Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the 'Next Frontier'?

Forthcoming, Vol. 54 Canadian Yearbook of International Law

51 Pages Posted: 15 Mar 2017 Last revised: 12 Apr 2017

Robert J. Currie

Dalhousie University - Schulich School of Law

Date Written: March 15, 2017

Abstract

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and potentially resolved—via examination through the lens of the public international law of jurisdiction, and specifically the prohibition of extraterritorial enforcement jurisdiction. Analysis of state practice reveals that unsanctioned cross-border evidence gathering is viewed by states as an intrusion on territorial sovereignty, engaging the prohibition, and that this view properly extends to the kind of state activity dealt with in the Microsoft case.

Keywords: cybercrime, jurisdiction, electronic evidence, international law

Suggested Citation

Currie, Robert J., Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the 'Next Frontier'? (March 15, 2017). Forthcoming, Vol. 54 Canadian Yearbook of International Law. Available at SSRN: https://ssrn.com/abstract=2933511 or http://dx.doi.org/10.2139/ssrn.2933511

Robert J. Currie (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia B3H 4H9
Canada

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