Transnational Criminal Investigations in Cyberspace: Challenges to National Sovereignty

In: Max Planck Yearbook of United Nations Law Online
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The internet has become a major place of business for criminals. Due to the properties of cyberspace, crime committed on or by means of the internet is typically transnational in nature. This poses a significant obstacle for law enforcement authorities. As a rule, transnational exercise of enforcement jurisdiction traditionally constitutes a violation of another State’s territorial sovereignty. But do the same rules apply in the ‘global cyberspace?’

This article examines the applicability of the principle of territorial sovereignty in cyberspace. It rejects solutions that treat cyberspace as a common good and argues that transborder online criminal investigations infringe the territorial sovereignty of the State where the accessed data are located. Consequently, the analysis assesses justifications for such infringements on the basis of international treaty law, customary international law, and circumstances precluding wrongfulness. For the most intricate cases of loss of location, the analysis develops a carefully delimited, new solution based on the principle of necessity. The article also sheds light on future perspectives and advocates for a ‘cooperative cyberspace’ of investigators to counterbalance the unfettered global cyberspace of perpetrators.

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