Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web

62 Pages Posted: 7 Mar 2016 Last revised: 22 Jun 2017

See all articles by Ahmed Ghappour

Ahmed Ghappour

Boston University - School of Law

Date Written: March 5, 2016


The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote “searches” and “seizures.” The result may well be the greatest extraterritorial expansion of enforcement jurisdiction in U.S. law enforcement history.

This Article examines how the government’s use of hacking tools on the dark web profoundly disrupts the legal architecture on which cross-border criminal investigations rest. These overseas cyberoperations raise increasingly difficult questions regarding who may authorize these activities, where they may be deployed, and against whom they may lawfully be executed. The rules of criminal procedure fail to regulate law enforcement hacking because they allow these critical decisions to be made by rank-and-file officials despite potentially disruptive foreign relations implications. This Article outlines a regulatory framework that reallocates decisionmaking to the institutional actors who are best suited to determine U.S. foreign policy and avoids sacrificing law enforcement’s ability to identify and locate criminal suspects who have taken cover on the dark web.

Keywords: international law, criminal procedure, network investigative techniques, foreign relations, sovereignty, espionage, cyber attack, cyber crime, cyberlaw, privacy, surveillance, encryption, jurisdiction, law enforcement, going dark, dark web, hacking

Suggested Citation

Ghappour, Ahmed, Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web (March 5, 2016). Stanford Law Review, Vol. 69, April 2017, UC Hastings Research Paper No. 170, Available at SSRN: or

Ahmed Ghappour (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-358-7340 (Phone)

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