The Internet and the Legitimacy of Remote Cross-Border Searches

TLDR

Remote cross‑border searches involve officials in one country accessing data on computers in another, a tool increasingly vital for combating cybercrime yet raising sovereignty concerns. The essay argues that such searches are consistent with international law enforcement jurisdiction, though limits cannot be inferred solely from territorial norms. Limits will emerge from a dynamic process of cross‑border searches and retaliatory adjustments as states adapt to the evolving internet, linking technological change to jurisdictional evolution.

Abstract

A remote cross-border search takes place when persons in one nation use computer networks to explore data on computers in another nation. It is increasingly clear, especially after the September attack, that remote-cross border searches by public officials will be an important tool in the fight against cybercrime and cyberterrorism. Many commentators argue that cross-border searches violate the territorial sovereignty of the country where the data is located. This essay argues that such searches are consistent with international law principles of enforcement jurisdiction. It does not argue that there will be no limits on such searches, but rather that such limits are not deducible from norms of territorialism. The limits on remote cross-border searches will emerge from a messy process of cross-border search and retaliation, as nations adjust themselves to the changed circumstances of the Internet. In addition to arguing in support of these conclusions, the essay tries to shed light on the relationship between technological change and the evolution of jurisdictional concepts.