By Devlin Barrett in Washington and Julian E. Barnes and Valentina Pop in Brussels 

European counterterrorism officials say American laws and corporate policies are hampering their efforts to prevent the next attack, because legal procedures for getting international evidence from U.S.-based social-media firms are dangerously outdated.

European police officials who face a lengthy process to get data from companies such as Facebook, Twitter, YouTube and WhatsApp want to make American technology firms more responsive to overseas requests.

An online posting just days after the Paris attacks in November made clear how acute those tensions are. In it, a suspected Islamic State supporter boasted that a similar attack would occur the following Sunday in Brussels, people familiar with the incident said.

But when Belgian police sought to find out who was behind the account, the unidentified U.S. firm in question decided it would provide the subscriber data only if the company could notify the suspect of the search and give him the contact information of the police official involved.

Belgian officials resisted that demand, fearing it could compromise the investigation and potentially endanger the police official, according to officials familiar with the discussions. The fight became tense enough that the U.S. Justice Department had to weigh in. That led to what one official called "a long discussion" that ultimately persuaded the company to give the Belgians the information.

On Nov. 21, just over a week after the Paris killings, Belgium raised its security alert to the highest level and warned of an imminent threat, closing the subway system and schools and canceling events. Belgian officials wouldn't say whether the online posting influenced the four-day lockdown.

With domestic investigations, American companies are required to cooperate with U.S. court orders to comply with such requests. But in many cases, U.S. law expressly forbids companies to provide intercepted communications to foreign police officials, unless it is through a diplomatic review process. People on all sides agree any significant change for European access would have to come by changing U.S. law.

In the wake of the Paris and Brussels attacks, "people are pretty quick to point to the intelligence failures between France and Belgium, but in fact there's a very good chance there was information they couldn't get, " said Terry Cunningham, president of the International Association of Chiefs of Police, which has pressed Congress on the issue. Other officials say leads in European terror cases can languish for as much as a year.

Even when European police believe suspects are plotting a terrorist attack on European soil, they can't get access to the suspects' real-time Internet conversations on American-owned social-media sites. Under U.S. law, authorities can't conduct a legally valid intercept of communications if the suspected activity doesn't involve American interests.

In other words, if a terror plot doesn't potentially threaten Americans in some way, European officials can't get legal authority to monitor the suspects' communications on an American social-media site.

Many U.S. Internet companies agree there is a problem. But they say their options are limited under current law.

A spokeswoman for Facebook, which also owns WhatsApp, said the legal process for international evidence requests can be "slow and cumbersome, " adding that the firm is "actively pushing the U.S. and other governments for reforms."

Meanwhile, she said Facebook has "well-developed processes" for responding to international law-enforcement requests, including those that don't require a monthslong diplomatic review process. Emergency requests get priority, she added, and the company is often able to respond within hours or, if necessary, even minutes.

"Our legal and safety teams worked around the clock to respond to law-enforcement requests following the recent terrorist attacks," she said.

A spokeswoman for Google, which owns YouTube, said it responds to valid legal requests for user data from abroad "when they are consistent with the laws of the requesting country and the U.S., our policies, and international norms," a position echoed by Twitter.

Beyond U.S. legal restrictions, officials at social-media companies say a number of factors can complicate such requests. Some foreign requests may fall short of generally accepted legal practices in the U.S., they say, and sometimes investigators are just very unfamiliar with the proper department to contact at a particular company.

But Belgian and other European officials say American Internet companies could be doing more, such as providing basic customer details in emergency situations.

European investigators say the difficulty in getting timely information about suspects not only hampered European police in the lead-up to the March Brussels attacks, but is also hindering the current investigation of those attacks.

Koen Geens, Belgium's justice minister, said the problem needs to be urgently addressed. "The level of cooperation strongly differs from provider to provider, but generally it is largely unsatisfactory and it endangers investigations and, by consequence, people's security," he said.

Many complaints focus on a diplomatic tool called Mutual Legal Assistance Treaties, or MLATs, which guide the exchange of evidence in criminal matters between the U.S. and other countries, including requests put to Internet companies. Because of legal and bureaucratic steps, it can take nearly a year under an MLAT for a European detective to obtain evidence.

By the time the search is approved, European officials said, the critical information has often been deleted, because many U.S. companies retain it for only a limited period. "It takes so long, by the time it's approved there's no data left," said one Belgian official.

American police agencies are engaged in their own struggle with Silicon Valley over issues of privacy and security, but the international dimension adds another layer of tension. As the European complaints illustrate, technology and terrorism are entirely international, adding to the challenges of officials limited by borders.

The growing use of encryption, for example, increasingly means that an in-country wiretap may be useless because the only unencrypted version of a conversation between European suspects may reside in a computer server on U.S. soil.

Some U.S. law-enforcement officials see merit in the European complaints. But they also say Europe sends mixed signals when it comes to privacy: On the one hand, European law-enforcement officials demand firms provide quicker access to suspects' information, and retain that data longer; on the other, European civil rights authorities insist on concepts such as "the right to be forgotten," which allows for some Internet data on individuals to disappear if it is deemed an infringement on privacy.

European law-enforcement officials said they are sensitive to accusations that they are blaming U.S. companies for their own failures. But they said they had been pushing for policy changes since well before the Paris and Brussels attacks.

Alejandro Mayorkas, U.S. deputy secretary of the homeland security, said the MLAT system is under review. "The MLATs are unworkable given the customary time frame -- sometimes months," he said in an interview.

Even with a law change, though, specific agreements would likely have to be negotiated with numerous countries. The Justice Department recently struck a deal to speed up the process for one country, the U.K., but that change still requires congressional approval.

Meanwhile, European law-enforcement agencies' demands are growing. Since 2000, according to the Justice Department, the MLAT requests from foreign countries for electronic evidence has risen 10-fold.

--Matthias Verbergt in Stockholm and Anton Troianovski in Berlin contributed to this article.

 

(END) Dow Jones Newswires

May 01, 2016 05:44 ET (09:44 GMT)

Copyright (c) 2016 Dow Jones & Company, Inc.
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