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Summary - cybercrime lecture 5 (620068-M-6)
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Lecture 5 Procedural Law (2)Seitz, transborder Search: A new perspective in law enforcement?
The article tries to find an answer to the question of when such a transborder search is currently
admissible under public international law. It analyzes the first criminal case worldwide in which a
law enforcement agency used this method to access and download evidence stored on a server
in a foreign country. It concludes that, up to now, a transborder search to access protected data
is in principle inadmissible, provided that it doesn’t concern an exception.
Gorshkov-Ivanov Case: First worldwide case in which transborder search has been employed by
the responsible prosecution authorities.
Transborder search: a search in which the Internet offers the opportunity to take unilateral
measures to access the data without asking permission of the state in which the data are stored.
However, what about the principle of territoriality? If transborder searches qualify as an
infringement of such, the course of action undertaken by prosecutors would be improper,
and in case of a violation. Would render the evidence inadmissible.
The usual way to go about this is through traditional letters rogatories, however,
these can take long to process, which in regard to the internet, would be
counterproductive seeing as time sensitivity is often of the essence.
Legal permissibility of transborder searches
Differentiate whether the transborder search in the third country aims at the
retrieval of generally accessible data or of data that are not freely accessible.
Generally accessible data: not subject to any special pre-conditions.
The decisive criterion cannot be the place of the offense but only
the intensity with which the legal framework of the country from
which the data are retrieved is affected (Robert Jofer).
Was there an intrusion into the individual rights of a foreign
citizen as a result from the retrieval of generally accessible data?
→ no, the prosecutor did not take part in any acts of deception
regarding his role.
Anonymity: If access is gained to public and anonymous internet
offerings, the person retrieving data does not arrogate sovereign
power (Michael Germann).
Dogmatic perspective: answer two questions:
Is the principle of territoriality affected by the retrieval of
generally accessible data?
And if so, does international law permit such a measure?
A transborder search is permissible as long as the access
is to generally accessible data.
Not freely accessible data: e.g., protected with a password
Predominant view holds that a transborder search with respect to
protected data is impermissible because of the resulting violation
of the principle of territoriality if no explicit consent is expressed
by the affected state.
Two modifications are being discussed:
An exception is considered for the case in which the
person subject to the transborder search agrees to the
data retrieval.
An exception is considered for ‘good faith’ cases, in which
either the prosecutor erroneously assumed the data to be
located in its own sovereign territory, or in which the
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