt-sinologists/
Because China believes it is much weaker than the United States, they are more likely to launch a massive preemptive strike in a crisis.
Here’s the other bad news:
The current US concept for high-tech warfare, known as Air-Sea Battle, might escalate the conflict even further towards a
“limited” nuclear war , says one of the top American experts on the Chinese military.
[This is one in an occasional series on the crucial strategic relationship and the military capabilities of the US, its allies and China
.] What US analysts call an “anti-access/area denial” strategy is what China calls “counter-intervention” and “active defense,” and the Chinese appraoch is born of a deep sense of vulnerability that dates back 200 years,
China analyst
Larry
Wortzel said at the Institute of World Politics: “The People’s Liberation Army still sees themselves as an inferior force to the American military, and that’s who they think their most likely enemy is.”
That’s fine as long as it deters China from attacking its neighbors. But if deterrence fails, the Chinese are likely to go big or go home.
Chinese military history from the Korean War in 1950 to the Chinese invasion of Vietnam in 1979 to more recent, albeit vigorous but non-violent, grabs for the disputed Scarborough Shoal suggests a preference for a sudden use of overwhelming force at a crucial point
, what Clausewitz would call the enemy’s
“center of gravity.”
“What they do is very heavily built on preemption,”
Wortzel said.
“The problem with the striking the enemy’s center of gravity is, for the United States, they see it as being in Japan, Hawaii, and the West Coast….That’s very escalatory .
” (Students of the American military will nod sagely, of course, as we remind everyone that President George Bush made preemption a centerpiece of American strategy after the terror attacks of 2001.) Wortzel argued that the current version of US Air-Sea Battle concept is also likely to lead to escalation. “China’s

dependent on these ballistic missiles and anti-ship missiles and satellite links,”
he said.
Since those are almost all land-based, any attack on them “involves striking the Chinese mainland, which is pretty escalatory.” “You don’t know how they’re going to react,”
he said.
“They do have nuclear missiles. They actually think we’re more allergic to nuclear missiles landing on our soil than they are on their soil.
They think they can withstand a limited nuclear attack, or even a big nuclear attack, and retaliate .”

(Jeff, CEO Peerstone Research, “The LEADS Act: A Transatlantic Olive Branch from the U.S. to
Europe Over Government Access to Data,” Feb 20, https://medium.com/@jeffgould/the-leads-act-atransatlantic-olive-branch-over-government-access-to-data-411fab0c8538, CMR)
A group of
American senators from both parties
are offering Europe an olive branch in the transatlantic war of words over Internet surveillance
. Concretely, they propose to update the
antiquated 1986 Electronic
Communications Privacy Act (
ECPA) by putting tighter limits on when and how U.S. courts can access electronic data stored abroad
. ECPA was a forward looking law when it was passed. Such things as the Internet and email already existed. Personal computers were commonplace. A few people even had (brick-sized) mobile phones. The law was expressly intended to give courts and police agencies conducting criminal investigations a legitimate way to get at data stored on these devices while still protecting the privacy rights of users. But the role and scale of online technology in the world are vastly different today than in 1986.
No one could have imagined then that one day hundreds of millions of Europeans would routinely store trillions of personal electronic documents on shared computers located in Europe but owned and remotely operated by American firms
. Such a scenario would have been pure science fiction. Nor of course did anyone in 1986 dream that a handful of terrorists could knock down New York’s tallest skyscrapers and kill thousands of innocents. By now most Europeans who follow privacy and surveillance issues know about the specific case that led to the Senators’ proposed ECPA amendment. In a nutshell, a U.S. Federal court in New York issued a warrant demanding that a U.S. Internet firm (Microsoft) turn over emails belonging to a foreign national that were stored on the firm’s servers in Ireland. According to press reports the case concerns drug trafficking, not terrorism. But instead of complying with the demand, Microsoft fought it and took the case to a Federal Appeals court. Observers expect that whatever the Appeals ruling the case will wind up at the Supreme Court. The dispute between the court which issued the warrant and Microsoft turns on the meaning of ECPA as originally written. Both sides agree that American law enforcement officials do not have the right to conduct searches or seize evidence overseas. For example, an FBI agent can’t hop on a plane to France warrant in hand, knock on the door of an American bank in Paris, and demand that the bank turn over the contents of a customer’s safe deposit box. This is especially true if the customer is not a citizen or resident of the United States. But it would even be true if the customer were American. Everyone agrees on this much. But the prosecutors in the case argue that the emails stored on Microsoft’s servers in Dublin are different. They argue that they won’t really be searching or seizing the emails until Microsoft brings them back to the United States. According to this logic the warrant will only actually be executed in New York, not in
Ireland. It is easy to mock this reasoning as twisted, perverse or insincere. Some have even speculated that the Department of Justice, recognizing that more and more evidence of interest to prosecutors resides on overseas servers, deliberately picked this fight in the hope that it could establish an advantageous precedent. No one can predict today whether the prosecutors will ultimately prevail. It will be up to the
Supreme Court to decide. Here is where the proposed amendment to ECPA comes in. Known as the LEADS Act (Law Enforcement Access to
Data Stored Abroad Act), the bill was introduced by two Republicans (Senators Hatch and Heller) and a Democrat (Senator Coons). They recognize that regardless of the outcome of Microsoft’s current legal battle, the fundamental question of how and when U.S. authorities can demand access to data abroad will only grow in importance. They therefore propose two simple but powerful rules governing what U.S. courts can do. A warrant for overseas data will only be valid if: (1) It concerns a U.S. citizen or permanent resident; and (2) It does not violate the laws of the foreign country where it is to be executed. The LEADS Act is broadly supported by U.S. high tech and media companies, as well as by leading privacy advocates.
The government of Ireland and one of the leading advocates of data protection reform in the European Parliament
, while not specifically endorsing the act, have submitted amicus briefs in support of Microsoft’s appeal
. Surprisingly, among the few significant industry players yet to publicly endorse the LEADS Act are
Google, Facebook and Yahoo. Perhaps they fear that the bill in its current form might encourage some foreign users in the belief that putting their data on foreign rather than U.S.-based cloud servers will protect them from the long arm of U.S. authorities. But there can be little doubt that these firms share the same concerns about U.S. access to overseas data as Microsoft, and they may yet give it their full support. Early indications are that the LEADS Act has a good chance of passing in the current session of Congress. It has strong support from both political parties and has so far not aroused any open opposition from the U.S. law enforcement community.
Europeans should welcome the
LEADS Act
and acknowledge that, even if it falls short of addressing all
their concerns in the wake of
the
Snowden
revelations, it is a powerful and incontestable sign
that the U.S. seeks reconciliation and compromise rather than continued conflict with Europe over these vital issues
.

*also a potential IL for a modeling adv
(Bryan, information security, privacy, and data protection lawyer as well as senior advisor of The Chertoff Group, a security and risk management advisory firm with clients in the technology sector, “Big Brother is watching EU,” 1/6, http://www.politico.eu/article/eu-privacysurveillance-us-leads-act/, CMR)
A strange — and strangely unnoticed — trend is emerging in the evolving global response to massive 2013 leaks about US surveillance activities.
While our European cousins talk privacy reform, the United States is actually moving ahead with it, albeit more slowly than many would like.
As the American side of the Atlantic inches toward self-restraint, many European governments are seeking sweeping new spying powers. Europe is at risk of falling behind the US in privacy reform
.
Following two post-Snowden reviews of US surveillance activities, the United States announced new limitations to its electronic surveillance activities, including additional privacy protections for Europeans and other non-US citizens, which few European countries currently afford
Americans. Much-criticized US surveillance activities, including the bulk telephone metadata program, are set to expire in days unless Congress intervenes. Meanwhile, the bipartisan Law Enforcement Access to Data Stored Overseas (
LEADS) Act and similar draft laws are moving through Congress and garnering broad support from technology companies, business organizations, and privacy and civil liberties advocacy groups.
Meanwhile
, across the pond, key European Union member states
, some harshly critical of US spying, are seeking dramatically enhanced surveillance powers
in the wake of the horrific Charlie Hebdo attacks in January. France’s lower house of parliament just passed a sweeping new spying bill that would empower French intelligence to deploy hi-tech tools such as vehicle tracking and mobile phone identification devices against individuals without judicial oversight; allow the government to force communications companies (including US companies) to sift through massive amounts of phone and internet metadata for potential terrorist communications and report results to the government; and give French intelligence services real-time access to “connection” data of possible terrorists. Prior to his reelection, British Prime Minister David Cameron promised to authorize British intelligence agencies to read “all messages sent over the Internet,” in a package of legal provisions called by critics the “snoopers’ charter.” This comes amidst admissions by British intelligence of extensive electronic communications surveillance and sophisticated “Computer Network Exploitation” (CNE) hacking, all without judicial supervision. At the same time, a parliamentary inquiry approved of ongoing British intelligence bulk data collection. And while
Ireland recently filed a brief opposing the enforcement of US search warrants for data stored in
Ireland
, the country recently joined Britain and Germany as “one of Europe’s top three offenders in undermining citizens’ rights,” according to a privacy lobbying group purporting to analyze 11,000 pages of confidential European Council documents concerning EU governments’
“secret” efforts to weaken EU privacy reforms. Reports citing leaked classified files indicate that “Germany’s external spy agency saves tens of millions of phone records every day,” collecting metadata on some 220 million calls daily, and carrying out “surveillance of international communications sent by both satellites and internet cables that pass through one of several key locations.” Such efforts reportedly are targeted, in significant part, at non-German citizens. Other European nations also are using or seeking broad surveillance powers in the wake of the Paris massacre and a number of smaller terrorist attacks and near misses. Even before the Paris attacks, then-
EU Justice
Commissioner
Viviane
Reding, a harsh critic of
reported
US surveillance activities, called out her continental colleagues for their hypocrisy: “If the EU wants to be credible in its efforts to rebuild trust …it also has to get its own house in order.”
Where you stand depends upon where you sit — it’s not surprising that Europeans critical of US surveillance activities in the wake of the September 11, 2001 attacks are today
, after less severe (though no less despicable) attacks on their own soil, seeking powers every bit as sweeping as those enacted in the U nited
S tates.
But it’s
nonetheless apparent that
, just as privacy reform appears to be trending in the United States, government snooping is ascendant in Europe
, the rhetoric of some EU politicians notwithstanding. So,
I present a neighborly challenge to
American friends and allies in Europe: Will you work to reform the
Mutual Legal Assistance Treaty (
MLAT
) criminal evidence sharing system as the United States has begun to do with the LEADS Act
? Will you expand the rights of Americans with regard to your governments’ surveillance as the United States has begun to do for your citizens? No nation will unilaterally disarm and none of us are safer when some are more vulnerable than others.
Our nations may be working to reform their own surveillance practices to better protect privacy, but their efforts will only be sustainable if we work together
.
US and European leaders should accelerate efforts towards true reform, without sacrificing our collective ability to defeat the growing threats to all of us.
And perhaps tone down the cross-
Atlantic attacks in the bargain
.

– Director of International Studies Program @ Virginia Polytechnic Institute & State
University [Dr. Yannis. A. Stivachtis (Professor of Poli Sci & Ph.D. in Politics & International Relations from Lancaster University), THE IMPERATIVE FOR TRANSATLANTIC COOPERATION,” The Research
Institute for European and American Studies, 2010, pg. http://www.rieas.gr/research-areas/globalissues/transatlantic-studies/78.html
There is no doubt that
US-European relations are in a period of transition
, and that the stresses and strains of globalization are increasing both the number and the seriousness of the challenges that confront transatlantic relations. The events of 9/11 and the Iraq War have added significantly to these stresses and strains. At the same time, international terrorism
, the nuclearization of North
Korea and
especially
Iran
, the proliferation of weapons of mass destruction (WMD), the transformation of
Russia
into a stable and cooperative member of the international community, the growing power of
China
, the political
and economic transformation and integration of
the
Caucasian
and
Central Asian
states, the integration and
stabilization of the
Balkan countries
, the promotion of peace and stability in the Mid dle
East
, poverty, climate change, AIDS and other emergent problems
and situations require
further cooperation
among countries at the regional, global and institutional levels. Therefore, cooperation between the U.S. and Europe is more
imperative than ever to deal effectively with these problems
. It is fair to say that the challenges of crafting a new relationship between the U.S. and the EU
as well as between the U.S. and NATO are more regional than global, but the implications of success or failure will be global.
The transatlantic relationship is still in crisis
,
despite efforts to improve it since the Iraq War. This is not to say that differences between the two sides of the Atlantic did not exist before the war. Actually, post-1945 relations between Europe and the U.S. were fraught with disagreements and never free of crisis since the Suez crisis of 1956. Moreover, despite trans-Atlantic proclamations of solidarity in the aftermath of 9/11, the U.S. and Europe parted ways on issues from global warming and biotechnology to peacekeeping and national missile defense. Questions such as, the future role of NATO and its relationship to the common European Security and Defense policy (ESDP), or what constitutes terrorism and what the rights of captured suspected terrorists are, have been added to the list of US-European disagreements.
There are two reasons for concern regarding the transatlantic rift. First, if European leaders conclude that Europe must become counterweight to the U.S
., rather than a partner,
it will be difficult to engage in the kind of open search for a common ground than a n elective partnership requires
. Second, there is a risk that public opinion in both the
U.S. and Europe will make it difficult even for leaders who want to forge a new relationship to make the necessary accommodations. If both sides would actively work to heal the breach, a new opportunity could be created.
A vibrant transatlantic partnership remains a real possibility, but only if both sides make the necessary political commitment.
There are strong reasons to believe that the security challenges facing the U.S. and Europe are more shared than divergent. The most dramatic case is terrorism. Closely related is the common interest in halting the spread of weapons of mass destruction and the nuclearization of Iran and North Korea. This commonality of threats is clearly perceived by publics on both sides of the Atlantic. Actually, Americans and Europeans see eye to eye on more issues than one would expect from reading newspapers and magazines. But while elites on both sides of the Atlantic bemoan a largely illusory gap over the use of military force, biotechnology, and global warming, surveys of American and European public opinion highlight sharp differences over global leadership, defense spending, and the Middle East that threaten the future of the last century’s most successful alliance.
There are other important
, shared interests
as well.
The transformation of Russia into a
stable cooperative member of the international community is a priority both for the U.S. and
Europe. They also have an interest in promoting a stable
regime in
Ukraine
.
It is necessary for the U.S. and EU to form a united front
to meet these challenges because first, there is a risk that dangerous materials related to
WMD will fall into the wrong hands; and second, the spread of conflict along those countries’ periphery could
destabilize neighboring countries and provide safe havens for terrorists
and other international criminal organizations. Likewise, in
the Caucasus and Central Asia both sides share a stake in promoting political and economic transformation and integrating these states
into larger communities such as the OSCE. This would also minimize the risk of instability spreading and prevent those countries of becoming havens for international terrorists and criminals. Similarly, there is a common interest in integrating the Balkans politically and economically.
Dealing with
Iran, Iraq, Lebanon, and the Israeli-Palestinian conflict as well as other
political issues in the Mid dle
East are
also of a great concern for both sides although the U.S. plays a dominant role in the region. Finally,
US-European cooperation will be more effective in dealing with the rising power of China
through engagement but also containment. The post Iraq War realities have shown that it is no longer simply a question of adapting transatlantic institutions to new realities. The changing structure of relations between the U.S. and Europe implies that a new basis for the relationship must be found if transatlantic cooperation and partnership is to continue.
The future course of relations will be determined above all by U.S. policy towards Europe and the Atlantic Alliance
. Wise policy can help forge a new, more enduring strategic partnership, through which the two sides of the

Atlantic cooperate in meeting the many major challenges and opportunities of the evolving world together. But a policy that takes
Europe for granted and routinely
ignores or
even
belittles Europe an concerns, may force Europe to conclude that the costs of continued alliance outweigh its benefits.

(Daniel J, John Marshall Harlan Research Professor of Law at the George Washington
University Law School, “Surveillance Law in Dire Need of Reform: The Promise of the LEADS Act,” March
24, https://www.teachprivacy.com/surveillance-law-in-dire-need-of-reform-the-promise-of-the-leadsact/, CMR)
The law regulating government surveillance and info rmation gathering is in dire need of reform
.
This law
, which consists of the Fourth Amendment and several statutes, was created
largely in the
19
70s and
19
80s and has become woefully outdated
.
The result is that law enforcement officials and intelligence agencies can readily find ways to sidestep oversight and protections when engaging in surveillance and data collection
. The gaps in current law are powerfully demonstrated by a very important case being fought out in federal court – Microsoft v. United States.
The
Department of Justice (
DOJ) convinced a federal court to issue a warrant to require Microsoft to turn over data it had stored in Ireland
. Microsoft has fought the warrant. Microsoft argues that for government officials to obtain data in a foreign country, they must go through the Mutual Legal Assistance Treaty (MLAT) between that country and the United States. The case now sits before the U.S. Court of Appeals.
The case shows how existing laws are being outpaced by changing tech nology.
With cloud computing, data can readily be stored in foreign countries, and ECPA doesn’t
really address the issue
.
The implications of the case are profound, affecting privacy protection in the cloud and the clash between the privacy laws of different nations
. In Congress, a new bill has been introduced to address the issue – the LEADS Act – which seeks to amend ECPA to prevent what the DOJ is attempting to do
in this case.

th
(Daniel J, John Marshall Harlan Research Professor of Law at the George Washington
University Law School, “Surveillance Law in Dire Need of Reform: The Promise of the LEADS Act,” March
24, https://www.teachprivacy.com/surveillance-law-in-dire-need-of-reform-the-promise-of-the-leadsact/, CMR)
Outdated Constitutional Interpretations and Statutes
The laws dealing with government surveillance and data gathering are best analogized to ancient ruins
.
U.S. Supreme Court decisions in the
19
70s created big holes in Fourth Amendment protection against government information gathering
. In a series of cases, the
Supreme Court held that people lacked a reasonable expectation of privacy in various types of data when maintained by third parties
– resulting in no Fourth Amendment protection
.
These unfortunate cases created a tear in the fabric of Fourth Amendment protection
, a tear that has become ever larger over time as an increasing number of third parties maintain personal data
. For example, many people now store and back up their digital files with cloud computing services
. Should they lose all Fourth Amendment protection over their documents?
The Supreme Court has never fully explored how far these cases go
.
The cases were decided nearly 40 years ago in an age when the cloud meant something you saw in the sky and a cookie was something you ate
.
Congress passed the Electronic Communications Privacy Act
(ECPA) in
1986
. This is the primary federal statute that regulates electronic surveillance and data gathering. The law was designed to provide additional protections beyond the Fourth Amendment – and to fill some of the gaps left by the Fourth Amendment in the wake of short-sighted decisions that didn’t make sense in light of emerging technologies.
With ECPA, Congress took lead over the courts in regulating electronic surveillance and data gathering
. Unfortunately, Congress failed to heed the fable of the Tortoise and the Hare.
Instead of continuing on in the race,
Congress took a nap
. . . and it is still sleeping
.
ECPA is now
nearly
30 years old
.
It is built around the Internet in the mid
-19
80s
, long before cloud computing took off, before webmail, before countless new tech nologies and developments
. But unlike the fable, the
tortoise (the
Supreme Court) has not
really finished the race
either, and still
keeps creeping along
. Consider the following quote by the Supreme Court: “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The quote concerns text messaging – in 2010! See City of Ontario v. Quon,130 S. Ct. 2619 (2010).
At this rate, nobody is going to finish the race, and tech nology marches on
.

(Ned, B.A., Tulane University, 2011, “WARRANTS IN THE CLOUDS: HOW
EXTRATERRITORIAL APPLICATION OF THE STORED COMMUNICATIONS ACT THREATENS THE UNITED
STATES’ CLOUD STORAGE INDUSTRY,” Volume 9, Issue 2, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1033&context=bjcfcl, CMR)
The advancement of tech nology and the global shift towards cloud data storage has created major rifts throughout the legal landscape
. Cloud technology has changed the way data is stored by breaking down borders and expanding jurisdictional reach.
Unfortunately, congressional legislation has failed to keep pace with the rapid changes and extraterritorial nature of the tech industry
.1
The current piece of congressional legislation that oversees data privacy protection within the U nited
S tates is the Stored Communications Act
(SCA),2 which was enacted as part of the broader Electronic Communications Privacy Act (ECPA) of 1986.3
However, the SCA is now almost three decades old, and its vague application to present cloud tech nology and worldwide tech nological expansion has exposed U.S. tech nology companies
, which utilize global cloud networks, to compliance difficulties from judicial and legislative uncertainty
.4 A recent dispute between Microsoft and the United States Government highlighted the disparity between the globalization of data storage, international privacy rights, and current congressional legislation.5 In what is described as a potentially “landmark case,”6 the U nited
S tates
District Court of the Southern District of New York
(the district court) upheld a warrant under the SC A7 requiring Microsoft to disclose personal data
, in particular private emails of a Microsoft e-mail user, stored on Microsoft servers in Dublin, Ireland
.s The search warrant relates to an ongoing narcotics investigation in the United States.4 The warrant was originally issued by a magistrate judge, who “held that [the] warrant did not violate [the] presumption against extraterritorial application of the law of the United States,”10 and was affirmed by a U.S. District Court Judge on appeal." In response to the issuance of the warrant, major U.S.-based tech companies have been in a frenzy to appeal the decision and argue for new or amended federal legislation to help prevent potential
backlash from the international community
.12 Microsoft and other technology and telecommunications giants, including Verizon Communications Inc.;
AT&T, Inc.; Apple Inc.; Cisco Systems, Inc.; among others (collectively, U.S. Technology Companies),13 are afraid that the expansion of a search warrant’s extraterritorial reach
, especially to non-U.S. citizens, would cause “foreign individuals and businesses [to] flee to their non-U.S. competitors.”
14 Verizon, AT&T, Apple, Cisco Systems, and the privacy group,
Electronic Frontier Foundation, have filed amicus briefs in support of Microsoft’s opposition to the extraterritorial reach of the warrant.15
These technology giants are dedicated to global data storage and transfer, serving clients from around the world.16 Most importantly, these companies, in particular Microsoft, sell cloud storage to multi-national corporations who pay Microsoft to keep personal information and communication secured on their servers. However, after the district court’s decision to uphold the warrant, the expanding reach of a vague and dated statute further restrains Microsoft and other U.S.-Technology Companies that rely on cloud data networks.17 Microsoft, Verizon, and
Cisco are all still reeling from international damage caused by Edward Snowden’s mass leak of U.S. National Security Agency (NSA) surveillance programs,18 which exposed the U.S. government’s widespread infringement of both U.S. and foreign citizens’ privacy through phone wiretaps and internet surveillance.19
The district courts’ recent affirmation of the SCA warrant against Microsoft
, in allowing the U.S. government to seize private electronic communication stored abroad without going through the traditional bilateral channels20 to obtain such evidence, further heightens fears of U.S. privacy intrusion both at home and aboard
.
This places a strong burden on U.S. Tech nology
Companies to interpret unclear and dated congressional legislation and attempt to construct a coherent and precise compliance policy for their business to assure certain privacy protections to their customers without violating domestic or international law
.21
Without a clear compliance policy outlining specific privacy protections for customers’ data stored around the world on global networks, Microsoft and other U.S. cloud companies risk losing large sums of business to either foreign data storage companies or data localization movements in the hopes of sheltering customers from the expansive jurisdictional reach of the SCA warrant
.22 Ultimately, the unclear application of the dated and vague SCA leads to impractical compliance problems for U.S.

Tech nology
Companies
, thereby threatening
their economic growth
.
As long as U.S. legislation lags behind,
U.S. Tech nology
Companies are at risk to losing business with international customers and nations
, potentially amounting to lost profits in the billions of dollars.23 In addition, the extraterritorial application of the SCA places pressure on international relations, particularly between the United States and the European Union (the E.U.), over data protection law,2"4 which only further constrains the U.S. technology and cloud data industry.
Microsoft’s ongoing legal battle with the U.S. government
25 highlights what is likely to be a recurrent debate over the expanding jurisdictional reach of the U nited
S tates with electronic info rmation now commonly stored abroad
. Instead of forcing the courts to interpret congressional legislation, this issue demands legislators to re-think lagging statutes that relate to electronic information and to take a more pro-active approach so that legislation more accurately reflects advances in technology. This Note recommends certain amendments to the SCA to improve its relevancy to modern technology, based on the newly introduced Senate bill entitled the Law Enforcement Access to Data
Stored Abroad Act (the LEADS Act).26

(Danielle, Senior Policy Analyst, Open Technology Institute, “Surveillance Costs: The NSA’s
Impact on the Economy, Internet Freedom & Cybersecurity,” July 29, https://www.newamerica.org/downloads/Surveillance_Costs_Short_Version.pdf, CMR)
Trust in American businesses has decreased since the initial reports on the PRISM program suggested that the NSA was directly tapping into the servers of nine U.S. companies to obtain customer data for national security investigations. 1 Given heightened concern about the NSA’s ability to access data stored by U.S. companies,
American companies that offer cloud computing and webhosting services are experiencing the most acute economic fallout
.
Nearly 50 percent of worldwide cloud computing revenue comes from the U nited
S tates, and the domestic market more than tripled in value from 2008 to 2014
. 2
However, within weeks of the first revelation, reports began to emerge that
American cloud computing companies
like Dropbox and Amazon Web Services were losing business to overseas competitors
. 3 The NSA’s PRISM program is predicted to cost the cloud computing industry from $22 to $180 billion over the next three years. 4 Recent reports suggest that those predictions may soon be borne out.
A
January
2014 survey of 300 British and
Canadian businesses found that 25 percent of respondents were moving their data outside of the U.S. and that an overwhelming majority was willing to sacrifice performance in order to ensure data protection
. 5 Similarly, a survey of 1000 “ICT decision-makers” from France, Germany, Hong Kong, the UK, and the U.S. conducted in
February and March 2014 found that the disclosures “have had a direct impact on how companies around the world think about ICT and cloud computing in particular.”
6
(Jonah Force, writes on Internet policy and cybersecurity issues, and formerly served in the
White House Office of the Cybersecurity Coordinator and as a Cybersecurity Teaching Fellow at Harvard,
“Problematic Alternatives: MLAT Reform for the Digital Age,” Jan 28, http://harvardnsj.org/2015/01/problematic-alternatives-mlat-reform-for-the-digital-age/, CMR)
Microsoft’s challenge is premised on the legal assertion that the government warrant does not permit extraterritorial searches, but two policy considerations are also central to its position. First, like many other major
American tech nology companies
, Microsoft face s the perception
, post-Snowden, that U.S. tech firms have been complicit in
—or at least overly submissive to—
NSA intelligence collection programs and
therefore cannot be trusted to protect foreign customers from
American government overreach
. Microsoft protested the warrant in part because of its desire to be seen to maintain a degree of independence from the U.S. government as well as protect the rights and privacy of its non-American customers. Secondly, and perhaps more importantly, Microsoft recognized circumvention of the MLAT process sets a troubling precedent for future extraterritorial data requests
(a view shared by the Irish government). By attempting to treat data stored abroad like domestic data,
Microsoft contends,
DOJ is dramatically expanding its reach into foreign states
—states with sovereign laws governing digital information stored within their borders.
It is also subjecting American firms with data stored abroad to multiple and potentially contradictory data protection rules. Given the push by nations around the world
, most critically within Europe, to update domestic data protection laws in ways that diverge significantly from American rules
, Microsoft argued that forced compliance with multiple and inconsistent discovery and disclosure requirements could result in endless stream of legal battles for tech firms operating abroad and
perhaps force American companies to entirely pull out of certain markets
.

(Ripon Advance News Service, “LEADS Act would protect U.S. data stored internationally,”
Feb 16, http://riponadvance.com/stories/510498932-leads-act-would-protect-u-s-data-storedinternationally, CMR)
Chairman of the Senate Republican High-Tech Task Force Orrin Hatch (R-UT) introduced bipartisan legislation on Thursday that will reform the existing Electronic Communications Privacy Act (ECPA). The Law Enforcement Access to Data Stored Abroad (
LEADS) Act states
that the
U nited
S tates government cannot enforce the disclosure of data from U.S. providers stored internationally, if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. citizen or company
. “
This is a pro-business, pro-innovation bill that will protect
American privacy in the Digital Age and promote trust in U.S. tech nologies worldwide
,” Hatch explained.
“While I agree in principle with the ECPA reform bills recently introduced in the House and Senate, neither establishes a framework for how the
U.S. government can access data stored abroad. As Congress works to reform our domestic privacy laws, we must modernize the legal framework for government access to digital data stored around the world
. This bill recognizes that these two issues are inextricably linked.” Hatch was joined by fellow Sens. Chris Coons (D-DE) and Dean Heller (R-NV) in introducing the legislation.
"
Law enforcement agencies wishing to access Americans' data in the cloud ought to get a warrant
,”
Coons said. “And just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country.
The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law
.
This
not only hurts
our businesses’ competitiveness and costs
American jobs
, but it also invites reciprocal treatment by our international trading partners
."
Without the passage of the legislation, people of other countries may be told not to use U.S. Internet services because American law enforcement has more access to data collection from those services even if the data is not stored in the U.S.
“The world is becoming more dependent on broadband Internet by the minute,” Heller added. “As this technological necessity continues to expand its role in our society, it is imperative the guaranteed rights of law-abiding citizens are balanced against the ability for law enforcement to do its job.
This bill moves us in the right direction
, and I will continue to work with all stakeholders to improve the bill so the LEADS Act becomes law.”

(Daniel, senior analyst with the Information Technology and Innovation Foundation and director of the Center for Data Innovation, 9/5, “Cross-Border Digital Searches: An Innovation-Friendly
Approach,” http://www.informationweek.com/strategic-cio/digital-business/cross-border-digitalsearches-an-innovation-friendly-approach/a/d-id/1306989, CMR)
As people and companies store more data in the cloud, new questions are arising about how law enforcement agencies gain access to that data and the impact those methods could have on the competitiveness of the US tech nology industry
.
Given the importance of this industry to the US economy, it's imperative
that the federal government not only establish an innovation-friendly process for cross-border digital searches, but also work with its trading partners to do the same
. The shortcomings of today's laws are being exposed in a case between Microsoft and the US government. Last December, as part of a drug investigation, an asyet-unidentified US law enforcement agency obtained a warrant for Microsoft to turn over copies of an unknown person's email account associated with a data center in Dublin, Ireland. Microsoft refused to comply, arguing that the US government can't force a private party to do what the government has no authority to do itself: conduct a search and seizure operation on foreign soil. Normally search warrants apply only to evidence stored within the US. A magistrate judge ruled against Microsoft's first challenge in April, and after Microsoft appealed, US District
Court Judge Loretta Preska upheld the decision on July 31. Microsoft will surely appeal this case to a higher court. The question here isn't whether the US government can gain lawful access to this data, but rather the process it should use to do so. Instead of using a search warrant, the US government agency in question could have sought access to this account information using a Mutual Legal Assistance Treaty. MLATs are agreements designed for law enforcement agencies to receive and provide assistance to their counterparts in other countries. The US has
MLATs with more than 50 countries, including Ireland. Despite these arrangements, the law enforcement agency preferred to obtain a search warrant because it argued the MLATs involve a "slow and cumbersome" process. No matter how the case is finally decided, there are potentially negative implications for US tech competitiveness
.
If the court supports the use of search warrants, it will feed the perception that the best way to protect data from the prying eyes of the US government is to store data overseas with a non-US provider
, which wouldn't be subject to US warrants.
Other countries may
also respond by passing laws to gain extraterritorial access to the data of companies operating within their borders
.
This has already begun
. On July 17, the UK adopted the Data Retention and Investigatory
Powers bill, which gives it sweeping new surveillance powers that apply to all communications service providers with a facility in the country. If this ruling holds, expect China , Russia , and other countries to pass similar laws
. Conversely, if the US court rules that search warrants can't be used overseas, foreign governments may try to force companies to store data within their countries' borders to make it impossible for the US to execute a search warrant. A recent example is Russia's edict requiring Internet companies to store Russian user information on data centers in Russia. In addition, companies (and criminals) could take steps to escape the scrutiny of law enforcement by dividing their data across multiple jurisdictions. Imagine if a company took an email and split the information up across servers in five countries.
A law enforcement agency would have to initiate five separate MLAT requests to view that message. And why stop at five -- the company could split the message into 10 pieces or a hundred, creating a labyrinthine legal environment for accessing data. The technical complexity involved would be minimal. The best option for addressing these challenges is to strengthen the MLAT process so that it's not, as the government argues, too slow, and so that companies can't take actions to make it difficult for government investigators to gain lawful access to data.
The
US government should take the lead in creating a timely and efficient international framework for allowing governments to request access to data stored abroad
.
This framework would help meet the needs of law enforcement agencies operating in a digital world and keep the US tech sector competitive globally
by making border distinctions inconsequential for legitimate law enforcement requests.
Just as international maritime law evolved to support the development of a global shipping industry
, and aeronautical law emerged to oversee the expansion of global civil aviation, so too should international stakeholders construct international rules to govern the global data economy when there's broad consensus on the goals
. As the Information Technology and Innovation Foundation has argued, by working to create a global pact on issues of intergovernmental access to data, the US can begin to reassure people at home and abroad that it respects

privacy and civil liberties while also allowing the US tech sector to thrive
. After all, data respects no boundaries, but governments should.

(Patrick, president of the Media Institute, a nonprofit organization that promotes free speech, sound communications policy and excellence in journalism, “The LEADS Act and cloud computing,” March 30, http://thehill.com/blogs/pundits-blog/technology/237328-the-leads-act-andcloud-computing, CMR)
Nor is the suffering to be endured just by cloud computing companies. As published in a paper by the Media Institute, media and privacy lawyer
Kurt Wimmer makes a compelling case that media companies may be especially sensitive to issues like those addressed by the
Microsoft case and the
LEADS Act
legislation:
In an era of tight budgets for newsrooms and infrastructure, cloud computing has helped many media companies reduce costs and make their newsgathering operations more efficient and effective
.
It can be much more efficient for a newsgathering and publishing operation to purchase a package of cloud-based services
(e.g., word processing, photography, publishing, storage) rather than maintain its own IT department, servers, and software
.
Although there are substantial advantages for media companies in adopting cloud-based technologies, there are also risks.
Newsgathering operations routinely handle highly sensitive info rmation, and they rely on a foundation of trust between reporters and their confidential sources
.
If a media organization concludes
that entrusting its data with a cloud service provider will result in that data being less private or secure
, then the organization is less likely to embrace cloud tech nologies. ... This concern has been accentuated by the controversy surrounding Edward Snowden's disclosures in 2013 regarding government surveillance. Particularly for media organizations with headquarters or operations outside the United States, the
Snowden disclosures increased concern that if the companies entrusted their data to a U.S. cloud provider, that would make it easier for U.S. law enforcement to obtain their data
. For media companies, these are not abstract questions. As the Department of Justice (DOJ) recognized in updating its rules regarding subpoenas to reporters, maintaining
the confidentiality
of the newsgathering process is essential to
both a free press and a working democracy
. The
DOJ
now has
strong guidelines governing the considerations that will be considered before subpoenas will be directed to reporters, but these are only internal guidelines and they only apply to the DOJ
. The bipartisan
LEADS Act provides a path forward to update the law to permit the cloud to be more meaningful and useful to media companies
— and to others concerned about the privacy and security of their data
. And by doing so, Congress can bolster the
competitiveness of an emerging and important area of our info rmation economy
.

Zalmay
was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George W. Bush and the director of policy planning at the Defense Department from 1990 to 1992, “ The Economy and National Security”, 2-8-
, http://www.nationalreview.com/articles/print/259024
We face this domestic challenge while other major powers are experiencing rapid economic growth. Even though countries
such as China,
India, and Brazil have profound political, social, demographic, and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power.
These trends could
in the long term produce a multi-polar world
.
If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when a new international order will emerge
.
The closing of the gap
between the United States and its rivals could intensify geopolitical competition among major powers, increase incentives for local powers to play major powers against one another, and undercut our will to preclude or respond to international crises because of the higher risk of escalation.
The stakes are high
. In modern history, the longest period of peace among the great powers has been the era of U.S. leadership
. By contrast
, multi-polar systems have been unstable, with their competitive dynamics resulting in frequent crises and major wars among the great powers
.
Failures of multi-polar international systems produced both world wars
.
American retrenchment could have devastating consequences.
Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats
. Under this scenario, there would be a heightened possibility of arms races, miscalc ulation, or other crises spiraling into all-out conflict.
Alternatively, in seeking to accommodate the stronger powers, weaker powers may shift their geopolitical posture away from the U nited
S tates. Either way, hostile states would be emboldened to make aggressive moves in their regions
. As rival powers rise,
Asia
in particular is likely to emerge as a zone of great-power competition
.
Beijing’s economic rise has enabled a dramatic military buildup focused on acquisitions of naval, cruise, and ballistic missiles, long-range stealth aircraft, and anti-satellite capabilities. China’s strategic modernization is aimed, ultimately, at denying the United
States access to the seas around China. Even as cooperative economic ties in the region have grown, China’s expansive territorial claims — and provocative statements and actions following crises in Korea and incidents at sea — have roiled its relations with South Korea, Japan, India, and
Southeast Asian states. Still, the U nited
S tates is the most significant barrier facing Chinese hegemony and aggression.
Given the risks, the U nited
S tates must focus on restoring its economic
and fiscal condition while checking and managing the rise of potential adversarial regional powers such as China. While we face significant challenges, the U.S. economy still accounts for over 20 percent of the world’s GDP.
American institutions
— particularly those providing enforceable rule of law — set it apart from all the rising powers
. Social cohesion underwrites political stability.
U.S. demographic trends are healthier than those of any other developed country
. A culture of innovation, excellent institutions of higher education, and a vital sector of small and medium-sized enterprises propel the U.S. economy in ways difficult to quantify.
Historically, Americans have responded pragmatically, and sometimes through trial and error, to work our way through the kind of crisis that we face today.

Bryan Cunningham, who is an information security, privacy, and data protection lawyer, and a senior adviser of The Chertoff Group, a global security advisory firm that advises clients on cyber security. Formerly, he was a U.S. civil servant, working for the CIA and serving as deputy legal adviser to National Security Adviser Condoleezza Rice- TheHill, 6-19-2015, "Measuring MLAT," http://thehill.com/blogs/congress-blog/foreignpolicy/245454-measuring-mlat
Measuring a problem is a first step to solving it.
Many
, myself included, have identified problems with the
“Mutual Legal
Assistance Treaty” (
MLAT
) system
used by one country to retrieve admissible criminal evidence stored in another. Based on formal international agreements, a country needing evidence (the “requesting country”) under the control of another country (the “responding country”) transmits a written request to the responding country on behalf of state or federal prosecutors in the requesting country. The responding country reviews the request and, if so inclined, secures the evidence under its own laws and, finally, transmits the evidence back to the requesting country. Anecdotal evidence
, including the experience of state and federal prosecutors in the United States, suggests that the MLAT process can be slow and cumbersome
.
Leaders in both political parties
, with support from the
U.S. Chamber of Commerce, the Center for Democracy, and many leading U.S. Internet and other technology companies, have voiced the urgent need for MLAT reform
. President Obama’s 2010 National Security Strategy cited the need for our law enforcement agencies to “cooperate effectively with foreign governments” in furtherance of our safety and security, in particular to counter cybersecurity threats.
Former Attorney General Holder cited this presidential statement to support a significant budget increase request for Department of Justice
MLAT processing, stating that, without MLAT reform “our relationships with our international law enforcement partners and U.S. Internet communication providers are at risk, and our national security and diplomatic efforts are threatened.” Republican Sen. Orrin Hatch
(Utah), with bipartisan support, introduced
the Law Enforcement Access to Data Stored Overseas (“
LEADS
”)
Act
, both this year and last
, including MLAT reform procedures
, in part to help protect U.S. Internet and other businesses from being trapped between inconsistent legal obligations in the U.S. and overseas, stating: “The way electronic data is used and stored globally has changed considerably [in recent decades]. . . . This presents unique challenges for a number of industries, who are often faced with the question of whose laws they must follow – American law or the laws where the electronic data is stored.” Bipartisan support is one thing, albeit a sadly rare one. Evidence is another. In support of their request for Congress to “assign the highest priority” to MLAT reform, a consortium of leading technology, privacy and civil liberties and business groups cited a “one thousand percent increase in requests for electronic records” submitted to the Department of Justice (“DOJ”) by foreign countries over the last decade
.
In 2014, DOJ received 3,270 foreign requests for assistance but only granted assistance, in whole or in part, in
1,465 cases, or about 45 percent. Earlier this year
, DOJ said it was handling more than 10,000 requests from U.S. prosecutors for evidence and the return of fugitives overseas. Without reform,
DOJ projected
they will have, by 2020, a backlog of more than 16,000 MLAT-related requests. Clearly there is a problem
. But how bad is it? The answer depends on a number of facts that simply are not in the public domain. How many of the backlogged cases are terrorism or weapons-of-mass destruction-related? How many are cyberattack related? Serious crimes like murder? How many actual prosecutions are derailed because of slow response time, backlogs, resource constraints, and the like? Are the problems centered in a few specific countries or are they systemic? Obviously, even a few cases of, for example, murder, are serious to the survivors of victims and the communities in which the victims lived, but the magnitude of the problem depends not only on the raw numbers but on the impact of the broken system on actual cases, both here and abroad. The LEADS Act was initially introduced in September 2014 and, to date, Congress has held no hearings to evaluate the magnitude of the problem. Congress should do so. Beyond hearings, the LEADS Act has several provisions directing
MLAT reform by the Department of Justice, including better tracking and transparency of MLAT requests
. DOJ is seeking an additional $32 million in funds for processing MLAT requests. But, of course, any actions by the U.S. Government can only affect our response to foreign requests. At least as urgently needed is reform and modernization of the entire international system for mutual legal assistance, which should start with improved technology and procedures with our closest allies and those other countries from which we most urgently need information in our most important cases. All such efforts will be enhanced by better public information about the scope of the problem. Cunningham is an information security, privacy, and data protection lawyer, and a senior adviser of The Chertoff Group, a global security advisory firm that advises clients on cyber security. Formerly, he was a U.S. civil servant, working for the CIA and serving as deputy legal adviser to National Security Adviser Condoleezza Rice.

(Karen S, has spent 28 years in the federal government and most recently was a presidential appointee as the administrator for E-Government and Information Technology at the Office of
Management and Budget, national director for the US Cyber Challenge, “LEADS Act is logical path toward much-needed ECPA reform,” March 13, http://thehill.com/blogs/congressblog/technology/235582-leads-act-is-logical-path-toward-much-needed-ecpa-reform, CMR)
The necessity of reforming the Electronic Communications Privacy Act (ECPA) has long been talked about in Congress, and it is time to take action. A sensible and bipartisan bill has been introduced that gives us a realistic path to reform. That bill is the Law Enforcement Access to Data
Stored Abroad (LEADS) Act – we should examine it seriously. In today’s Digital Age, we store incalculable quantities of personal information on cloud servers which may be located anywhere in the world, something 1980s-era ECPA never anticipated. It’s time to modernize the way we conduct digital trade and the legal framework that controls how law enforcement agencies interact with this data. With little fanfare, this bipartisan bill was recently reintroduced by Sens. Orrin Hatch (R-Utah), Dean Heller (R-Nev.) and Chris Coons (D-Del.) last month (a companion bill was also introduced in the House). The bill will help achieve several important outcomes. LEADS will improve data privacy protections for
U.S. citizens and residents while strengthening law enforcement cooperation with other nations.
The bill
also preserves the essential balance between security and privacy. At the same time, it will signal to our foreign partners that we are serious about improving law enforcement cooperation with them
.
In these times, such improvements are vital to ensuring effective functioning of our law enforcement agencies while maintaining
the privacy rights
of our citizens. We have all come to expect a certain level of privacy in our personal communications. Our law enforcement agencies must follow procedures established by Congress and the courts to gain access to personal correspondence and data files. These rules also
govern access to info rmation
held overseas and controlled by long-standing mutual legal assistance treaties
(
MLATs
).
But these clear principles have been partly obscured by the digital nature of today’s communications.
Today many data centers operated by American companies are located in foreign countries and their electronic footprints cross numerous jurisdictions. In these changing conditions,
U.S. courts are now serving warrants to American tech nology companies demanding access to customer data stored overseas. We must bring greater
clarity to these procedures by updating our laws to reflect today’s circumstances
.
The LEADS Act is an ideal opportunity to do this.
It removes the gaps in ECPA by specifying that U.S. warrants apply to data stored abroad only when the owners are U.S. persons
(citizens or residents) and only when execution of the warrants does not violate foreign laws
. The bill also requires that the U.S. improve its MLAT procedures, which are the primary alternative mechanism to warrants in these situations.
These clarifications
to ECPA can only enhance U.S. cooperation with other governments
.
Strong relationships of mutual confidence with these governments are vital to the ability of our law enforcement agencies and courts to carry out their missions effectively . There are many examples
from my service in government that illustrate the importance of U.S. cooperation with other countries as it relates to effective policy implementation
, and I’d like to highlight two of them. Established in 2002 by Congress, transportation worker identification cards (TWIC) are intended to minimize the risk of bad actors accessing key aspects of the maritime transportation system.
Effective policy implementation meant the U.S., Canada and Mexico had to work together to make technical requirements interoperable.
Treaties governed the intergovernmental work. Policy guidelines set the technical implementations in motion in each participating country. In addition
, a consortium of countries composed of Australia, New Zealand, Canada, the U.K. and the U.S. met regularly to share best practices for expanding
e-government to improve services to the citizen, which included info rmation sharing across law enforcement agencies
. Each country used this information and implemented new approaches to bolster law enforcement cooperation without harming constituent services.
Without trust, reciprocity
and shared information, these efforts will be futile
.
Only by respecting the Golden Rule when cooperating with other countries can we hope to produce real results
.
The LEADS Act will strengthen our ability to maintain these productive relationships with international partners to the real benefit of American citizens
. It is legislation

like
LEADS
that will help the U.S. achieve broader, much-needed ECPA reform
. The goal is clear – the laws should ensure that data stored in the cloud receives the same legal protections as data stored in our homes and at work
. Senators and representatives have the opportunity to act on the legislation to ensure we do unto others as we would have them do unto us.
It’s time to provide better data privacy protections for our citizens while preserving U.S. relationships abroad
.
I encourage Congress to take up The LEADS Act this session and strengthen
America’s leadership in preserving the balance between security and privacy.
(Ned, B.A., Tulane University, 2011, “WARRANTS IN THE CLOUDS: HOW
EXTRATERRITORIAL APPLICATION OF THE STORED COMMUNICATIONS ACT THREATENS THE UNITED
STATES’ CLOUD STORAGE INDUSTRY,” Volume 9, Issue 2, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1033&context=bjcfcl, CMR)
Additionally, the current extraterritorial application of the SCA warrant does not allow the U.S. government to obtain electronic information from anyone for any reason. There are constitutional measures in place, in particular the Fourth Amendment that requires the U.S. government to show before a judge probable cause for issuing the SCA warrant. To establish probable cause, the U.S. government must establish the individual in question is suspected of illegal activity and that obtaining the e-mails located abroad is vital to the ongoing investigation.236 The extraterritorial application of the SCA would not unduly expand the power of the U.S. government to freely obtain any electronic information from anybody it so chooses. However, there are serious problems with allowing the U.S. government to bypass the MLAT process altogether
. Instead, the U.S. government has chosen to take an expansive interpretation of a dated statute to allow the U.S. government to obtain electronic evidence without the consent or even request of the foreign nation where the electronic evidence is stored.
"37 It was able to do this because the SCA is so vague to begin with and therefore can be construed widely. The courts had little choice but to 233. See uphold the extraterritorial application of the SCA warrant based on current legislation.
Improving the MLAT process under the LEADS
Act is a great start to establishing a procedure for the U nited
S tates to obtain electronic evidence stored abroad
.
It allows the already established legal channels for exchanging evidence between nations to proceed as intended
, while also accounting for the problems that nations,
such as the United States, now face when investigating and prosecuting criminal matters due to the ubiquitous presence of electronic info rmation. It remains to be seen if such an online MLAT database can be created. More importantly, the bill itself is the foundation for a global conversation about how to deal with the transfer of electronic data stored around the world for criminal investigations
.238
Customers of U.S. Tech nology
Companies seek certain assurances of the privacy of their info rmation that they store on cloud servers
. In turn, U.S. Technology Companies must be able to provide customers with reasonable expectations of their privacy rights. In addition, U.S. Technology Companies need clear and precise compliance standards so as not to violate domestic and international law. All of these factors conflict with the uncertainty created by the extraterritorial application of the current SCA.239
The global discussion must continue in order to help find the balance between the needs of the U.S. government’s ability to efficiency investigate criminal matters in conjunction with U.S. Tech nology
Companies needs of continued financial success and privacy protections
.
(Alan, Research Assistant with the Information Technology and Innovation Foundation,
“The LEADS Act presents a path forward for cross-border digital searches,” Sept 22, http://www.innovationfiles.org/the-leads-act-presents-a-path-forward-for-cross-border-digitalsearches/, CMR)
Last week, Senators Hatch, Coons and Heller introduced the Law Enforcement Access to Data Stored Abroad (
LEADS) Act
which seeks to clarify the powers that warrants issued by the U.S. courts have on data stored abroad
. The LEADS Act also

focuses on reforming the Mutual Legal Assistance Treaty (MLAT) process, which are agreements designed for law enforcement agencies to receive and provide assistance to their counterparts in other countries.
If enacted, this law could have
both immediate effects on a current court case, and far-reaching effects on international agreements for cross-border access to data for law enforcement purposes
. Until now, the U.S. government has argued
that it could use the powers granted to it under
the Electronic Communications Privacy Act (
ECPA) to gain lawful access to data stored abroad if the company storing it had a presence on U.S. soil
.
The LEADS Act would clarify ECPA, stating specifically
that the U.S. government cannot compel the disclosure of data from U.S. providers stored abroad if accessing that data violates the laws of the country where it is stored or if the data is not associated with a U.S. person
—a citizen or lawful permanent resident of the United States, or company incorporated in the United
States.
The LEADS Act would
also seek to improve the
federal government’s
MLAT process
. It would increase accessibility and transparency by requiring an online intake form and docketing system where foreign governments could both submit MLAT requests electronically and track the status of those requests. Under the Act, the Department of Justice (DOJ) would also be required to notify providers that requests it receives are pursuant to an MLAT. Additionally, it would seek to provide accountability by requiring the DOJ to annually publish statistics on the number of MLAT requests it receives and completes, as well as their average processing time. These improvements are designed to increase the efficiency of the DOJ’s handling of foreign MLAT requests, which often languish due to lack of adequate resources. The hope here is while the U.S. government cannot do much to improve other governments’ MLAT processes, it can streamline its own and contend that others should do likewise. Finally, the Act provides a sense of Congress that data localization imposed by foreign governments is incompatible with the borderless nature of the Internet, an impediment to online innovation, and unnecessary to meet the needs of law enforcement. This proclamation is aimed at potential criticism of this proposal: that foreign governments may store their data within their borders to keep it away from the prying eyes of the U.S. government.
The need for this law is reflected in a current court case between Microsoft and the U.S. government
. Last year, as part of a drug investigation, an as yet unidentified U.S. law enforcement agency obtained a warrant compelling Microsoft to surrender data from an unknown person’s email account stored in a data center in Dublin, Ireland. Microsoft refused, arguing that the U.S. government cannot force a private party to conduct a search and seizure operation on foreign soil. Microsoft lost its first challenge in April and its first appeal in July, and has signaled its intention to appeal the case further. In a recent op-ed, Daniel Castro and I argued that the Microsoft Ireland case could lead to several unintended consequences and strengthening the MLAT process was the best alternative. The LEADS Act takes that approach
, and we commend Senators Hatch, Coons, and Heller for starting this discussion.
Congress should move expediently to take up the LEADS Act
. With Microsoft’s appeal hearing expected sometime next year and other countries looking to U.S. actions as a template for their own laws, this conversation cannot wait
.
The underlying premise of the bill is two-fold: That U.S. law enforcement agencies should be able to compel service providers to disclose customer communications only with a judicial warrant issued under the Constitutional standard of probable cause, and that U.S. warrants should normally only reach content stored in the U.S. The bill would allow U.S. warrants served on providers in the U.S. to reach content stored outside the U.S. when the content is in an account held by a “U.S. person” (meaning, in the case of an individual, a citizen, or permanent resident alien). In all other cases, when seeking content stored abroad, even on servers owned by U.S. companies, the U.S government would have to comply with the law of the country in which the data is stored. Requiring warrants for all content stored in the U.S. would mark a significant step forward for privacy
The codification of the warrant-for-content rule has been a goal of CDT and the Digital Due Process coalition for many years. By introducing this bill, Senators Hatch, Coons, and Heller join Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) as leaders in the movement to bring the Electronic Communications Privacy Act into the 21st
Century.[1] Requiring warrants for all content stored in the U.S. would mark a significant step forward for privacy. Under the
Hatch-Coons-Heller bill
the government, when it does obtain content with a warrant, would have to

provide to the user notice of such disclosures (but notice could be delayed). Currently, when the U.S. government uses warrants to compel service providers to disclose the stored emails of their customers, there is no requirement that the government provide notice of the seizure to the person whose emails are disclosed. The notice requirement in the Hatch-
Coons-Heller bill represents a wise and balanced approach. CDT believes that U.S. warrants are necessary, but not sufficient to compel disclosure of content that a U.S. provider stores abroad.
Rather, the U.S. government must also secure the cooperation of the foreign government
through
mutual legal assistance treaty
MLAT) or, in the absence of such a treaty, through informal cooperation of the foreign government.
However, it is widely admitted that the MLAT process for trans-border access does not work very well now. Basically, it is under-resourced and too slow. Recognizing that the MLAT process is the best way to accommodate the interests of two governments when one country seeks data stored in another country, the LEADS Act includes a number of sensible improvements to the U.S. MLAT process; improvements that the U.S. can hold up as a model for other countries to emulate
The bill would require the Department of Justice to create an online intake form through which foreign governments could request mutual legal assistance, and it would permit the DOJ to give preference to requests made on-line. The bill also would require the DOJ to track and report on its processing of MLAT requests. These requirements are designed to make MLAT processing more efficient and transparent to the foreign government seeking the disclosures. The
Department of Justice had already sought a $25.1 appropriation to hire more lawyers to handle MLAT requests it receives and makes. CDT supports this funding request and believes that, should the
LEADS Act pass, MLAT funding should be increased to help DOJ implement the improvements in the bill.
The LEADS Act creates one exception to the principle that U.S. warrants are not sufficient to reach content stored abroad… This U.S. person exception gives us pause. This U.S. person exception gives us pause. One way to look at it, and at the bill as a whole, is that it extends the warrant protection to all content stored in the U.S., regardless of citizenship of the account holder, and it extends the warrant requirement to all content of U.S. persons stored by U.S. companies abroad, while disavowing U.S. claims to unilaterally obtain the content of non-U.S. persons stored abroad.Looked at that way, the U.S. person exception is not an exception
– it is a further extension of the warrant requirement. It will reduce the burden the bill would otherwise place on the MLAT process because MLATs would not be necessary for content stored abroad in an account a U.S. person had established. On the other hand, the exception may be difficult to administer. Sometimes, the citizenship or residence of the account holder will be unknown, and when it is, does the warrant reach that stored content, or not? Also, the exception would seem to create some odd results. Consider, for example, two people working side-byside in the U.S., one a citizen and one a foreign national. The LEADS Act would establish one rule (the extraterritorial warrant) for U.S. law enforcement to access content that a U.S. provider stores abroad on behalf of the American, and a different rule (the MLAT process) for the person who sits in the cubical next door, but who happens to be a non-citizen working in the U.S. on a temporary visa. There is also a risk that the LEADS Act will increase the pressure for data localization mandates. Also, we have to consider how foreign governments will react. Some adverse consequences would be mitigated because the LEADS Act would make it clear that data stored in the U.S. could be disclosed only with a warrant. Even if foreign governments copied the LEADS
Act’s extraterritorial assertion of authority over data regarding their own citizens, those governments could not unilaterally force U.S. companies to disclose data stored in the U.S. ECPA already protects that data and requires compliance with the MLAT process, and the LEADS Act enhances that protection. However, all stakeholders need to think carefully about how the
LEADS Act would affect the global balance of privacy versus government power with respect to data U.S. providers store outside the U.S. for account holders who are not Americans. There is also a risk that the LEADS Act will increase the pressure for data localization mandates. The bill includes language that puts the Senate on record as opposing data localization, but it may not be enough. Finally, it is not clear how the bill would apply to providers who move data to different data centers around the globe in order to balance the burden on their network and better serve their users. If a load-balancing provider stores a user’s data at one moment in India, the next in the U.K., and the next in the U.S., will the U.S. warrant reach the data because the data at some point comes to the U.S.? These are difficult questions with which governments and civil society groups around the world must grapple. We do not purport to have all the answers. A global dialogue is needed. Kudos to Senators Hatch, Coons, and Heller for prompting that dialogue.
(Bryan is an information security, privacy, and data protection lawyer, and a senior adviser of The Chertoff Group, a global security advisory firm that advises clients on cyber security.
Formerly, he was a U.S. civil servant, working for the CIA and serving as deputy legal adviser to National
Security Adviser Condoleezza Rice. “Measuring MLAT” The Hill June 19, 2015, 10:00 am http://thehill.com/blogs/congress-blog/foreign-policy/245454-measuring-mlat 7-9-15)
Measuring a problem is a first step to solving it. Many, myself included, have identified problems with the “Mutual Legal Assistance Treaty” (MLAT) system used by one country to retrieve admissible criminal evidence stored in another. Based on formal international agreements, a country needing evidence (the “requesting country”) under the control of another country (the
“responding country”) transmits a written request to the responding country on behalf of state or federal prosecutors in the requesting country. The responding country reviews the request and, if so inclined, secures the evidence under its own laws and, finally, transmits the evidence back to the requesting country. Anecdotal evidence, including the experience of state and

federal prosecutors in the United States, suggests that the MLAT process can be slow and cumbersome. ****Leaders in both political parties, with support from the U.S. Chamber of
Commerce, the Center for Democracy, and many leading U.S. Internet and other technology companies, have voiced the urgent need for MLAT reform. President Obama’s 2010 National
Security Strategy cited the need for our law enforcement agencies to “cooperate effectively with foreign governments” in furtherance of our safety and security, in particular to counter cybersecurity threats. Former Attorney General Holder cited this presidential statement to support a significant budget increase request for Department of Justice MLAT processing, stating that, without MLAT reform “our relationships with our international law enforcement partners and U.S. Internet communication providers are at risk, and our national security and diplomatic efforts are threatened.” ****Republican Sen. Orrin Hatch (Utah), with bipartisan support, introduced the Law Enforcement Access to Data Stored Overseas (“LEADS”) Act, both this year and last, including MLAT reform procedures, in part to help protect U.S. Internet and other businesses from being trapped between inconsistent legal obligations in the U.S. and overseas, stating:
“The way electronic data is used and stored globally has changed considerably [in recent decades]. . . . This presents unique challenges for a number of industries, who are often faced with the question of whose laws they must follow – American law or the laws where the electronic data is stored.” ****Bipartisan support is one thing, albeit a sadly rare one. Evidence is another. In support of their request for Congress to “assign the highest priority” to MLAT reform, a consortium of leading technology, privacy and civil liberties and business groups cited a “one thousand percent increase in requests for electronic records” submitted to the Department of Justice (“DOJ”) by foreign countries over the last decade. In 2014, DOJ received 3,270 foreign requests for assistance but only granted assistance, in whole or in part, in 1,465 cases, or about 45 percent. Earlier this year, DOJ said it was handling more than 10,000 requests from U.S. prosecutors for evidence and the return of fugitives overseas. Without reform, DOJ projected they will have, by 2020, a backlog of more than 16,000 MLAT-related requests. *** Clearly there is a problem.
But how bad is it? The answer depends on a number of facts that simply are not in the public domain. How many of the backlogged cases are terrorism or weapons-of-mass destructionrelated? How many are cyberattack related? Serious crimes like murder? How many actual prosecutions are derailed because of slow response time, backlogs, resource constraints, and the like? Are the problems centered in a few specific countries or are they systemic? Obviously, even a few cases of, for example, murder, are serious to the survivors of victims and the communities in which the victims lived, but the magnitude of the problem depends not only on the raw numbers but on the impact of the broken system on actual cases, both here and abroad. *** The LEADS Act was initially introduced in September 2014 and, to date, Congress has held no hearings to evaluate the magnitude of the problem. Congress should do so. Beyond hearings,
by the Department of Justice
. DOJ is seeking an additional $32 million in funds for processing MLAT requests. But, of course,
only
At least as urgently needed is reform and modernization of the entire international system for mutual legal assistance, which should
with our closest allies and those other countries from which we most urgently need information in our most important cases. *** All
Alan McQuinn is a Research Assistant with the Information Technology and Innovation Foundation focusing on a variety of issues related to information technology and telecommunications, including digital copyrights, drones, privacy, egov, cryptocurrency and IT procurement- Alan
Mcquinn, 9-22-2014, "The LEADS Act presents a path forward for cross-border digital searches," Innovation Files, http://www.innovationfiles.org/the-leads-act-presents-a-path-forward-for-cross-border-digital-searches/ - See more at: http://www.innovationfiles.org/the-leads-act-presents-a-path-forward-for-cross-border-digital-searches/#sthash.POfqTfOw.dpuf
In a recent op-ed, Daniel Castro and I argued that
the Microsoft Ireland case could lead to several unintended consequences and strengthening the MLAT process was the best alternative. The LEADS Act takes that approach, and we commend Senators Hatch, Coons, and Heller for starting this discussion. Congress should move expediently to take up the LEADS Act.
With
Microsoft’s appeal hearing expected sometime next year and other countries looking to U.S. actions as a template for their own laws, this conversation cannot wait.

(Karen S. Evans is national director of the U.S. Cyber Challenge, a nationwide talent search and skills development program focused specifically on the cyber workforce,
Julie M. Anderson is a principal at AG Strategy Group, “Much-needed bipartisan privacy reform: Support
LEADS,” March 23, http://www.federaltimes.com/story/government/it/blog/2015/03/23/electroniccommunications-privacy-act-reform/70330234/, CMR)
The LEADS Act relies on existing international treaties to regulate the request and access to emails across borders
. The procedures employed by these treaties are not perfect, and that is where
LEADS is beneficial in setting forth significant process improvements
, specifying
that
U.S. warrants apply to data stored abroad tied to U.S. citizens or residents only when execution of the warrants does not violate foreign laws
.
Only when the U.S. reasserts its leadership on these issues will it be able to fully benefit from its international relationships
.
Any U.S. government action absent of overall ECPA reform could hamper future cooperation from law enforcement agencies in foreign countries
. Numerous groups – including technology companies, leading media, and privacy organizations – have aligned their efforts to support clarifying legal access to personal communications.
Members of both parties have signed on to the bill introduced in both chambers of Congress.
The LEADS Act
is an important first step in clarifying and strengthening ECPA. It will enhance
the mutual trust and reciprocity that U.S. has built over time with our foreign partners.
And this
, in turn, will help our country continue to benefit from international relationships aimed at improving law enforcement cooperation
. In a time of gridlock and increasing partisanship,
LEADS is one place where Washington could work to improve security and privacy for its people.

(Jonah Force, writes on Internet policy and cybersecurity issues, and formerly served in the
White House Office of the Cybersecurity Coordinator and as a Cybersecurity Teaching Fellow at Harvard,
“Problematic Alternatives: MLAT Reform for the Digital Age,” Jan 28, http://harvardnsj.org/2015/01/problematic-alternatives-mlat-reform-for-the-digital-age/, CMR)
MLATs are a cornerstone of global cooperation on law enforcement
and one of the most widely used mechanisms for requesting foreign assistance in domestic criminal investigations and prosecutions.
MLATs are broadly worded to allow for cooperation on a wide range of law enforcement issues, like locating and extraditing individuals, freezing assets, requesting searches and seizures, and taking testimony
.
They are an effective tool in combatting transnational crime like money laundering and human trafficking
, and prosecuting criminals who attempt to evade domestic law enforcement by operating abroad.

(Brian, Editoral Director of the Association of Certified Financial Crime Specialists, He created news articles, reports, resources and other content for ACFCS, a member organization for private and public sector professionals who work in various disciplines that detect, control and combat financial crime, including internal and external fraud, money laundering, domestic and foreign corruption, compliance issues and asset recovery. Organized training events and conferences with 500+ attendees. From the article, “MLATS ARE POWERFUL WEAPONS IN FINANCIAL CRIME COMBAT, EVEN
FOR PRIVATE SECTOR, February 14, 2012, http://www.acfcs.org/mlats-are-powerful-weapons-incounter-financial-crime-combat-even-for-private-sector/)
In the global effort against
financial crime
in all of its manifestations, there is a powerful tool that can provide substantial help to counter
-financial crime professionals
– in the public and private sectors, and they are called Mutual Legal Assistance
Treaties, or
MLATs
. Designed for government agencies to receive and provide assistance to their counterparts in other countries, these powerful bilateral weapons also have the potential to help private sector institutions
, companies and individuals that have been victimized by financial crime in one way or another. Their one handicap is that they don’t win prizes for efficiency and speed. Any financial criminal worth his salt does not target his victims or place his illicit assets all in one country. That’s the nature of big-time financial crime, especially with electronic communications and air travel having so shrunk the world over the past 30 years. In 1974, the
United States negotiated its first
M utual
L egal
A ssistance
T reaty with Switzerland
, which played a role in locating and seizing the massive sums that organized crime families of the 1970s were generating from crimes on Main Street and Wall Street.
The treaty also sought
to facilitate the identification
of the fronts and co-conspirators of Mafia dons and their lieutenants
. Since that time, the United States has signed more than 60 other MLATs with a wide array of countries large and small. Pronounced commonly as “
M-Lats
,” they are a vital weapon in the global assault on financial crime
.
They are useful for gathering evidence and intelligence
, taking the testimony of witnesses
, obtaining
certified documents
and achieving other things that would be difficult for
the officials of one nation to obtain without the cooperation of the other country
. Private sector interests may get MLAT help. MLATs are designed for use by the government, but in many cases, prosecutors can be persuaded to include inquiries that may assist private sector victims and targets of financial criminals, as an “intended use” of the information received through a mutual legal assistance request. In some cases where a prosecutor is not inclined to cooperate with private sector victims, such as receivers, the private sector representatives of victims may be able to seek a court order compelling the prosecutor to invoke an MLAT in search of specific information. There is even a provision in the US money laundering law that can give a receiver appointed by a federal judge the standing of a federal prosecutor for purposes of making mutual legal assistance requests. (Title 18, US Code Section 1956(b)(4)).MLATs have specific benefits: The treaty partners, meaning the signatory nations, have already agreed to assist each other in investigations. The scope of assistance to be provided is clearly defined by the treaty. The requested country bears the cost of the work entailed in the request, except for extraordinary expenses. It is designed to provide information that might not otherwise be available. As an example of how an
MLAT can assist
financial crime victims in locating and recovering property
, Article 16 of the MLAT between the U.S. and the United Kingdom provides:“The parties shall assist each other in
proceedings involving the identification
, tracing
, freezing
, seizure
or forfeiture of the proceeds and instrumentalities of crime and in relation to proceedings involving
the imposition of fines related to a criminal prosecution
. Restrictions on use of MLAT information. Most MLATs include restrictions on the use of information they produce in the bilateral assistance. The MLA T between the US and France, for example, notes: “This treaty is intended solely for mutual legal assistance between the
[Contracting] States. The provisions of the Treaty shall not affect the exercise of rights otherwise available to private persons under the laws of the State presented with a claim based on such rights.” The MLAT between the US and the United Kingdom has a similar restriction in Article 1: “This Treaty is intended solely for mutual legal assistance between the Parties. The provisions… shall not give rise to a right on the part of any private person to obtain, suppress or exclude any evidence, or to impede the execution of a request.” MLATs usually specify assistance provided. Most
MLATs
require the country that receives a request for assistance to take certain actions, such as: Taking testimony or statements of persons,
Providing documents, records and evidence,
Service of documents on persons or organizations in the requested country,
Locating or identifying persons
, Executing requests for search and seizure, and
Identifying, seizing and tracing proceeds of crime.
Marie, Senior Programme Coordinator at Transparency International, writer for the Anti-
Corruption Resource Center in the Policy and Research Department. Her qualifications include degrees

in Public Health, Social Communication, Political Science, Information and Communication, Article,
“Mutual Assistance Treaties and Money Laundering”, July 28 th , 2008, Anti-Corruption Resource Center)
Individual countries cannot fight against corruption alone as corruption and money laundering cases are often and increasingly transnational
. This is particularly true for many developing countries that lack the expertise, resources, capacity and legal framework to effectively tackle money laundering offences. Mutual legal assistance treaties (MLATs) could potentially address some of these challenges provided the legal, practical and political obstacles that generally hamper the effective provision of legal assistance can be overcome. A review of the various mechanisms that allow international cooperation in money laundering matters indicates that
MLATs are best suited to address these challenges as they create a binding obligation to cooperate
.
However, the existence of MLATs does not alone guarantee the successful and effective provision of mutual legal assistance (MLA). In practice, factors such as procedural delays, lack of training on effective means to request cooperation and difficulties relating to differences between legal systems may affect the effectiveness of formal legal assistance, revealing the need for alternative and more informal forms of assistance and cooperation. Part 1:
The Potential of Mutual Legal Assistance Mechanisms in Corruption and Money
Laundering Matters
The Potential of MLA in the fight against Money Laundering Mutual legal assistance is
a process by which states seek and provide assistance in gathering evidence for use in the investigation and prosecution of criminal cases
.
Forms of assistance covered by MLA typically include the power to summon witnesses, to compel the production of evidence and other relevant documents, to issue search warrants and to serve process.
Mutual legal assistance
(MLA) has intensified in recent years in response to emerging global threats such as terrorism, organised crime and corruption.
In times of economic globalisation, criminal networks expand their activities across borders, taking advantage of offshore centres to launder the proceeds of their crimes and seek safe haven in foreign jurisdictions
.
Corruption cases often –and increasingly- involve a transnational element as well; in the case of foreign bribery, for example, or when corrupt officials conceal evidence and embezzled funds abroad. In this context
, MLA is recognised as critical for effective
prosecution and deterrence of corrupt practices and a variety of instruments have been developed in recent years to facilitate international cooperation in this area
. Yet, borders remain a major obstacle for law enforcement authorities to gather evidence and bring successful criminal proceedings as they are bound by the principle of sovereignty and can’t conduct investigations on the territory of another State. In addition, countries must have both the judicial capacity and legal infrastructure in place to effectively address transnational bribery and money laundering issues, with laws and practices dealing with MLA, money laundering and the proceeds of crime and a Financial Intelligence Unit (FIU) or a similar body with sufficient expertise and capacity to identify and track funds and illegal transactions. Many developing countries do not have this domestic framework in place and lack basic human and financial resources, expertise, and legal infrastructure to effectively tackle money laundering. Very often, they are still struggling to complete the required infrastructure to fight money laundering and develop the capacity to conduct such complex and resource-intensive investigations. In the absence of an adequate domestic framework, international cooperation could
provide an option to track illegal funds that have been transferred and laundered in other countries.
For example,
MLA could be particularly useful in the case of money flowing to a developing country that has the political will but lacks the resources and capacity to effectively fight money laundering
. In such a case, the partner country that has stronger instruments, systems and capacity in place to deal with money laundering can assist the weaker one and contribute to build its capacity through the provision of MLA.
United States Government Accountability Office is an independent, nonpartisan agency that works for
Congress, Combating Terrorism: Interagency Framework and Agency Programs to Address the Overseas
Threat, pg. 138, May 2003
Department of Justice officials said that they prefer to use the more modern, more reliable, and more expeditious Mutual Legal Assistance
Treaty process than the more cumbersome letters rotatory process
. Mutual Legal Assistance Treaties strengthen law enforcement by permitting direct communication between appropriate executive branch law enforcement Officials in the U nited
S tates and foreign countries
rather than relying upon the letters rotatory process with its judge-to-judge communications transmitted through the diplomatic channel, Mutual Legal Assistance treaties provide for the exchange of valuable evidence, often in a form that is admissible at trial.
They enable the Justice Department to obtain foreign financial records, obtain statements or testimony of foreign witnesses, conduct search and seizure of foreign evidence, and
in some cases, freeze and recover the forfeiture of proceeds of U.S. crimes committed abroad
. The Department of State, in conjunction with the Department of Justice, is responsible for negotiating the treaties. Once a Mutual
Legal Assistance Treaty is in force, the Department of Justice is responsible for making specific requests to other countries for assistance under the treaty. AS of January 2003, the United States had bilateral Mutual Legal Assistance Treaties covering 47 foreign jurisdictions In addition,

many modern multilateral law enforcement conventions, including those dealing with terrorism and terrorist financing, contain broad mutual legal assistance articles.
(Kimberly, Senior Counsel, Director, International Assistance group, Department of Justice,
Canada, Article: “International cooperation in combating transnational crime”, Information exchange network for mutual assistance in criminal matters and extradition, 1998, http://www.oas.org/JURIDICO/MLA/en/can/en_can_prost.en.html)
With advances in technology, and the ease of global travel
, the world we live in has become, in many ways, as Canadian author Marshall McLuhan predicted "a global village".
This has had a dramatic impact on many aspects of life and society and law enforcement is no exception.
The technological explosion and the growth of transnational organized crime and the response of the international community to it, has created many new challenges, not the least of which is the impact on
the jobs of law enforcement authorities
. In a 1989 case,
United States of America v. Cotroni, the Supreme Court of Canada, made the following statement:
The
investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order
is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries
. That has long been the case, but it is increasingly evident today.2
The challenge for law enforcement authorities in every nation is that sovereignty
, a fundamental principle which grounds the relations of states, is
also a major tool in the armoury of the criminal element
in our societies.
Criminals depend heavily upon the barriers of sovereignty to shield themselves and evidence of their crimes from detection
.
Organizations which orchestrate transnational crime and
which then disperse and conceal the proceeds of their illicit activities the world over, have no regard for national borders
.
In fact, by structuring their organisations to span borders, they are better able to protect their interests and organisations. They are positioned to take advantage of the differences between legal systems, the clash of bureaucracies, the protection of sovereignty, and, at many times, the complete incapacity of nations to work together to overcome their differences. International cooperation in criminal matters, means such as mutual assistance
and extradition are instruments which can be used to overcome the barriers of sovereignty and allow the international community to "fight back".
Both extradition and mutual legal assistance are 'about' countries building bridges to overcome the differences in their legal systems and assisting each other in law enforcement matters.
The result is that the rare case where assistance from another country was necessary to gather evidence or locate and return an accused is no longer rare.
More and more successful prosecution
, particularly of drug economic Crime and money laundering cases, is dependent upon the assistance and cooperation of other states
. International cooperation in criminal matters has on a practical level, come of age. The purpose of this paper is to provide a brief overview of the world of international cooperation as it relates to prosecutors and other law enforcement authorities. The intent is to give a brief "snapshot" of where we have been, where we are and the future challenges that we face. International cooperation in criminal matters encompasses many measures including extradition, mutual assistance, transfer of sentenced prisoners, transfer of proceedings, and cooperation in the restraint and forfeiture of proceeds of crime. This paper will focus on three of the most common aspects of international cooperation, those which most directly impact on the work of prosecutors - extradition, mutual assistance and cooperation in the restraint and forfeiture of proceeds of crime.

(Angel, Security General for the Organization for Economic Cooperation and Development,
Mexico’s Minister of Foreign Affairs from December 1994 to January 1998, and from January 1998 to
December 2000, he was Mexico’s Minister of Finance and Public Credit. Now, he is the OECD Secretary-
General, since June 2006. Article, “Typology on Mutual Legal Assistance in Foreign Bribery Cases”, the
Organization of Economic Cooperation and Development or OECD, http://www.oecd.org/daf/antibribery/TypologyMLA2012.pdf)
The fight against bribery
in international business transactions is one of the highest priorities of the Organisation for
Economic Co-operation and Development (OECD).
The Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions (Convention) is the OECD ‟ s chief tool to assist this fight. One of the principle mandates of the OECD ‟ s
Working Group on Bribery in International Business Transactions („the Working Group ‟ ) is to monitor the effective implementation of the
Convention.This study focuses on the challenges that arise in providing and obtaining mutual legal assistance (MLA) in foreign bribery cases and ways of addressing those challenges.
Bribery of foreign public officials in international business transactions is a cross-border crime.
Therefore, effective MLA between countries is crucial for the successful investigation, prosecution and sanction of this crime.
Parties to the Organisation for Economic Co-operation and
Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Convention) have identified difficulties in obtaining MLA  both between the Parties to the Convention and in relation to non Parties  as a major obstacle to the effective implementation of the Convention. Beginning in 1999, the OECD Anti-Bribery Convention called upon all Parties to criminalise the bribery of foreign public officials in international business transactions (foreign bribery). Today, 39 state Parties have committed to join the fight against this crime.
Recognising that country-to country assistance is essential to combat foreign bribery,
Article 9 of the Convention provides that Parties should use all tools available to provide “prompt and effective legal assistance” to other Parties for the purpose of assisting investigations of the foreign bribery offence.1 In addition, Parties are required to inform other Parties of any defects in their requests for MLA and update them on the status of their requests. In 2005, the United Nations Convention Against Corruption (UNCAC) entered into force. This international instrument requires state parties to establish criminal offences to cover a wide range of acts of corruption, including bribery of foreign public officials.2
Acknowledging the importance of international cooperation in corruption investigations generally,
the UNCAC requires states parties to render to one another the 1 Article 9.1 of the OECD Anti-Bribery
Convention, 21 November 1997, at www.oecd.org/daf/briberyininternationalbusiness/oecdantibriberyconvention.htm. 2 Article 16 of UNCAC
Article 16, 31 October 2003, at www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf. INTRODUCTION 8
TYPOLOGY ON MUTUAL LEGAL ASSISTANCE IN FOREIGN BRIBERY CASES © OECD 2012 “widest measure” of MLA and identifies several specific forms of MLA that countries must afford one another under this instrument.3 As of 20 April 2012, 160 states have become parties to the UNCAC. The Council of Europe ‟ s Criminal Convention on Corruption, which entered into force on 1 June 2002, requires state
Parties to adopt similar legislative and other measures and focuse s on the importance of
providing
MLA
in its Article 26. In 2005, the
OECD Working Group on Bribery in International Business Transactions (Working Group) conducted a stock-taking review of its Phase 2 country evaluations that had been completed to date.4 This resulted in the 2006 Phase 2 Mid-Term Study, in which the Working Group concluded that perhaps the most significant obstacle faced by Parties to the Convention in investigating and prosecuting foreign bribery cases is the difficulty in obtaining MLA from non-Parties regarding the bribery of foreign public officials that takes place in those countries.5 During a meeting in Rome in November 2007 to celebrate the tenth anniversary of the Convention, government officials from Working Group member countries repeatedly discussed the importance of MLA and the need to improve it. Participants in a special meeting for law enforcement officials discussed difficulties related to the length of the MLA process and the need to accelerate MLA with countries not Party to the Convention.
Another Rome panel attended by experts on international cooperation was devoted to the topic of enhancing international coordination and cooperation in foreign bribery matters, and in particular on speeding up the execution of MLA requests.6 As part of the Rome meeting, the
Working Group issued a “Statement on a Shared Commitment to Fight Against Foreign Bribery”, where all Parties to the Convention committed to “[u]se all means and take all necessary actions, to effectively investigate and prosecute those who bribe foreign public officials, notably by facilitating international cooperation and MLA”. 3 Article 46 ibid. 4 The Working Group evaluates countries ‟ implementation and enforcement of the AntiBribery Convention through a peer-review monitoring system that results in the publication of reports which are made publically available on the OECD ‟ s website. See “Bribery in International Business”, at www.oecd.org/daf/nocorruption. Phase 2 evaluations were conducted from 2001 through 2009. 5 See “Mid-Term Study of Phase 2 Reports”, 407, at www.oecd.org/daf/briberyininternationalbusiness/antibriberyconvention/36872226.pdf. 6 See “Summary of the High Level Conference and the Experts ‟ Meeting on „The Tenth Anniversary of the
OECD Anti-Bribery Convention ‟ ”, Rome, 21 November 2007, at INTRODUCTION TYPOLOGY ON MUTUAL LEGAL ASSISTANCE IN
FOREIGN BRIBERY CASES © OECD 2012 9 Following up on the discussions on MLA which took place in Rome in November 2007, a group of prosecutors from Parties to the Convention held several informal annual meetings, starting in June 2008. Problems related to MLA were further identified and discussed, which, in part, led to this typology. Furthermore, the Working Group undertook in 2008 and 2009 a review of the
OECD anti-bribery instruments. During that review, the Working Group concluded that improving MLA was a high-priority issue and that it should make the issue a topic for an independent study. Once again recognising how crucial MLA is to investigating foreign bribery cases, the
OECD ‟ s
2009
Recommendation for Further Combating Bribery
of Foreign Public Officials in International
Business Transactions recommends that Member countries “ make full use of
existing agreements and arrangements for mutual

international legal assistance
and where necessary, enter into new agreements or arrangements for this purpose” and “consider ways for facilitating MLA between Member countries and with non-Member countries in cases of [foreign] bribery”.7 Although the Working Group has repeatedly recognised the importance of MLA in combating foreign bribery, its own ability to evaluate how effectively Parties process MLA requests has been hampered by a lack of objective and verifiable information, including statistical information. In the course of the Phase 3 reviews, the Working Group has identified as a horizontal issue the absence of a mechanism to obtain such information from Parties to the
Convention on their experiences in obtaining MLA from an evaluated country (including information on the number of MLA requests sent and received in foreign bribery cases, the identity of the countries involved, the type of assistance requested and response times)..8 Meanwhile, criminals have capitalised on technological advances, which have in turn made efficient MLA even more critical. In the area of transnational bribery, as in other economic crime cases, technology has made it possible for criminals to communicate quickly, easily create shell corporations and other intermediary entities, layer financial transactions in multiple jurisdictions and conceal assets in hidden accounts which are frequently held in yet other jurisdictions. Therefore, the need for timely MLA has increased.
Many practitioners share the view that more must be done to increase the effectiveness of MLA in foreign bribery cases and in criminal matters 7
Recommendation of the OECD Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions XIII,
26 November 2009, at www.oecd.org/daf/briberyininternationalbusiness/OECDAntiBriberyRecommendation2009.htm. 8 See “Mid-Term Study of Phase 2 Reports”, 407, supra. INTRODUCTION 10 TYPOLOGY ON MUTUAL LEGAL ASSISTANCE IN FOREIGN BRIBERY CASES ©
OECD 2012 generally. The prosecutors who took part in the 2007 Rome meeting acknowledged that MLA delays are a major concern. Moreover, a chorus of experts who took part in the typology meetings in December 2011 and March 2012 stressed the need for more timely and effective
MLA. The expert participants in the typology meetings were unanimous in their opinion that serious MLA problems are present when seeking
MLA from some Convention Parties and non-Parties.

(The International Chamber of Commerce is the largest, most representative business organization in the world. Its hundreds of thousands of member companies in over 180 countries have interests spanning every sector of private enterprise, Article “Using Mutual Legal Assistance Treaties
(MLATs) To Improve Cross-Border Lawful Intercept Procedures”, September 12, 2012, http://www.iccindiaonline.org/policy-statement/3.pdf)
Cross border Lawful Intercept presents two main challenges
for communications service providers (CSPs), especially those that operate in multiple countries: differences in legal and technical Lawful Intercept requirements among countries
, which present significant compliance issues and costs, including because of the need to implement different LI technical solutions in different places and because the requirements themselves are often not particularly transparent; and inconsistent legal requirements that can arise where cross-border communications are subject to the jurisdiction of LEAs in multiple countries
, particularly where LEAs make extra-territorial requests to CSPs (e.g. where data regarding a communication sought by an LEA in Country A are stored in Country B). Mutual Legal Assistance Treaty (MLAT) Improvement
Document No. 373 / 512 – page 3 ICC’s June 2010 LI policy statement began to consider these issues, making two recommendations focusing on the first challenge of differing legal requirements: Recommendation 4 – “LI laws, regulations and standards should be consistent across borders, and utilize international technical standards”; and Recommendation 5 – “Centralized, multi-country LI solutions should be permitted”.
MLAT improvement,
the focus of the present statement, can help address these recommendations by increasing the interoperability of international Legal Intercept requirements
. Moreover,
MLATs can even better address the second challenge of inconsistent legal requirements, by substituting cooperation between Law Enforcement Agencies in different countries for extraterritorial Legal Intercept mandates
.
ICC’s February 2012 LI policy statement focuses on this second challenge, recommending that LEAs and governments: “Improve existing
MLATs
so that (1) they cover evolving IP-based communications services
, (2) they deliver requested data in time frames satisfactory for LEAs, (3) [they] increase legal certainty for compliance with respective national laws
; and
(4) all multinational service providers know how to interact with the MLAT process
(e.g. v ia efficient, transparent processes and availability of information on that process
).” The policy statement also suggests that “
MLAT improvements would advance cross-border law enforcement cooperation, reduce conflict of law difficulties, and reduce the risk of countries establishing unnecessary data-related infrastructure localization requirements.”

(Jesse, former Chairman of the Senate Committee on Foreign Relations, `The United
States Treaties on Mutual Assistance in Criminal Matters: A Comparative Analysis,'' July 30, 1996,
Senate Executive Report, http://www.gpo.gov/fdsys/pkg/CRPT-104erpt22/html/CRPT-
104erpt22.htm)
Mutual Legal Assistance Treaties (
MLATs) provide for the sharing of information and evidence related to criminal investigations and prosecutions, including drug trafficking and narcotics-related money laundering.
Both parties are obligated to assist in the investigation, prosecution and suppression of offenses
in all forms of proceedings ( criminal, civil or administrative
). Absent a treaty or executive agreement, the customary method of formally requesting assistance has been through letters rogatory. II. Background On November 13, 1994, the United States signed a treaty with the
Philippines on mutual assistance in criminal matters and the President transmitted the Treaty to the Senate for advice and consent to ratification on September 5, 1995. In recent years, the U nited
S tates has signed
similar
MLATs with many other countries as part of an effort to modernize the legal tools available to law enforcement authorities in need of foreign evidence for use in criminal cases.
States historically have been reluctant to become involved in the enforcement of foreign penal law.1 This reluctance extended to assisting foreign investigations and prosecutions through compelling testimony or the production of documents. Even now, the shared interest in facilitating the prosecution of transnational crime is viewed as being outweighed at times by unwillingness to provide information to those with different standards of criminality and professional conduct. Despite these hindrances, the need to obtain the cooperation of foreign authorities is frequently critical to effective criminal prosecution. Documents and other evidence of crime often are located abroad.
It is necessary to be able to obtain materials and statements in a form that comports with U.S. legal standards, even though these standards may not comport with local practice.
Also, assisting prosecutors for trial is only part of how foreign authorities may assist the enforcement process.
Detecting and investigating transnational crime require access to foreign financial records and similar materials, while identifying the fruits of crime abroad and having them forfeited may deter future criminal activity.
It is necessary to have the timely and discrete assistance of local authorities. Still, it was not until the 1960s that judicial assistance by means of letters rogatory--requests issuing from one court to another to assist in the administration of justice 2 were approved. Even then, the ability of foreign authorities to use letters rogatory to obtain U.S. assistance was not established firmly in case law until 1975.3 By this time, the United
States had negotiated and signed a mutual legal assistance treaty with Switzerland, the first U.S. treaty of its kind. This treaty was ratified by both countries in 1976 and entered into force in January 1977. Since then, the United States has negotiated more than 20 additional bilateral
MLATs, 14 of which are in force.4 Absent a treaty or executive agreement, the customary method of formally requesting assistance has been through letters rogatory. The Deputy Assistant Attorney General of the Criminal Division has summarized the advantages of MLATs over letters rogatory to the House Foreign Affairs Committee as follows:
An MLAT
or executive agreement replaces the use of letters rogatory. * * *
However, treaties and executive agreements provide, from our perspective, a much more effective means of obtaining evidence.
First, an MLAT obligates each country to provide evidence and other forms of assistance needed in criminal cases. Letters rogatory, on the other hand, are executed solely as a matter of comity. Second, an MLAT
, either by itself or in conjunction with domestic implementing legislation, can provide a means of overcoming bank and business secrecy laws that have in the past so often frustrated the effective investigation of large-scale narcotics trafficking operations.
Third, in an MLAT we have the opportunity to include procedures that will permit us to obtain evidence in a form that will be admissible in our courts.
Fourth, our
MLATs are structured to streamline and make more effective the process of obtaining evidence
.5 Letters rogatory and MLATs are not the only means that have been used to obtain assistance abroad.6 The United States at times has concluded executive agreements as a formal means of obtaining limited assistance to investigate specified types of crimes (e.g., drug trafficking) or a particular criminal scheme (e.g., the Lockheed investigations).7 A separate, formal means of obtaining evidence has been through the subpoena power. Subpoenas potentially may be served on a citizen or permanent resident of the United States abroad or on a domestic U.S. branch of a business whose branches abroad possess the desired information.8 Additionally, the Office of International Affairs of the Criminal Division of the Department of Justice notes several informal means of obtaining assistance that have been used by law enforcement authorities in particular circumstances. These have included informal police-to-police requests (often accomplished through law enforcement personnel at our embassies abroad), requests through Interpol, requests for readily available documents through diplomatic channels, and taking depositions of voluntary witnesses. Informal means also have included ``[p]ersuading the authorities in the other country to open `joint' investigations whereby the needed evidence is obtained by their authorities and then shared with us.'' The Justice Department also has made ``treaty type requests that, even though no treaty is in force, the authorities in the requested country have indicated they will accept and execute. In some countries (e.g., Japan and Germany) the acceptance of such requests is governed by domestic law; in others, by custom or precedent.''

(Martin, “Setting a Dangerous Precedent: It's Foreign,” Oct 14, http://www.infosecuritymagazine.com/blogs/setting-a-dangerous-precedent-its/, CMR)
This last issue is perhaps the most concerning of the three, at least in the short term.
If American law enforcement officers can argue successfully that the mere presence on a foreign server makes data a viable target for hacking, it opens a number of doors for other governments to make the exact same assertion for their activities against American companies
.
Hacking of
Google, Facebook and any other repository of personal data becomes an easily justified action
, as there are surely criminals using these systems and they're a valid target for hacking.
If this excuse works for the U nited
S tates, there's no reason to believe it won't work just as well for other countries
. It's a tumultuous time as we figure out the legal structures and rules that need to be applied to the Internet, the Cloud and the privacy of individuals. As is the nature of law enforcement and legislators, they'll be working to grab as much power to gather data as possible. It will only be over time as we push back and try to regain individual rights that codify what is legal and allowable for governments to do. But creating precedents that state it's okay for my government to access data that's housed on foreign soil becomes dangerous when other governments view our soil as foreign
. One maxim of the legal system is that you should never give yourself a power you don't want your worst enemy to exploit against you
.

(Terrorism, Transnational Crime, and Corruption Center, it is the first center in the United
States devoted to understanding the links among terrorism, transnational crime and corruption, and to teach, research, train and help formulate policy on these critical issues. TraCCC is a research center within the School of Policy, Government and International Affairs at George Mason University, 2011, http://traccc.gmu.edu/topics/corruption/)
A new awareness of the need to curb corruption has emerged
among citizens and leaders in all parts of the world.
Whereas overt discussions of corruption were taboo only a decade ago, now corruption is the increasing focus of diplomatic discourse, news and research.
As the linkage between corruption and development has become clear, governments, business, civil society organizations, non-governmental organizations, international organizations, and donor agencies have sought to address corruption aggressively. Democratic politics, global markets, and a variety of international and regional factors (for example, EU accession) have provided openings for reformers to combat corruption and lay the foundation for more equitable, just, and prosperous communities. This work is of vital importance to the economic, environmental, political and social welfare of communities where corruption is pervasive. New research shows that there is a strong
causal effect running from control of corruption to higher income levels and to such development outcomes as lower infant mortality rates and higher rates of illiteracy.
Corruption
retards economic growth through a number of channels: it leads to the inefficient allocation of resources, increases the cost of business, decreases investor confidence, reduces competition, and raises the cost and decreases the quality of public projects and services. Corruption also jeopardizes efforts to protect the environment as pay-offs derail the formulation or implementation of effective policies
. The political consequences of widespread corruption, while less tangible, are no less real.
Corruption undermines the legitimacy of elected officials and democratic values, reduces representation in policymaking, erodes rule of law, and impairs performance of public institutions.
Corruption also facilitates trafficking, money laundering and organized crime
. For these reasons, corruption increases social polarization and
, in extreme cases, can trigger social and political upheaval
.

(February, Preventing organized crime from spoiling peace, Commission on Narcotic Drugs, http://www.unodc.org/unodc/en/frontpage/preventing-organized-crime-from-spoiling-peace.html)
Look at almost any conflict zone in the world, and you'll find spoilers with links to criminal groups.
Conflict creates cover for illicit enrichment - whether it be drugs, natural resources, or the trafficking of weapons and people. It also creates profitable new markets for smuggled goods. In the absence of the rule of law and licit competition, criminal groups fill a lucrative vacuum. Since they profit from
instability they have few incentives for peace. Organized crime is therefore a major threat to keeping and building peace, and - because of its transnational nature - has an impact on regional security. As a result, conflicts which may seem tractable drag on for years. "Peacekeepers, peacemakers, and peacebuilders are starting to wake up to the impact of crime on conflict, and UNODC has a unique skill set that can address this urgent problem", says UNODC Spokesman Walter Kemp, "The establishment of the UN
Peacebuilding Commission, an ever-expanding number of peacekeeping operations that include a rule of law component, an increased emphasis on conflict prevention, and greater attention to the political economy of conflict all demonstrate the need for expertise in dealing with organized crime in fragile situations", says Mark Shaw, Chief of UNODC's Integrated Programming Unit. Yet expertise is relatively limited. As the Executive Director of UNODC, Antonio Maria Costa has pointed out, "we need more specialists to fight organized crime. Under the UN flag, there are more than 130,000 soldiers and 10,000 police. Yet, the UN has less than a dozen experts on organized crime. How can we answer the calls for help when we have few people to send?" UNODC is taking steps to rectify this problem, both within the
UN system and among Member States. "UNODC is well-positioned to play a key role in this area since we are the guardian of the UN Convention against Transnational Organized Crime and the developer of a number of key tools to strengthen criminal justice in post-conflict settings", says UNODC Director of
Operations Francis Maertens. One such tool was launched in New York on 11 February - Model Codes for Post-Conflict Criminal Justice which was produced in partnership with the Office of the High
Commissioner for Human Rights, the US Institute for Peace, and the Irish Centre for Human Rights.
"Blue helmets get most of the attention when people think about building peace and security", said Mr.
Costa at the launch, "but long-term security depends first and foremost on the creation or restoration
of the rule of law, and that is what this Model Code is for".
(CEnter for Strategic and International Studies, "Revolution 6 - Conflict," Global Strategy
Institute," gsi.csis.org/index.php?Itemid=59&id=30&option=com_content&task=view)
The shift from interstate to intrastate war and the increasing capacity of non-state actors to commit acts of megaviolence reflect how patterns of conflict have changed since the end of the Cold War
. Today warfare is increasingly described as
“asymmetric.” T raditional military powers, like the United States, are confronted by
increasingly atypical adversaries— non-state ideologues, transnational criminal syndicates
, and rogue states— that employ unconventional tactics in wars ambiguous in both place and time. Today, conflict is more likely to occur between warring factions on residential streets than between armies on battlefields.
As before, many belligerents still fight for power and/or wealth, but an increasing number are fighting purely for ideology.
Acts of terrorism have become the major vehicle for their malcontent, especially for well-organized and well-funded Islamic groups like al-Qaed a. The attacks of September 11, 2001 and similar incidences in recent decades have shown that even small groups of terrorists can

carry out sophisticated attacks that result in an incredible loss of life.
The proliferation of nuclear and biological technologies only ups the ante for future incidences. [
19] Terrorism and Transnational Crime Over the past few decades the size and scope of terrorists’ abilities have become truly alarming
. Terrorist organizations have evolved from scrappy bands of dissidents into well-organized groups with vast human and capital resources.
This situation is forcing governments around the world to develop strategies to both neutralize these groups where they operate and maintain security at home. The United States has met some success in combating terrorist organizations, killing high-level officials and isolating certain sub-groups, but the War on Terror has had the unintended consequence of forming “micro-actors,” individuals driven by foreign military operations to militant extremism. These individuals, or groups of individuals, operate in poorly organized cells and as such use internet technologies to spread their message and share plans of attack. Perhaps paradoxically, this disorganization and decentralization makes these groups a greater threat to the military as it is harder to detect and track them. [1]
Terrorism has also had the effect of heightening tensions between sovereign nations
. After the Mumbai terrorist attacks of 2008,
India and Pakistan neared war after India accused Pakistan of harboring terrorists and Pakistan refused to turn over individuals for prosecution.
To finance their illegal activity, terrorist organizations are becoming involved in transnational crime, especially drug trafficking
. Dr. Rachel Ehrenfeld, Director of the American Center for Democracy, has stated, “
The huge revenues from the heroin trade fill the coffers of the terrorists and thwart any attempt to stabilize the region.”
[2] Over the last two decades, we have witnessed a surge in transnational crime, in large part because of the dissolution of Cold War alliances that helped keep criminal syndicates in check.
Organized crime activity is not limited to the smuggling of illicit drugs, but includes the trafficking of arms, drugs, and human beings. Weapons of Mass
Destruction According to President Obama, “In a strange turn of history, the threat of global nuclear war has gone down, but the risk of a nuclear attack has gone up.” [3] International mechanisms established in recent decades have by and large kept the nuclear ambitions of superpowers at bay.
However, the fall of the Soviet Union and the increasing prevalence and power of criminal networks have made it more likely that a single actor could get his or or her hands on a Weapon of Mass Destruction (WMD). The term WMD is used to describe any weapons technology (radiological, chemical, biological, or nuclear)
that is capable of killing a large number of people. [4] By and large it is believed that WMD pose the greatest threat in the possession of belligerent states like Iraq, North
Korea, and Iran. However, experts are warning that a more urgent threat would come from WMD in the hands of non-state actors. Nuclear material and technical knowledge are frequently exchanged on the black market,
especially in post-Soviet countries, where security personnel charged with guarding nuclear facilities are easily bribed into selling nuclear plans and materials
. [5] With the help of the United States, Russia and its neighbors have made strides in securing these sites and improving oversight of the nuclear industry, but there is no telling how much material has been traded over the years. [6]
The WMD threat does not only come from groups operating in the developing world, however, as recent biochemical attacks attest. The prime suspect in the anthrax attacks of 2001 was a government scientist, and the sarin gas attack on the Tokyo subway was committed by a religious organization that enjoyed official government recognition. The ease with which these materials have become available, especially through online resources, is forcing governments to restrict their use
. International governing bodies will need to find an acceptable paradigm that allows for the benign applications of these technologies, as in power generation, while deterring the nefarious ones.

( United Nations Of Drug and Crime, “Transnational Organized Crime: Lets Put Them Out
Of Business” UNODC April 8th 2015 http://www.unodc.org/toc/ 7-10-15)
t
o
c
around the world
This Strategy organizes the United States to combat TOC networks that pose a strategic threat to
Americans and to U.S. interests in key regions.

(John R, Analyst in Foreign Affairs, “Transnational Organized Crime: Principal Threats and
U.S. Responses,” March 20, https://www.fas.org/sgp/crs/natsec/RL33335.pdf, CMR)
Threats to the United States Mainly because it is clandestine, transnational crime is hard to measure. The U.S. government’s International
Crime Threat Assessment, 14 completed in 2000, gauges various global criminal activities and was drafted by an interagency working group led by the National Security Council (N SC). Based on this assessment, which is currently under review by the NSC, 15 and other more recent reports, the largest international crime threats
, in terms of their potential impact, include
(1) smuggling of nuclear materials and tech nology; (2) drug trafficking
; (3) trafficking in persons; (4) intellectual property crimes
; and (5) money laundering
. !
Many experts fear organized criminals will help terrorists or nation states acquire weapons of mass destruction (
WMD
).
Among WMD threats
, 16 many experts believe the most menacing is that terrorists could develop and use a nuclear bomb
. 17
In regions such as the former Soviet Union, the security of nuclear material has been criticized as lax
. The State Department, to allay concerns that former Soviet scientists could be bribed by criminal networks, runs nonweapons-related projects in Russi a and Ukraine to keep them employed.
The risk of nuclear smuggling was highlighted in October 2003 when officials in international intelligence and law enforcement discovered that Pakistani nuclear scientist
A.Q.
Khan was selling nuclear technology to
North Korea, Libya, and other unknown parties
. 18 In one scenario, a nuclear attack on a U.S. city could kill more than half a million people and cause
more than $
1 trillion in damage
.19! Every year illegal drugs kill about 17,000
Americans. 20 Illicit drugs are estimated to impose about $160 billion in social and economic costs and $67 billion in direct costs to the United
States annually. 21 The illicit drug trade is believed to be valued at between $500 and $900 billion worldwide. Analysts identify cocaine and heroin trafficking as the most profitable criminal activity for transnational groups. !
Trafficking in persons for sexual exploitation or forced labor is one of organized crime’s largest re venue sources
, generating $9.5 billion annually, according to the
FBI.
An estimated
600,000 to
800,000 people are trafficked across inte rnational borders annually
. When combined with domestic trafficking, the total is believed to be between two and four million. 22 About 14,500 to 17,500 people are thought to be trafficked into the United States annually, 23 mainly from Southeast Asia and the former Soviet Union. In principle, the term “human smuggling” is distinct from “trafficking in persons.” In human smuggling, migrants pay to cross international borders. Experts fear human smugglers may help terrorists enter the U nited
S tates and other countries
. 24 !
IP violations
are thought to distort international trade and cause extensive revenue losses to legitimate industries
. According to Interpol, trade in counterfeit goods has grown eight times faster than legitimate trade since the early 1990s. 25 U.S. businesses estimate that counterfeiting costs them between $200 a nd $250 billion per year in lost sales. 26 In China, industry estimates place piracy levels in many sectors at about 90 percent. 27 !
Many criminal organizations hide the traces of their illegal activities by directly and indirectly investing their profits in legitimate financial institutions
. 28 In bulk cash smuggling, criminals place their profits in jurisdictions with lax financial regulations and law enforcement. By highly cons ervative estimates, money laundering is valued at two to five percent of world GDP. 29
(Dana E Brede is a professor at Regis University in Colorado She is involved with PhD programs, in addition to teaching courses on homeland security and counter-terrorism at Regis. She graduated from Norwich University “Transnational Crime and the Limitations of International Law” Regis
Edu 8-17-14 http://criminology.regis.edu/criminology-programs/resources/blog/transnational-crimeand-the-limitations-of-international-law 7-10-15)
We live in a world overwhelmed with devastating news events that span the entire globe
For example, the execution of American journalist, James Foley at the hands of ISIS/ISIL, and the rioting in Ferguson, Missouri
These events have provided a widespread sense that the world is facing challenges and threats of unprecedented scope, scale and complexity. The rising hostility and conflicts in areas from all over the international community have redefined America’s classification and approach to national and

international security
Since the topic of transnational crime and the limitations of international law, non-governmental organizations (NGOs) and intergovernmental organizations (IGOs) is a rather ambitious topic, I will break this into two parts.
From transnational organized crime to crimes against humanity, the international community is inundated with the need for mitigation and accountability
The complexities that exist in the international system have called for modifications and reformation of current international policies to better manage and mitigate the challenges that have impacted nations (states) all over the world. Moreover, the vast complexities and threats that currently exist in the international system have significantly altered international economic, diplomatic, and political agendas that have directly affected multilateral interests and capabilities pertaining to peacekeeping and law enforcement initiatives. At present and in the future, “keeping the peace” in such a system will mean something entirely different than it did prior to the Cold War. Such breaches of conventional international law like drug trafficking, organized crime and terrorism are highlighting the need for major changes to current policy in international organizations. According to Gérard Araud, President of the United Nations
Security Council (February 2010): [ These] transnational threats create roots for the development of regional and global tensions. Drug trafficking and related transnational organized crime encourage money laundering and makes possible the financing of non-governmental armed groups. They undermine the authority of states, spread corruption and weaken economic development. Therefore, they pave the way for radicalization processes that can lead to violent extremism and terrorism.
Insurgents and criminals develop close ties to profit from this instability and in some cases create the conditions for such instability. As a matter of fact, transnational threats are a destabilizing factor in every crisis where the United Nations operates. They take advantage of the weakness of states in conflict situations and make the return to peace and economic development a more protracted and more difficult process for those states1.
In 2009, a research analysis from the United Nations Office on Drugs and Crime (UNODC) reported that transnational crime generates approximately $870 billion each year—an amount equal to 1.5% of the global GDP3. Rather staggering statistics, don’t you think?
transnational crimes include: Drug trafficking Human trafficking
Smuggling of migrants Illicit trading of firearms Trafficking of natural resources Cybercrime The sale of fraudulent medication4
As cited in the Strategy to Combat Transnational Organized Crime (2014): “Transnational organized crime (TOC) poses a significant and growing threat to national and international security, with dire implications for public safety, public health, democratic institutions, and economic stability across the world. Not only are criminal networks expanding, but they also are diversifying their activities, resulting in the convergence of threats that were once distinct and today have explosive and destabilizing effects”5. National Security Council on TOC The National Security Council (NSC) is the President’s principal forum for considering national security and foreign policy matters with his senior national security advisors and cabinet officials.
Moreover, the National Security Council is continuously revising strategies to combat TOC as its evolution presents sophisticated and multi-faceted threats that cannot be addressed through law enforcement action alone. TOC networks that present a high national security threat can merit the use of complementary law enforcement and non-law enforcement assets, and may be vulnerable to whole-of-government responses6. The International Criminal Court Unfortunately, the current system of international criminal law conventions includes gray area and loopholes that have historically failed to bring the critical organizers of global crime to justice. That being said, chief among the governing bodies in place to help suppress global crime and injustice is the International Criminal Court (ICC). Since its inception in July of 2002, the ICC has aimed to prosecute the international community’s worst crimes. The ICC is the first permanent, treaty-based international criminal court of its kind that can be used as a platform to hold criminals of the most serious crimes in the international community accountable for their actions7. The Preamble of the Treaty notes that the purpose of the Court is to end impunity for the perpetrators of atrocities that deeply shock the conscience of humanity8. Commentators debate whether the ICC’s statute and regulations are too restrictive. United Nations Security Council One can hardly mention the ICC without mentioning the UN Security Council.
Pertaining to the global threat of terrorism and transnational crime, the Security Council considers it an imperative task to find terrorists and prevent their attacks by exhausting all of the legal authorities and instruments available. In order to lessen the severity of international threats
state leaders must find the appropriate balance by adopting policies which are effective but also respect the democratic traditions which have laid the foundation for America's strength
States often look to the U.N. Security Council as the mediator, the supervisor and the governing authority over the legitimacy of the use of force and major peace keeping initiatives. Their authority and practice is based on articles and statutes within the UN Charter. Consequently, the UN Charter has a loose and widely open-to-interpretation policy that makes the enforcement of international law difficult. This, in my opinion, is quite possibly the greatest shortcoming of international

organizations and legal doctrine. Case Study: Augusto Pinochet—if you are unaware of who he is, I recommend you type his name into your Google taskbar. He is one of the prime examples of how international collaborative efforts were able to lead to the detention of a former Chilean dictator who was charged in Spain and arrested in the UK for crimes committed in Chile. The
International Court of Justice [The Global Policy Forum]: The International Court of Justice (ICJ) is the UN system’s highest judicial body. The ICJ settles legal disputes between states who must agree to abide by the Court’s jurisdiction before their case is even heard. The ICJ also gives advisory opinions on legal questions submitted to it by UN bodies and agencies. Here, particular emphasis is given to the relationship between the ICJ and the Security Council. Many have suggested that the ICJ should have the power of judicial review over the Security Council’s actions to ensure that they are consistent with the UN
Charter and other instruments of international law9. How can the ICJ mitigate threats in the international system when their jurisdiction is restricted?

Avery
, the David M. Knott Professor of Global Politics and IR and Director of the Center for the Study of Contemporary China @ the University of Pennsylvania, “China’s Real and
Present Danger,” September/October, Foreign Affairs, http://www.foreignaffairs.com/articles/139651/avery-goldstein/chinas-real-and-presentdanger?cid=soc-twitter-in-essays-chinas_clear_and_present_danger-100713
Much of the debate about China’s rise in recent years has focused on the potential dangers China could pose as an eventual peer competitor to the United States bent on challenging the existing international order. But another issue is far more pressing. For at least the next decade, while China remains relatively weak compared to the United States, there is a real danger that Beijing and Washington will find themselves in a crisis that could quickly escalate to military conflict .
Unlike a long-term great-power strategic rivalry that might or might not develop down the road, the danger of a crisis involving the two nuclear-armed countries is a tangible, near-term concern
-- and the events
of the past few years suggest the risk might be increasing.
¶
Since the
end of the
Cold War, Beijing and
Washington have managed to avoid
perilous showdowns
on several occasions: in 1995–96, when the United States responded to
Chinese missile tests intended to warn Taiwanese voters about the danger of pushing for independence; in 1999, when U.S. warplanes accidentally bombed the
Chinese embassy in Belgrade during the NATO air assault on Serbia; and in 2001, when a U.S. spy plane collided with a Chinese fighter jet, leading to the death of the Chinese pilot and Beijing’s detention of the U.S. plane and crew.
But the lack of serious escalation during those episodes should not breed complacency.
None of them met the definition of a genuine crisis: a confrontation that threatens vital interests on both sides and thus sharply increases the risk of war. If
Beijing and Washington
were to find themselves in that sort of showdown in the near future
, they would both have strong incentives to resort to force.
Moreover, the temptations and pressures to escalate would likely be highest in the early stages of the face-off, making it hard er for diplomacy to prevent war.
¶ THIN RED LINES ¶ It might seem that the prospects for a crisis of this sort in U.S.-Chinese relations have diminished in recent years as tensions over Taiwan have cooled, defusing the powder keg that has driven much Chinese and U.S. military planning in East Asia since the mid-1990s. But other potential flash points have emerged. As China and its neighbors squabble over islands and maritime rights in the East China and South China seas, the United States has reiterated its treaty commitments to defend two of the countries that are contesting China’s claims (Japan and the Philippines) and has nurtured increasingly close ties with a third (Vietnam). Moreover, the Obama administration’s “pivot,” or “rebalancing,” to Asia, a diplomatic turn matched by planned military redeployments, has signaled that Washington is prepared to get involved in the event of a regional conflict
.
¶
China might be less cautious about triggering a crisis -- and less cautious about firing the first shot if a crisis ensued.
¶ Also, the United States insists that international law affords it freedom of navigation in international waters and airspace, defined as lying beyond a country’s 12-mile territorial limit. China, by contrast, asserts that other countries’ military vessels and aircraft are not free to enter its roughly 200-mile-wide “exclusive economic zone” without express permission -- a prohibition that, given Beijing’s territorial claims, could place much of the South China Sea and the airspace above it off-limits to U.S. military ships and planes. Disputes over freedom of navigation have already caused confrontations between China and the United States, and they remain a possible trigger for a serious crisis.
¶
It is true that China and the U nited
S tates are not currently adversaries
-- certainly not in the way that the Soviet Union and
the
U nited
S tates were during the Cold War. But
the risk of a U.S.-Chinese crisis might actually be great er
than it would be if Beijing and Washington were locked in a zero-sum, life-and-death struggle. As armed adversaries on hair-trigger alert, the Soviet Union and the United States understood that their fundamentally opposed interests might bring about a war. After going through several nerveracking confrontations over Berlin and Cuba, they gained an understanding of each other’s vital interests -- not to be challenged without risking a crisis -- and developed mechanisms to avoid escalation.
China and the United States have yet to reach
a similar shared understanding about vital interests or to develop reliable means for crisis management .
¶ Neither China nor the United States has clearly defined its vital interests across broad areas of the western Pacific. In recent years, China has issued various unofficial statements about its “core interests” that have sometimes gone beyond simply ensuring the territorial and political integrity of the mainland and its claim to sovereignty over Taiwan. Beijing has suggested, for example, that it might consider the disputed areas of the East China and South China seas to be core interests.
¶ Washington has also been vague about what it sees as its vital interests in the region. The United States hedges on the question of whether Taiwan falls under a U.S. security umbrella. And the
United States’ stance on the maritime disputes involving China and its neighbors is somewhat confusing: Washington has remained neutral on the rival sovereignty claims and insisted that the disputes be resolved peacefully but has also reaffirmed its commitment to stand by its allies in the event that a conflict erupts. Such
Chinese and U.S. ambiguity about
the “ redlines
” that cannot be crossed without
risking conflict increases
the chances that either side could take steps that
it believes are safe but that turn out to be unexpectedly provocative.
¶ MORE DANGEROUS THAN THE COLD WAR?
¶
Uncertainty about what could lead either Beijing or
Washington to risk war makes a crisis far more likely, since neither side knows
when, where, or just how hard it can push without the other side pushing back.
This situation bears some resemblance to that of the early Cold War, when it took a

number of serious crises for the two sides to feel each other out and learn the rules of the road. But today’s environment might be even more dangerous.
¶
The balance of nuclear and conventional military power between China and the United States,
for example, is much more lopsided
than the one that existed between the Soviet Union and the United States. Should Beijing and Washington find themselves in a conflict, the huge U.S. advantage in conventional forces would increase the temptation for Washington to threaten to or actually use force
. Recognizing the temptation facing Washington,
Beijing might
in turn feel pressure to use its conventional forces before they are destroyed
. Although
China
could not reverse the military imbalance, it might believe that quickly imposing high costs on the U nited
S tates would be
the best
way to get it to back off.
¶
The fact that both sides have nuclear arsenals would help keep the situation in check, because both sides would want to avoid actions that would invite nuclear retaliation. Indeed, if only nuclear considerations mattered, U.S.-Chinese crises would be very stable and not worth worrying about too much. But the two sides’ conventional forces complicate
matters and undermine the stability provided by nuclear deterrence .
During a crisis, either side might believe
that using its conventional forces would confer bargaining leverage
, manipulating the other side’s fear of escalation through what the economist Thomas Schelling calls a “competition in risk-taking.” In a crisis, China or the United States might believe that it valued what was at stake more than the other and would therefore be willing to tolerate a higher level of risk.
But because using conventional forces would be only the first step in an unpredictable process subject to misperception , missteps, and miscalc ulation, there is no guarantee that brinkmanship would end before it led to an unanticipated nuclear catastrophe .
¶
China
, moreover, apparently believes
that nuclear deterrence opens the door to the safe use of conventional force.
Since both countries would fear a potential nuclear exchange, the Chinese seem to think that neither they nor the Americans would allow a military conflict to escalate too far. Soviet leaders, by contrast, indicated that they would use whatever military means were necessary if war came -- which is one reason why war never came. In addition, China’s official “no first use” nuclear policy, which guides the Chinese military’s preparation and training for conflict, might reinforce Beijing’s confidence that limited war with the United States would not mean courting nuclear escalation.
As a result of its beliefs, Beijing might be less cautious about taking steps that would risk triggering a crisis.
And if a crisis ensued,
China might also be less cautious about firing the first shot.
¶
Such beliefs are particularly worrisome given
recent developments in technology that have dramatically improved
the precision and effectiveness of conventional military capabilities.
Their lethality might confer a dramatic advantage to the side that attacks first,
something that was generally not true of conventional military operations in the main European theater of U.S.-Soviet confrontation.
Moreover, because
the sophisticated computer and satellite systems that guide contemporary weapons are highly vulnerable
to conventional military strikes or cyberattacks, today’s more precise weapons might be effective only if they are used before an adversary has struck or adopted countermeasures. If peacetime restraint were to give way to a search for advantage in a crisis, neither China nor the United States could be confident about the durability of the systems managing its advanced conventional weapons.
¶
Chinese analysts
seem to overestimate how easy it is to send signals through military actions and underestimate the risks of miscommunication.
¶
Under such circumstances, both Beijing and
Washington would have incentives to initiate an attack.
China would feel particularly strong pressure, since its advanced conventional weapons are more fully dependent on vulnerable computer networks, fixed radar sites, and satellites. The effectiveness of U.S. advanced forces is less dependent on these most vulnerable systems. The advantage held by the United States, however, might increase its temptation to strike first, especially against
China’s satellites, since it would be able to cope with Chinese retaliation in kind.
¶ COMMUNICATION BREAKDOWN ¶
A U.S.-Chinese crisis might
also be more dangerous
than Cold War showdowns because of
the unreliability of the existing channels of communication between Beijing and Washington.
After the Cuban missile crisis, the Soviet Union and the United States recognized the importance of direct communication between their top leaders and set up the Moscow–Washington hot line. In 1998, China and the United States also set up a hot line for direct communication between their presidents. But despite the hot line’s availability, the White House was not able to contact
China’s top leaders in a timely fashion following the
1999
Belgrade embassy bombing or
the 2001 spy-plane incident.
China’s failure to use the hot line as intended might have reflected the reluctance of its leaders to respond until they had reached an internal consensus or until they had consulted widely with their military. The delay might also have reflected China’s difficulties in coordinating policy, since China lacks a dependable counterpart to the U.S. National Security Council. Whatever the reason, experience suggests that frustrating delays in direct communication are likely during what would be the crucial early moments of an unfolding
U.S.-Chinese crisis.
¶
Instead, communication between the two countries might initially be limited to either public statements or tacit signals sent through actions. But public statements are aimed at multiple audiences, and nationalist passions in either China or the United
States, as well as pressure from allies, might force either side to take a more aggressive
public stance
than it actually felt was warranted. Absent direct and confidential communication, the two countries might be unable to discuss politically sensitive proposals. They might also be unable to share information that could help head off a disastrous escalation, such as classified details about military capabilities or military maneuvers

already under way.
¶
Communicating
through actions is also problematic, with many possibilities for
distortion in sending messages and for misinterpretation
in receiving them.
Chinese analysts seem to overestimate how easy it is to send signals through military actions and underestimate the risks of escalation resulting from miscommunication.
For example, the analysts Andrew Erickson and David Yang have drawn attention to Chinese military writings that propose using
China’s antiship ballistic missile system, designed for targeting U.S. aircraft carriers, to convey Beijing’s resolve during a crisis. Some
Chinese military thinkers
have suggest ed that China could send a signal by firing warning shots intended to land near a moving U.S. aircraft carrier or even by carefully aiming strikes at the command tower of the U.S. carrier while sparing the rest of the vessel. But as the political scientist Owen Coté has noted, even a very accurate antiship ballistic missile system will inevitably have some margin of error. Consequently, even the smallest salvo
of this kind would entail a risk of inadvertent serious damage and thus unintended escalation .
¶ A final important factor that could make a U.S.-Chinese crisis more dangerous than those during the Cold War is geography. The focus of Cold War confrontations was primarily on land, especially in central Europe, whereas a future confrontation between China and the United States would almost certainly begin at sea. This difference would shape a U.S.-Chinese crisis in a number of ways, especially by requiring both sides to make some fateful choices early on. China’s small fleet of nuclear-armed ballistic missile submarines (SSBNs) and its much larger fleet of conventionally armed attack submarines are most secure when they remain in the shallow waters near the
Chinese mainland, where poor acoustics compromise the effectiveness of U.S. undersea antisubmarine operations. Their proximity to Chinese land-based aircraft and air defenses also limits Washington’s ability to rely on its airpower and surface ships to counter them. For China’s submarine forces to play a role in a showdown with the United States, however, they would have to move out of those safer waters.
¶ The prospect of
China’s submarines
breaking out would dramatically increase the instability of a crisis.
Although U.S. antisubmarine warfare technology would be more effective against
China’s submarines operating in less noisy open waters (where the United States also enjoys air superiority), it would not be perfect: some
U.S. naval assets
that came within range of surviving Chinese submarines would be at risk. Early in a crisis
, therefore, the U nited
S tates would be tempted to minimize this risk by sinking Chinese attack submarines as they tried to leave their home waters.
Especially because there are only a few narrow routes through which Chinese submarines can reach deeper waters, the United States would be tempted to strike early rather than accept an increased risk to U.S. naval forces. Regardless of the U.S. decision, any
Chinese attack submarines that managed to reach distant deeper waters would face a “use them or lose them” dilemma,
thanks to their greater vulnerability to
U.S. antisubmarine forces -- one more potential trigger for escalation.
¶ China’s nuclear-armed SSBNs present
other risks
. Under its no-first-use policy,
China has
clearly stated that any attack on its strategic nuclear forces would justify nuclear retaliation
, making a U.S. strike against its SSBNs seem unlikely. Early in a crisis, therefore, Beijing would probably believe that it could safely deploy its
SSBNs to distant, deeper waters, where they would be best positioned to execute their launch orders. Such a deep-water deployment, however, would introduce new dangers. One is the possibility that
U.S. naval forces might mistake a Chinese SSBN for a conventional attack submarine and fire on it, inviting Chinese nuclear retaliation
. Another is the danger that a Chinese SSBN could escalate the conflict without explicit orders from Beijing,
owing to the limited communication such submarines maintain with the mainland in order to avoid detection.

(Don, freelance technology columnist, “Why the Sony Hack Is a Serious Cyber-War
Escalation,” 12-3, http://www.eweek.com/security/slideshows/why-the-sony-hack-is-a-serious-cyberwar-escalation.html, CMR)
Sony can't catch a break, no matter how hard the company tries. Just years after its PlayStation Network was taken down by a major hack, the
Sony
Pictures business has also fallen prey to hackers that have not only accessed a wide range of internal information that is at least embarrassing to the company, but also provided to the public DVD-quality copies of some of Sony Pictures' upcoming films. The hack is unprecedented
in some respects and speaks to the ability of today's hackers to infiltrate a company and wreak havoc
.
But it's also indicative of the ever-escalating threats to corporate data resources and the global economy from cyber-attacks
.
The latest attacks are raising the question of whether any corporate network can be kept safe from determined hackers. Today, hackers are increasingly turning to corporate and government servers to steal personal information, intellectual property and secrets that they can sell or deliver to governments seeking economic, diplomatic or military advantages. In other words, the cyber-war keeps expanding and the digital battlefield is looking scarier by the day
. This eWEEK slide show covers the details of the latest Sony hack and its implications for enterprise and government IT security.
(Kevin, Technology Management Consultant, “Department of Cyber Defense An organization who’s time has come!” November, Technolytics, www.technolytics.com/Dept_of_Cyber_Defense.pdf)
Each and every day there are millions of cyber attacks from hackers around the world that are not part of a terrorist group or nation state. These attacks are criminal and not acts of war. One major concern is that an attack from hackers that are not politically tied to a nation or group could be easily mistaken for an act of cyber war. In that case, the nation where the hackers
target resided would retaliate to the attack against the nation where the attack or attacks originated.
It is easy to see how this could
happen and rise to an exchange using conventional arm
(back to the bombs and bullets). It is also conceivable that a conventional exchange could escalate to the use of weapons of mass destruction!

(Ned, B.A., Tulane University, 2011, “WARRANTS IN THE CLOUDS: HOW
EXTRATERRITORIAL APPLICATION OF THE STORED COMMUNICATIONS ACT THREATENS THE UNITED
STATES’ CLOUD STORAGE INDUSTRY,” Volume 9, Issue 2, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1033&context=bjcfcl, CMR)
B. On A Broader Scale: Tensions Rise between the European Union and the United States
The district court’s decision to uphold the SCA warrant raises tensions between the U nited
S tates and foreign nations
, in particular those within the E.U.,
when it comes to the U.S. surveillance of international data security and privacy protections.168 The NSA
WikiLeaks/Snowdcn scandal is only but a recent memory, especially for those of the E.U.169 The E.U. is still hesitant of the United States’ unrefined and mostly undefined Internet privacy policies after the NSA’s “sweeping surveillance was legalized when Congress passed the USA
PATRIOT Act.” 170 After documents were revealed that exposed the NSA’s surveillance was not only of suspected terrorists, but of communications between Americans and roughly thirtyfive world leaders,171 the N.S.A’s “PRISM Programme continues to haunt the principles of data protection across Europe.”172 Therefore, the district court’s approval of the SCA warrant only increases the E.U.’s skepticism of U.S. data privacy laws and heightens their fear of privacy violations by the United States.
Certain E.U. nations have taken, or have threatened to take, significant action in response to the district court’s ruling.
173 For example, the German government has already publically stated that it will refuse to use any U.S. company for data storage unless the Microsoft warrant is overturned
.174
Germany could be the first of many countries to shy from using U.S. data companies for data storage to avoid privacy risks as a consequence of the SCA’s extraterritorial reach
.175 For Microsoft, this would be increasingly problematic both for their international cloud network and business outlook.171’ Microsoft stands to lose an entire nation’s worth of revenue that cannot easily be replaced. More importantly, such a loss would enable foreign competitors to gain stronger positions in the cloud industry, as foreign customers elect to use non-U.S. Technology Companies to store their wealth of electronic information due to U.S. privacy concerns. It remains unclear whether there is anything Microsoft could do on its own to repair its business relationship with Germany and other E.U. nations from a privacy policy perspective as the law currently stands.177
The Managing Director of Microsoft Germany has been busy at work trying to come up with solutions should the warrant be upheld on appeal.178 However, no solution would completely alleviate the United States’ ability to request data stored on Microsoft servers in Germany, unless the data was completely separated from the United States. 174 Beyond Germany, other European nations, including
Ireland, have formally requested that the European Commission examine whether the SCA warrant violates any E.U. data protection laws
. ls0 U.S. Technology Companies have also pushed the E.U. to investigate whether the district court’s ruling has violated E.U. data privacy laws as well.
The amount of legal uncertainty the extraterritorial application of the SCA creates is alarming
both to foreign nations
and domestic technology companies alike. 181 The fact that neither the E.U. Commission nor U.S. companies know if E.U. data protection laws have been violated only highlights the inherent difficulty in finding an international solution should the SCA warrant be approved on appeal. Currently, it is not yet clear if the district court’s order and magistrate judge’s warrant under the SCA forces Microsoft to violate any E.U. privacy laws. 182 Microsoft has previously argued before both the magistrate judge and district court judge that the proper channel to obtain the e-mails was through the bilateral U.S.-Irish
MLAT. 183 However, as previously noted, this is a flawed argument as the U.S.-Irish MLAT is neither mandatory nor persuasive. 184 Looking at the E.U.’s data protection laws directly does not help much either. In 1995 the European Community (EC) “attempted to harmonize data protection laws in order to secure approval from EC member states through the EC Data Protection Directive.”185 Initially, EC member states that had “historically high data protection standards,” were hesitant to approve the legislation.186 In response, the EC Data Protection
Directive included a general ban on processing and transferring personal data outside the European Economic Area (EEA), unless a limited number of exceptions applied.187 Therefore, before the E.U. could transfer personal data outside the EEA, the recipient nation must have established “adequately protective privacy laws.”188 U.S. privacy laws do not pass this criterion.189 However, data transfer between the U.S. and E.U. was still necessary, and therefore the two agreed to establish the Safe Harbor Privacy Principles1911 to allow U.S. companies a method to certify compliance with E.U. privacy standards to enable the transfer.191 Microsoft is certified under Safe Harbor Principles to transfer personal data between the E.U.192 In addition, Microsoft’s terms of use for its e-mail platform, Outlook.com, “explicitly reserve[s] the right to provide user data in order to satisfy applicable law, regulation, legal process or governmcntal requests.”193 To add to the confusion, some have claimed that the private e-mails, should they be produced and transferred under the SCA warrant, would not be transferred under
Safe Harbor Principles.194 Therefore, further investigation is necessary to determine Microsoft’s liability through compliance with the SCA warrant. Most importantly, Microsoft and other
U.S. Tech nology
Companies are in the near impossible situation of sifting through vague domestic and international legislation in the attempt to create a definitive and clear privacy policy to calm frustrated customers and avoid violating either foreign or domestic law
.195

U.S. technology and cloud providers would “need to promptly review their business models and engage with data protection regulators, at least to the extent they host data, including personal data, in the EEA on behalf of third parties . . . .”1%
(analyst in European affairs, “The United States and Europe: Current Issues”, 7/10, http://fas.org:8080/sgp/crs/row/RS22163.pdf)
In 2013, press reports began surfacing about U.S. National Security Agency (NSA) surveillance programs in the United States and Europe created acute tensions in the transatlantic relationship. Among other allegations, the reports asserted that objects of U.S. spying included the EU offices in Washington, DC and the cell phone of German Chancellor Angela Merkel. The information was based on leaked, classified documents obtained from Edward Snowden, a former NSA contractor; and focused on operations allegedly conducted by the NSA and the UK’s Government Communications Headquarters (the UK’s signals intelligence agency). The
Many
European leaders,
and European citizens
deeply dismayed by the reports and
Criticism has been most pronounced in Germany, where disclosed
NSA activities appear to have been broad in scope and the issue of government surveillance of private citizens evokes particularly strong feelings due to the legacy of domestic spying by the Nazi and East German regimes.
(James,
James Ball is a data journalist working for the Guardian investigations team. He joined the
Guardian from WikiLeaks, and the Bureau of Investigative Journalism. 7/10, http://www.theguardian.com/world/2013/oct/24/nsa-surveillance-world-leaders-calls )
The document notes that
, including those
the
, none of whom is named
immediately
after the
Angela Merkel on Wednesday
After
Merkel's allegations became public, White House press secretary Jay Carney issued a statement that said the US "is not monitoring and will not monitor" the German chancellor's communications. But that failed to quell the row, as officials in Berlin

quickly pointed out that
in the past. Arriving in Brussels for an EU summit
The NSA memo obtained by the Guardian suggests that such surveillance was not isolated, as
– and even asks for the assistance of other US officials to do so.

(Jeff, “How the U.S. and EU Can Find a Path Forward After Snowden,” April 2, https://privacyassociation.org/news/a/how-the-u-s-and-europe-can-find-a-path-forward-aftersnowden/, CMR)
How the U.S. and EU Can Find a Path Forward After Snowden The seemingly endless stream of revelations from Edward Snowden about the surveillance activities of U.S. intelligence agencies have put the EU in a bind.
Despite the occasional dark suspicions of
American officials and media that the goal of EU policy is to hobble American power and influence, the truth is quite different
. But today, the EU needs America’s help in shoring up a strategic relationship that is vital to both sides
.
The U.S. remains by far the EU's most important trading partner
, importing more than twice as much from the EU last year as China. And despite the EU’s evident desire to avoid conflict with Russia, China or Iran, the
U.S. indisputably remains its only true strategic partner in world affairs
. Putting aside the inevitable posturing of politicians for the benefit of local lobbies and voters—common on both sides of the Atlantic—no EU government seriously thinks of the U.S. relationship as anything less than indispensable. And yet the discovery of the extraordinary technical capabilities of our intelligence agencies
, and above all the very broad manner in which these capabilities have been deployed, has shocked
Europe
. Not since the deployment of U.S. short-range nuclear missiles to Germany in the early 1980s (to counter the threat from similar
Soviet missiles) has European public opinion been so roiled with doubt about America’s good intentions. Resolving the tensions between the
U.S. and EU over surveillance will not be easy. EU countries have their own intelligence agencies with sophisticated surveillance tools, and in the wake of recent Islamic terrorism, they are inclined to make more rather than less use of them. The EU's leaders may also acknowledge in private that they count on American intelligence assistance to combat these threats. But the power of public opinion is something that no politician can ignore. Many EU citizens believe that Internet surveillance by intelligence agencies—whether foreign or their own—is an intolerable violation of their fundamental right to privacy. Democratically elected leaders cannot ignore these voices. It should therefore come as no surprise that the EU's leaders now look urgently to the U.S. for a path forward. In the real world, a viable path forward can only begin with incremental steps. The U.S. must understand that it will have to accept stricter and more formal limits on its ability to conduct electronic surveillance in the EU. The U.S. will also have to grant EU citizens certain rights of legal recourse similar to those enjoyed by Americans. The EU, for its part, must understand that the U.S. cannot and will not abolish the FISA court or dismantle the NSA. Such steps are politically impossible in the U.S. and would be harmful to the EU's own well-considered self-interest in a dangerous world.
One concrete measure
that is politically feasible in the U.S., and that would take a significant
if only partial step toward satisfying EU concerns, would be to limit the power of American courts and prosecutors to seize electronic data stored in the
EU by American firms
. A bill to do this—the so-called Law Enforcement Access to Data Stored Abroad (
LEADS) Act
—has been introduced in Congress by a bipartisan group of senators and representatives. It is uncertain when or if the LEADS Act will
pass. It could be amended or merged with a related but broader bill intended to modernize the
1980s-era Electronic Communications Privacy Act
(
ECPA
)— the basic law governing judicial access to domestic electronic communications in the U.S.
Congress would be wise to pass
both
LEADS
(or something close to it) and broader ECPA reform, and the White House would be wise to sign them. The need to restore the EU's confidence in the strategic value of the transatlantic relationship
is not the only reason to pass these bills. From a purely domestic point of view, the proposed laws are necessary improvements in our outdated legal framework for law enforcement access to electronic data. But the views of Europeans should not be overlooked by Washington
. In these troubled and uncertain times, we need a strategic partner we can count on
.
( German institute for International and Security Affairs, head of research division.
Areas of expertise include: United States, Foreign policy of a country/ region, State and society of a country/ a region, Transatlantic relations, the United Nations, and domestic policy. Thimm’s education includes: 2007-2008
Fox International Fellow at Yale University, New Haven, 2004-2007 PhD fellowship, Forum Ebenhausen and SWP,
2004 Carlo Schmid Fellow at the Organization for Security and Co-operation in Europe (OSCE), Vienna, 2000-2001
Fulbright Scholar, studies at the Political Science Department at the University of Washington, Seattle.7/9/15, http://www.swp-berlin.org/fileadmin/contents/products/comments/2014C04_tmm.pdf)

Europeans like to see themselves as equal partners in the transatlantic partnership. This is truer in some areas of the relationship than in others.
Trade negotiations take place on equal footing, since the economies of the EU and the U.S. are roughly equal in size, and decisions concerning the common market are the
European Commission’s responsibility. In contrast, in military and defense matters, the U.S. plays in its own league. Nobody in Europe even aspires to match its role as a global military power. Traditional foreign policy is located somewhere between these two extremes.
The importance of the surveillance affair lies in the fact that it touches on so many aspects of foreign policy. The bulk collection of EU citizens’ private data, in blatant disregard of EU regulations, not only violates the sovereignty of each member state and the EU as a whole, it also interferes with European systems of justice. The bugging of EU institutions and policy makers violates international norms and rigs the game of traditional diplomacy. And the alleged economic espionage has the potential to skew economic competition in favor of the U.S. In all of these areas, the NSA’s activities reveal asymmetries between what each side is capable of and authorized to do. They also increase the power gap further in favor of the U.S. The excuse that
“every- SWP Comments 4 January 2014 2 body spies” rings hollow.
Just imagine the U.S. reaction if German intelligence had tried to tap the U.S. President’s phone. What is even more telling than the NSA’s activities themselves is the timid response from European governments, especially in contrast with the much more assertive reaction from the government of Brazil.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCYQIDAB&url=http%3A%
2F%2Fwebcache.googleusercontent.com%2Fsearch%3Fq%3Dcache%3Ard3XzzvuYpUJ%3Awww.europarl.europa.eu%2FReg
Data%2Fbibliotheque%2Fbriefing%2F2014%2F140760%2FLDM_BRI(2014)140760_REV1_EN.pdf%2B%26cd%3D2%26hl%
3Den%26ct%3Dclnk%26gl%3Dus&ei=ZPueVfrUBYy5-
AH54LaYBQ&usg=AFQjCNHQTIEI9BaTZbkwYJHomho9Bjmclw&sig2=4djA3Bq-dJKLMlRVG90-qA)
(Nichola, former (ret.) Ambassador to NATO and former Under Secretary of State for Political Affairs, letter to the
White House, April 30 2015, https://www.whitehouse.gov/sites/default/files/docs/europe_t-tip__tpa_letter.pdf)
As senior officials in the transatlantic relationship, former U.S. Ambassadors to European countries, the
European Union, and NATO who served under Republican and Democratic administrations, each of us has witnessed first-hand the tremendous diplomatic, economic, and security benefits that transatlantic relations bring the United States. For that reason, we strongly support the Transatlantic Trade and
Investment Partnership (TTIP) and call on Congress to renew Trade Promotion Authority (TPA) so that this agreement can be completed successfully. The economic relationship between the United States and the European Union is already the world’s largest, accounting for one third of total goods and services trade and nearly half of global economic output, while supporting more than 13 million
American and European jobs. TTIP would bolster this relationship even further by providing greater compatibility and transparency in trade and investment regulations, while maintaining high levels of health, safety, and environmental protections. It would enable the United States and the European
Union to continue taking the lead in setting global trade rules and standards, and reinforce our shared commitment to democracy, freedom, and the rule of law.

For each of us, the opportunity to serve our country and contribute to a stronger transatlantic relationship was the greatest honor of our careers. TTIP represents a unique opportunity to boost economic growth and strengthen the national security of the United States by reinforcing our relationships with our most important allies. At a time when deeper transatlantic ties are becoming a necessary means for the West to meet a range of global challenges, we ask you to expeditiously support TPA based on a clear framework for concluding the negotiations of this vital agreement.
(William, Specialist in International Trade and Finance, EU-US Economic Ties: Framework, Scope, and Magnitude,
February 21 2014, https://www.fas.org/sgp/crs/row/RL30608.pdf)
The EU as a unit is the largest merchandise trading partner of the United States. In 2012, the EU accounted for $265.1 billion of total U.S. exports (or 17.1%) and for $380.8 billion of total U.S. imports
(or 16.7%) for a U.S. trade deficit of $115.7 billion. At the same time, the United States is the largest non-EU trading partner of the EU as a whole. In 2012, EU exports to the United States accounted for
17.1% of total exports to non-EU countries, while EU imports from the United States accounted for
11.4% of total imports from non-EU countries.
For a number of years, the United States realized trade surpluses with the EU. However, since 1993, the
United States has been incurring growing trade deficits with the EU ($125.1 billion in 2013).
Among the top U.S. exports to the EU have been aircraft and machinery of various kinds, including computers, integrated circuits, and office machine parts. A large share of U.S. imports from the EU has consisted of passenger cars; machinery of various types, including gas turbines; computers and components; office machinery; and parts and organic chemicals. Within the EU, Germany, the United
Kingdom, and France are the leading U.S. trading partners, followed by the Netherlands and Italy. The
EU is the largest U.S. trade partner when trade in services is added to trade in merchandise. In 2012
(latest data available), the EU accounted for $193.8 billion (or 30.7% of the total in U.S. services exports). Of this amount, $31.4 billion derived from receipts for various travel services, $10.3 billion from payments for passenger fares, and $14.9 billion for other transportation fees (freight and port services). Another $47.2 billion were in receipts for royalties and licensing fees, and $88.9 billion derived from other private sector services, including business, professional, and technical services (including legal services), and insurance. Also included under services are revenues from transfers under U.S. military contracts, which equaled $0.7 billion in 2012.
In 2012, the EU accounted for $149.7 billion (or 34.4% of total U.S. services imports)—including travel services ($21.7 billion), passenger fares ($13.2 billion), and freight and port fees ($18.6 billion). Royalties and licensing fees accounted for another $18.4 billion. In addition, other private sector services accounted for $66.0 billion of imports. Also included were payments of $10.4 billion in defense-related expenditures.
(David, David O’Sullivan served as the Chief Operating Officer of the European External Action Service.
The EEAS supports the High Representative/Vice President of the European Commission, in fulfilling her mandate to ensure the consistency of the Union’s external action. The EEAS also assists the President of the European Council and the President of the
European Commission in the area of external relations. 7/9, http://www.euintheus.org/what-we-do/policy-areas/tradeinvestment-and-business/eu-us-relations-trade-and-investment/ )
Perhaps the most defining feature of the global economy,
in services. We are

each other’s main trading partners and goods and services, and together we have the largest bilateral trade relationship in the world
Our two economies also provide each other with our most important sources of foreign direct investment. Close to a quarter of all EU-US trade consists of transactions within firms based on their investments on either side of the Atlantic. In fact, U.S. investment in Europe is more than three times more than in all of Asia combined.
who owe their jobs directly or indirectly to companies from the other side of the Atlantic
remains on solid ground and
April 22, 20
( The Commission is composed of the College of
Commissioners of 28 members, including the President and Vice-Presidents. The Commissioners, one from each EU country, are the Commission's political leadership during a 5-year term. Each Commissioner is assigned responsibility for specific policy areas by the President. 7/10, http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/ )
is
in
around
EU
EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sides of the Atlantic. It is estimated that
the
across the Atlantic actually
The transatlantic relationship also defines the shape of the global economy as a whole.
The
and the
economies
and for nearly a third of world trade flows.

(Kristin, Specialist in European Affairs, “U.S.-EU Cooperation Against Terrorism,” Dec 1, https://www.fas.org/sgp/crs/row/RS22030.pdf, CMR)
Promoting law enforcement and intelligence cooperation with the U nited
S tates has been a nother top EU priority
since 2001.
Washington has largely welcomed enhanced counterterrorism cooperation with the
EU, which has led to a new dynamic in U.S.-EU relations by fostering dialogue on law enforcement and homeland security issues
previously reserved for bilateral discussions.
Contacts between U.S. and EU officials on police, judicial, and border control policy matters have increased substantially and a number of new
U.S.-EU agreements have
also been reached; these include info rmationsharing arrangements between the
United States and EU police and judicial bodies, two U.S.-EU treaties on extradition and mutual legal assistance, and accords on container security and airline passenger data. In addition, the U nited
S tates and the EU have been working together to curb terrorist financing and to strengthen transport security.
(Kristin, Specialist in European Affairs, “U.S.-EU Cooperation Against Terrorism,” Dec 1, https://www.fas.org/sgp/crs/row/RS22030.pdf, CMR)
U.S.-EU efforts against terrorism have produced a number of new accords that seek to improve police and judicial cooperation
. In 2001 and 2002, two U.S.-Europol agreements were concluded to allow U.S. law enforcement authorities and Europol to share both “strategic” information (threat tips, crime patterns, and risk assessments) as well as “personal” information (such as names, addresses, and criminal records). U.S.-EU negotiations on the personal information accord proved especially arduous, as U.S. officials had to overcome worries that the United States did not meet EU data protection standards.
The EU considers the privacy of personal data a basic right
, and EU regulations are written to keep such data out of the hands of law enforcement authorities as much as possible. EU data protection concerns also reportedly slowed negotiations over the 2006 U.S.-Eurojust cooperation agreement noted above. In 2007, the United States and the EU also signed an agreement that sets common standards for the security of classified information to facilitate the exchange of such information.
In 2010, two new U.S.-EU-wide treaties on extradition and mutual legal assistance
(MLA) entered into force following their approval by the U.S. Senate and the completion of the ratification process in all EU member states
. 16
These treaties
, signed by U.S. and EU leaders in 2003, seek to harmonize the bilateral accords that already exist between the U nited
S tates and individual EU members, simplify the extradition process, and promote better info rmationsharing and prosecutorial cooperation
. Washington and Brussels hope that these two agreements will be useful tools in combating not only terrorism, but other transnational crimes such as financial fraud, organized crime, and drug and human trafficking
. In negotiating the extradition and MLA agreements, the U.S. death penalty and the extradition of EU nationals posed particular challenges. Washington effectively agreed to EU demands that suspects extradited from the EU will not face the death penalty, which
EU law bans. U.S. officials also relented on initial demands that the treaty guarantee the extradition of any EU national. They stress, however, that the extradition accord modernizes existing bilateral agreements with individual EU members, streamlines the exchange of information and transmission of documents, and sets rules for determining priority in the event of competing extradition requests between the United States and EU member states.
The MLA treaty
will provide U.S. authorities access to European bank account and financial info rmation in criminal investigations, speed MLA request processing, allow the acquisition of evidence
(including testimony) by video conferencing, and permit the participation of U.S. authorities in joint EU investigations
. 1

(Jonah Force, writes on Internet policy and cybersecurity issues, and formerly served in the
White House Office of the Cybersecurity Coordinator and as a Cybersecurity Teaching Fellow at Harvard,
“Problematic Alternatives: MLAT Reform for the Digital Age,” Jan 28, http://harvardnsj.org/2015/01/problematic-alternatives-mlat-reform-for-the-digital-age/, CMR)
Both alternatives to MLATs—localization and jurisdictional expansion—are deeply problematic. First, forcing companies to hold data domestically (or to insist that only domestic firms operate domestically) will likely raise Internet user and small business costs and reduce the ability of firms to aggregate services and data analytics through cloud services. Equally important, localization policies will probably degrade data security by making censorship and surveillance easier for domestic governments (and perhaps even foreign governments).[1] Jurisdictional expansion will subject companies to multiple and often competing jurisdictions, and may force firms to leave certain markets. Under either of these scenarios, Internet companies suffer, Internet users suffer, and privacy and Internet freedom may suffer as well.

th
th
(Drew, “Threats to cloud computing require a solution from the 18th century,” Deseret News,
March 1, lexis, CMR)
We've evolved
from static Web pages to social networking to "cloud computing,"
which means that personal documents are n't stored
on our computers and smartphones but on servers throughout the world
. And yet citizens' security
in their digital possessions has never been more threatened
. Fortunately, there are two bills - one co-sponsored by Utah Sen. Orrin
Hatch, the other co-sponsored by Utah Sen. Mike Lee - that go a long way to restoring constitutional protections for Internet information. It's important at the outset to dispense the shibboleth that the Internet changes everything.
What the Internet needs is a strong dose of 18th-century legal wisdom
, not words about "freedom of expression in the 21st century," to quote the chairman of the
Federal Communications Commission during last Thursday's vote by the agency on network neutrality. The Constitution says that we have the right to be secure in our "persons, houses, papers and effects." We have the right to speak free from regulation by the government. There are some who say that the Internet has rewritten the laws of supply and demand, or changed common decency and morality, or altered the possibility of being free from police surveillance. They are mistaken.
The Fourth Amendment
to the Constitution articulates the right of Americans' sources of private info rmational documents to be secure "against unreasonable searches and seizures." This
doesn't prevent the government or the police from obtaining information upon probable cause or reasonable suspicion; it simply bars the issuance of general warrants
. On Feb. 4, a bipartisan group of senators and representatives introduced the Electronic Communications Privacy Amendments Act of 2015. "The bill we are introducing today protects
Americans' digital privacy - in their emails, and all the other files and photographs they store in the cloud," said Sen. Patrick Leahy, D-Vt., who has long been seeking to update this law that first passed in 1986. The language of that original ECPA law focused too specifically on technologies used in early electronic mail services. As a result, it didn't protect the privacy of data when stored by another company in a cloudbased service. Both this year and during last Congress, when he introduced a similar measure, the Democrat Leahy has been joined by the
Republican Lee. When the bill was reintroduced last month, Lee said: "The prevalence of email and the low cost of electronic data storage have made what were once robust protections insufficient to ensure that citizens' Fourth Amendment rights are adequately protected." ECPA isn't the only proposed law that would restore privacy protections granted in the Fourth Amendment to documents stored in the cloud. Another such measure, introduced on Feb. 12, is the Law Enforcement Access to Data Stored Abroad Act, or LEADS. Sponsored by Hatch and Sens. Chris
Coons, D-Del., and Dean Heller, R-Nev., the bill addresses an unfortunate federal district court decision in June that required Microsoft to hand over data stored in an Irish data center to federal prosecutors. "
If the government's position prevails, it would have huge detrimental impacts on American cloud companies that do business abroad
,'' attorney Michael Vatis told the Washington Post. Vatis co-authored a brief by Verizon Communications defending Microsoft's position on the Fourth Amendment.
"While I agree in principle with the ECPA reform bills," Hatch said, speaking of the Leahy-Lee measure, it does not "establish a framework for how the U.S. government can access data stored abroad." Hatch said that the issues faced by U.S. companies storing data on behalf of U.S. customers is important whether the data is stored in the U.S. or overseas. A trade group advocating on behalf of Internet infrastructure companies has identified ECPA reform and the passage of the LEADS act as their key legislative priority this year. "
One of the reasons that
U.S. Internet infrastructure is used by businesses around the world is because people around the world know and count on the laws that govern access to data, and that they are reliable, transparent and uniformly enforced
," said David Snead, co-founder of the Internet Infrastructure Coalition. Referring to revelations of the past two years regarding the widespread surveillance of U.S. citizens by the National Security Agency, Snead said that the LEADS Act was
"of increased importance because the confidence in the Fourth Amendment has been eroded." The pace of tech nology change unleashed by the Internet makes it tempting to treat the principles in our
Constitution and Bill of Rights as obsolete
.
But efforts to pass
ECPA reform and the LEADS Act are important not because they would create new rights, but because they would restore the principles of the Fourth
Amendment in the face of Internet change
.

(Ned, B.A., Tulane University, 2011, “WARRANTS IN THE CLOUDS: HOW
EXTRATERRITORIAL APPLICATION OF THE STORED COMMUNICATIONS ACT THREATENS THE UNITED
STATES’ CLOUD STORAGE INDUSTRY,” Volume 9, Issue 2, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1033&context=bjcfcl, CMR)
VI. FUTURE LEGISLATION AND CONSIDERATIONS - INTRODUCTION OF
THE LEADS ACT
TO SENATE In reaction to the extraterritorial application of the SCA in In Re Warrant o f a Certain E-mail Account Controlled and Maintained by Microsoft Corporation,222 several members of Congress have already introduced a new bill to the Senate floor to quell domestic and international reactions
to the warrant and
to begin the process of amending the SCA
.223 The new bill, entitled the LEADS Act
,224 looks to “preclude the use of U.S. warrants to obtain communications content stored outside the
[
U nited
S tates] unless the content is in the account of an American
.”225 Therefore, in order for the U nited
S tates to be able to force
Microsoft to disclose private e-mails located on servers abroad
through the use of a judicial warrant, the customer or user of those e-mails must be a U.S. citizen
.226
The goal of this Act is to help
deal with the foreign reaction to the SCA warrant and soften fears of foreign citizens of being subject to U.S. privacy invasion
. As previously discussed, a clear indication of Congress’s extraterritorial intent is worriedly missing from SCA itself.227 The language of the SCA is vague at best, and its legislative history does not give insight as to whether Congress intended the SCA warrant to apply so broadly when it was
First drafted in 1986. The
LEADS Act seeks to clarify Congress’s intention of the extraterritorial application of the SCA and to limit the judicial warrant’s international scope and reach
. The courts should not be forced to interpret the SCA as it is currently written with as much discretion as they are forced to use since the statute is dated and presently insufficient.
The reactions from U.S. Tech nology
Companies and nations abroad from the current SCA warrant interpretation shows that clarification and limitations on the U nited
S tates’ extraterritorial warrant powers on electronic data is necessary going forward
.228 Whether the LEADS Act clarifies the SCA enough or whether it will be passed by the Senate and ratified at all remains to be seen.

(Patrick, president of the Media Institute, a nonprofit organization that promotes free speech, sound communications policy and excellence in journalism, “The LEADS Act and cloud computing,” March 30, http://thehill.com/blogs/pundits-blog/technology/237328-the-leads-act-andcloud-computing, CMR)
Bipartisan legislation
, introduced last month in the House and Senate, promises to reform and update the antiquated
Electronic Communications Privacy Act (
ECPA) and
in the process push back against the practice by agencies of government to gain access to personal data stored on U.S. corporation servers abroad
. The legislation, called the LEADS Act, is co-sponsored in the Senate by Sens. Orrin Hatch (R-Utah), Chris Coons (D-Del.) and Dean Heller (R-Nev.), and in the House by
Reps. Tom Marino (R-Pa.) and Suzan DelBene (D-Wash.). Short for "Law Enforcement Access to Data Stored Abroad," the LEADS Act's principal improvements on ECPA are in recognizing that U.S. law enforcement may not use warrants to compel the disclosure of customer content stored outside the U nited
S tates unless the account holder is a U.S. person, and by strengthening the process
— called MLATs
(mutual legal assistance treaties) — through which governments of one country allow the government of another to obtain evidence in criminal proceedings
.
One of the better examples of the need for updating ECPA centers on a government warrant served on Microsoft for the contents of the email of an Irish citizen stored on a Microsoft server in Dublin
. The government's interest in this individual is reported to be in connection with drug trafficking. Microsoft denied the request and is currently embroiled in litigation, now before a federal appeals court. At the mention of drug trafficking one imagines that many people might, at first glance, side with the government in this. But consider the same scenario, only with the countries reversed.
Imagine the outrage if the Irish government demanded that a server located in the U.S. turn over to it the contents of the personal email of a U.S. citizen
!
The larger issue
in the Microsoft case, and as addressed by the
LEADS legislation, is the fear
, especially since the Edward Snowden revelations, that foreigners will lose confidence that the content of their email on U.S. servers will be open to government inspection, and go elsewhere for the purpose
. Organizations like Forrester Research and the Information Technology and Innovation Foundation have attempted to put a price tag on the cost to the U.S. cloud computing industry of what is called the PRISM project, an outgrowth of the Protect
America Act which authorizes the NSA to conduct metadata searches of email. Those estimates are uneven, and evolving, but all the figures reported are in the billions of dollars. And while PRISM operates on a different legal foundation than the one, ECPA, that is the subject of the
LEADS Act, there can be no question that
if Microsoft were to lose its case, and in the absence of the passage of the
LEADS Act, U.S. cloud providers will suffer
.

(Jeff, CEO Peerstone Research, “The LEADS Act: A Transatlantic Olive Branch from the U.S. to
Europe Over Government Access to Data,” Feb 20, https://medium.com/@jeffgould/the-leads-act-atransatlantic-olive-branch-over-government-access-to-data-411fab0c8538, CMR)
Here is where the proposed amendment to ECPA comes in.
Known as the LEADS Act
(Law Enforcement Access to Data
Stored Abroad Act), the bill was introduced by two Republicans
(Senators
Hatch and Heller) and a Democrat
(Senator
Coons
). They recognize that regardless of the outcome of Microsoft’s current legal battle, the fundamental question of how and when U.S. authorities can demand access to data abroad will only grow in importance
. They therefore propose two simple but powerful rules governing what U.S. courts can do. A warrant for overseas data will only be valid if: (1) It concerns a U.S. citizen or permanent resident; and (2) It does not violate the laws of the foreign country where it is to be executed.

(Wayne, “U.S. Bill Would Ban DoJ Warrant for Email in Overseas Microsoft Server,” 2-14, http://www.eweek.com/cloud/u.s.-bill-would-ban-doj-warrant-for-email-in-oversears-microsoft-server-
2.html, CMR)
U.S. legislators are backing a bill that would ban the use of warrants to grab data in overseas computers
, the same type of warrant Microsoft is currently fighting. Microsoft's troubles with the U.S. Department of Justice would come to an immediate end with the passage of the LEADS Act, which was introduced in the U.S. Senate on Feb. 12. The bill, known more formally as the Law Enforcement Access to Data Stored Abroad Act, would among other things put a stop to the Justice Department's demand that
Microsoft turn over emails stored on a server overseas. The LEADS Act would allow law enforcement officials to get access to electronic data on the same basis as other material that's held in non-electronic form. Briefly this means that for law enforcement to get access to data stored outside the U.S., the request must either use a mutual assistance treaty or it must belong to a U.S citizen. Currently, the Justice Department is trying to get email messages belonging to a European Union citizen that are stored on a server in Ireland. This is the second time the Senate has considered the LEADS Act, which was originally introduced last fall, but Congress adjourned for the year before it could go to a vote.
The bill was introduced by
Sen. Orrin
Hatch
, R-Utah; Sen. Chris
Coons
, D-Del.; and
Sen Dean
Heller
, R-Nev.
The House
of
Representatives is readying a similar bill that been co-sponsored by more than half of the members
of that body, although it has yet to be formally introduced on the House floor. One of the purposes of the LEADS Act is to restore international cooperation, which has been set back by the actions of the Justice Department to the extent that a number of European nations are working on laws that would restrict the ability of U.S. companies to operate in the EU because of the attempts by prosecutors in the U.S. to force access to data held by European entities. "The LEADS Act promotes U.S. business by allowing U.S. companies to compete on a level playing field. The
LEADS Act would clarify ECPA by stating that the U.S. government cannot compel the disclosure of data from U.S. providers stored abroad if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. person," Hatch said in his keynote address at an event the day the bill was introduced. "Without this legislative change, a German tech company could claim that German citizens should not use U.S. Internet services because those services are more vulnerable to U.S. law enforcement collection efforts," Hatch stated as a hypothetical situation, although exactly this scenario is taking place in Europe now.
The LEADS Act is getting a lot of strong support from the tech nology community
, as you would expect.
A number of companies
, including
Microsoft
,
IBM
, the Business Software Alliance, Cisco and Verizon, have announced their support
for the bill on Twitter.
Karen Evans and Julie Anderson. (Karen S. Evans is national director of the U.S. Cyber Challenge, a nationwide talent search and skills development program focused specifically on the cyber workforce.
She served as administrator for e-government and IT at the Office of Management and Budget under
President George W. Bush. Julie M. Anderson is a principal at AG Strategy Group. She previously served as the acting assistant secretary and deputy assistant-secretary of policy and planning at the
Department of Veterans Affairs under President Barack Obama.) "Much-needed bipartisan privacy reform: Support LEADS”. Federal Times. 3/23/15. http://www.federaltimes.com/story/government/it/blog/2015/03/23/electronic-communicationsprivacy-act-reform/70330234/.
From the perspective of two appointees who have served in different presidential administrations, we don't see eye-to-eye on every issue. But we do share common ground in our support of the Law
Enforcement Access to Stored Data Abroad (LEADS) Act. Our bipartisan support is a testament to its importance. The LEADS Act is a reasonable and bipartisan approach to reforming outdated laws; enacting the legislation will preserv[ing] e
the balance between privacy and security while updating the rules that govern digital trade. We'd like to highlight why this legislation is vital to law enforcement activities and individual privacy.

The App Association. The leading organization representing software companies in the mobile app community, sponsored by Apple, Verizon, AT&T, Intel, Facebook, Verisign, Microsoft, Flurry, eBay,
BlackBerry, and PayPal. “LEADS Act: The App Association member companies LEADS Act support letter”.
ACT | The App Association. May 13, 2015 (as of the letter sent). http://actonline.org/leads/
ACT | The App Association member companies LEADS Act support letter
The following companies ask Members of Congress to cosponsor the LEADS Act to clarify existing privacy law and ensure that U.S. tech companies can compete overseas on a level playing field. Agility Systems
App47, Inc. Aptible Bugaboo Math Games CareSync Cathy Lane Studios Computer Ways, Inc. Concentric
Sky Dunn Training, Inc. FMS, Inc. Hadfield Jones Homnick Systems, Inc. InRule Technology Interatica
InterKnowlogy Ken Spencer, LLC Kidz Learn Applications Kiz Toys Maypop Designs Mayusha, LLC NeuEon
PKCLsoft PreEmptive Solutions PRIVO Sax.net Scott Adelman Apps, Inc. Shango SheerID StartDOT
Handwriting Technology Services Group The Happy Dandelion The Learning Station Thinkamingo, Inc.
TM Technologies ACT | The App Association Apple AT&T Brittenford Systems BSA | The Software
Alliance Carter-McGowan Services, LLC CenterPoint Solutions Cisco Cogent Company Conquest Tech
Service Corps Entertainment Software Association Gruene Technology Group Hewlett-Packard IBM
Interknowlogy KDM Consulting Kumo Technology ManyWorlds, Inc. Microsoft National Association of
Manufacturers NAJI Orrick Rackspace Tech Cumulus Telecommunications Industry Assoc. Verizon
Bryan Cunningham. Frequent writer for The Hill. “Measuring MLAT”. The Hill. June 19, 2015. http://thehill.com/blogs/congress-blog/foreign-policy/245454-measuring-mlat
Leaders in both political parties, with support from the U.S. Chamber of Commerce, the Center for
Democracy, and many leading U.S. Internet and other technology companies, have voiced the urgent need for MLAT reform. President Obama’s 2010 National Security Strategy cited the need for our law enforcement agencies to “cooperate effectively with foreign governments” in furtherance of our safety and security, in particular to counter cybersecurity threats. Former Attorney General Holder cited this presidential statement to support a significant budget increase request for Department of Justice MLAT processing, stating that, without MLAT reform “our relationships with our international law enforcement partners and U.S. Internet communication providers are at risk, and our national security and diplomatic efforts are threatened.”
Republican Sen. Orrin Hatch (Utah), with bipartisan support, introduced the Law Enforcement Access to
Data Stored Overseas (“LEADS”) Act, both this year and last, including MLAT reform procedures, in part to help protect U.S. Internet and other businesses from being trapped between inconsistent legal obligations in the U.S. and overseas, stating: “The way electronic data is used and stored globally has changed considerably [in recent decades]. . . . This presents unique challenges for a number of industries, who are often faced with the question of whose laws they must follow – American law or the laws where the electronic data is stored.”

(Jeff, CEO Peerstone Research, “The LEADS Act: A Transatlantic Olive Branch from the U.S. to
Europe Over Government Access to Data,” Feb 20, https://medium.com/@jeffgould/the-leads-act-atransatlantic-olive-branch-over-government-access-to-data-411fab0c8538, CMR)
The LEADS Act is broadly supported by U.S. high tech and media companies
, as well as by leading privacy advocates
. The government of Ireland and one of the leading advocates of data protection reform in the European Parliament, while not specifically endorsing the act, have submitted amicus briefs in support of Microsoft’s appeal. Surprisingly, among the few significant industry players yet to publicly endorse the LEADS Act are
Google, Facebook and Yahoo
. Perhaps they fear that the bill in its current form might encourage some foreign users in the belief that putting their data on foreign rather than U.S.-based cloud servers will protect them from the long arm of U.S. authorities. But there can be little doubt that these firms
share the same concerns about U.S. access to overseas data as Microsoft, and they may yet give it their full support
. Early indications are that the LEADS
Act
has a good chance of passing in the current session of Congress. It has strong support from both political parties and has so far not aroused any open opposition from the U.S. law enforcement community
.

(Neil, “Conservatives Press GOP to Restrict DOJ’s Foreign Cloud Snooping,” May 13, http://townhall.com/columnists/neilmccabe/2015/05/13/conservatives-press-gop-to-restrict-dojsforeign-cloud-snooping-n1997835/page/full, CMR)
An alliance of free-market conservatives is building support for a bill that would thwart
the
Obama administration
's bid to make foreign computers, servers and data farms subject to Justice Department search and seizure
.
The alliance stepped up its pressure on Capitol Hill with the release of its
May 1 “ coalition letter
” to Sen. Charles “Chuck” Grassley (R-Iowa) and Rep. Robert W. Goodlatte (R.-Va.), the two men who chair the judiciary committees in their chamber. The letter calls on the chairmen to move forward on the Law Enforcement Access to Data Stored Abroad Act. To put things in perspective, in 1995 the email service Hotmail.com was created by two Apple Computer exiles. In 1998, Microsoft paid $400 million for
Hotmail, which today is still the second largest email service in the world. Nine years before the founding of Hotmail, Congress passed the
Electronic Communications Privacy Act to protect email users and stored data from Watergate-style surveillance. But, in the archaic language, the bill left two gaping holes that the Justice Department is driving through with its modern surveillance truck. First, ECPA only protects emails less than 180 days old. At the time, nobody imagined that Americans would treat their email accounts as their virtual life dashboards with some keeping emails more than 10 years or 15 years. The second hole is that the ECPA does not recognize an expectation of privacy if an American uses a third-party email provider. Now, what was a leash on government intrusion, has become a license to snoop. Now, that snooping goes way, way beyond what email and computer storage meant to us in 1986.
The letter, signed by top conservatives
, such as Phil
Kerpin
, American Commitment; Allen B.
West
, National Center for Policy Analysis; Seton
Motley
, Less Government and Colin A.
Hanna
, Let Freedom Ring, points out
that the LEADS Act heads off a federal takeover of “the cloud,”
the au courant term for the worldwide sprawl of computer storage. What might have been dismissed as cyber-paranoria, became real when the
Justice Department demanded emails stored at Microsoft Ireland Operations Limited, a registered Irish business, owned by Microsoft.
Microsoft provided metadata to Justice, but refused to provide content because that would be a violation of Irish law, a law affirmed by
Ireland's high court in its Walsh v. National Irish Bank decision. In fact, the Irish government went so far as to file a motion in federal court asserting its sovereignty over facilities in Ireland. The motion, coaxed in diplomatic language, further points out that the United States could pursue that email content through the Irish courts with a high probability of success. But, this is not the road Justice is taking. Instead, DOJ continued to demand that Microsoft ignore the laws of its host countries and acknowledge that wherever it may roam, Johnny Law is sitting legal shot gun along for the ride. The coalition letter does not address the Microsoft case, but the more general implications to American businesses, if ECPA is not fixed. “The LEADS Act addresses these problems by amending ECPA to clarify that law enforcement may use a warrant to obtain electronically stored communications overseas if the account holder is a U.S. person,” the letter said. “This extends the traditional reach of a warrant beyond U.S. borders, but is appropriately responsive to the global nature of electronic data storage in the 21st Century,” it said. “The legislation provides that the U.S. law enforcement cannot require disclosure of data stored abroad if the data is not associated with a
U.S. person or if accessing that data would violate the laws of the country where it is stored. Instead, the U.S. must work with the host country to obtain the data.” As the LEADS Act makes it way through Congress, the alliance of conservatives pushing for its passage should be optimistic
. Not only are Americans much more concerned about federal surveillance than before Edward Snowden booked passage for Moscow, but they have a powerful champion. In 1986, freshman lawmaker Sen. Orrin G.
Hatch
(R.-Utah) voted for ECPA and now, the senator
is the Senate sponsor of LEADS
. Thirty years ago, Hatch was still on the margins, but now he is by any measure the most effective Republican in the Senate
.

(Arabinda, Adjunct Faculty, Department of Geo-Politics, Manipal University, India; Deputy
Director Centre for Peace and Development Studies; Project Taskforce Lead, Consortium for Countering the Financing of Terrorism (CCFT); and Editor, Counter Terrorist Trends and Analysis (CTTA), “Targeting
Terrorist Financing: International Cooperation and New Regimes,” pg 114-116, CMR)
The U nited
S tates is
also at the forefront in providing training and technical assistance to help vulnerable countries develop appropriate legal frameworks
, financial regulatory oversight systems, law enforcement capabilities, and judicial and prosecutorial processes
needed for an effective AML/CFT regime.'““
Washington has entered into numerous
mutual legal assistance treaties (
MLATs
), which provide for the exchange of financial info rmation and evidence in criminal and related matters especially in asset forfeiture proceedings
."” According to US officials,
Washington remains committed to leverage the comparative advantage of the numerous institutions and organizations
, drawing on what each does best, from setting standards to developing regional strategies to providing forums for training and education
.
Through the provision of training, equipment, and
other assistance, the U nited
S tates, along with a coalition of willing and able states and organizations, will enhance the ability of partners across the globe to attack and defeat terrorists, deny them funding and freedom of movement
.'“" In fact, the US efforts to combat terrorist financing may be considered the most successful part of the global war on terror
since September 2001.“ The United Kingdom, which has always been sensitive to terrorism, espe- cially because of its experience with the Irish Republican Army (IRA), was one of the first countries that incorporated the 1999 Terrorist Financing Convention in its domestic law.
This was done through the Terrorism Act 2000. The United Kingdom has created 21 specialist unit in its police force, the National Terrorist
Financial Investigation Unit (NTFIU) that employs individuals well versed in financial investigative techniques, and is one of the first countries to do so.'” The 2000 Terrorism Act provides for extra-territorial jurisdiction with regard to acts of financing that have been criminalized under the act. The US and UK leg- islations have become models for terrorist financing legislation because of the regulatory framework they envisage and their overarching reach across the public and private sector.”
The measures developed by the international community against terrorist financing are comprehensive
, encompassing all aspects of financial activity and involving participation by a very wide range of actors and agencies both in the public and the private sector at the international. regional and domestic levels. In a broader sense, these initiatives emphasize establishment of a legal framework and efficient and rapid dissemination of info rmation through legal mechanisms and mutual assistance programmes in order to help concerned agencies identify, disrupt and dismantle terrorist financing networks
. As the IMF has noted, the collection, analysis, and dissemination of financial info rmation is crucial to “disrupt, delay, interrupt, and defeat
. both terrorism
and terrorist finance.”'” lmportantly, it has been recognized that different nations adopt different anti-terrorist financing regimes in accordance with their differing legal traditions, constitutional requirements, systems of govemment and technological capabil- ities."5 This ensures that all the nations do not have to employ a unilateral “US- only” model for countering the financing of terrorism.'"’ Thus, various international and regional institutions and agencies engaged in a wide array of multilateral activities now collectively constitute a new interna- tional regime for countering the financing of terrorism.'” As Thomas Biersteker er al. put it, In many ways, cooperation against terrorist financing now constitutes a regime where the principles [widely held beliefs about the utility of follow- ing the movement of money]; norms [obligations arising under formal (UN) and informal (FATF) initiatives]; rules [the specific regulatory actions to be taken and best practices to be pursued]; and decision-making procedures [whether they are manifest in global, regional or specialist organizations] are institutionalized in multiple fora. Beneath this web of institutions are wide ranges of bilateral, trans-governmental networks on terrorist financing, which have also reinforced and supplemented the regime."3
This collection of new institutions
, new laws, and cooperation among states and between institutions is “an immense undertaking” and “no less than the military campaign”“” against terrorism
. Given these characterizations and the sheer breadth and depth of these new initiatives,
Steve Kiser argues, depicting the financial strategy, as a central component of the global war on terror
is not unreasonable.
'3”

"Signing of a Mutual Legal Assistance Treaty Between the United States and Kazakhstan," U.S. Department of State, February 20 th , 2015, http://www.state.gov/r/pa/prs/ps/2015/02/237732.htm
On February 20, 2015, Deputy Assistant Attorney General and
D epartment o f
J ustice
Counselor for International Affairs
Bruce C.
Swartz and Prosecutor General of the Republic of Kazakhstan
Askhat Daulbayev signed a Treaty on Mutual
Legal Assistance
in Criminal Matters. The signing
of this Treaty marks an important step forward
by the United States and
Kazakhstan to enhance law enforcement cooperation
and to protect the law-abiding citizens of both countries
The
Treaty provides a formal intergovernmental mechanism for the provision of evidence and other
forms of law enforcement assistance in criminal investigations, prosecutions, and related proceedings
. Under the Treaty, assistance can be provided in taking testimony of witnesses, releasing documents and records, locating and identifying persons or evidence, serving documents, executing requests for searches and seizures, transferring persons in custody for testimony or other purposes, tracing and forfeiting the proceeds of crime, and any other form of assistance not prohibited by the laws of the requested State
. Mutual legal assistance treaties are an excellent means for the United States to strengthen its ability to fight terrorism and transnational crime
. The United States has negotiated such treaties since the late 1970s and currently has over 70 in force. Following signature, this treaty will be transmitted to the U.S. Senate for advice and consent to ratification.