Legal arguments used in courts regarding territoriality and cross-border production orders
| DOI | 10.1177/2032284418801562 |
| Author | Paul de Hert,Cihan Parlar,Johannes Thumfart |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
| Subject Matter | Articles |
Article
Legal arguments used in
courts regarding territoriality
and cross-border production
orders: From Yahoo Belgium
to Microsoft Ireland
Paul de Hert
Vrije Universiteit Brussel (LSTS), Belgium; the University of Tilburg (TILT), the Netherlands
Cihan Parlar
FIRST PRIVACY GmbH, Germany; Vrije Universiteit Brussel, Belgium
Johannes Thumfart
Vrije Universiteit Brussel (LSTS), Belgium
Abstract
This contribution reflects on recent cases involving cross-border data production orders such as
Yahoo Belgium,Skype Belgium and Microsoft Ireland. Cross-border data production orders are found
to generally involve conflicts regarding sovereignty and enforcement jurisdiction and to frequently
include voluntary cooperation of companies for which the legal framework is lacking (Introduc-
tion). The Lotus principle, which recognizes a broad extraterritorial jurisdiction to prescribe and
limits extraterritorial enforcement jurisdiction, is reconsidered concerning those issues (see the
‘International law pragmatism for jurisdiction to prescribe, but not for jurisdiction to enforce’
section) and the use of mutual legal assistances, which should be the rule, is discussed with four
caveats (see the ‘Four caveats to territorial sovereignty and the need for MLAs: Unclarities and
politics’ section). Twelve typical arguments are identified, which are employed in courtrooms
when cross-border data production orders are discussed, for example, arguments regarding
territorial sovereignty, the location of servers, the virtual presence of businesses via the Internet
or the nationality of the data subject (see the ‘Arguments in courtrooms in favour or against
informal-based cross-border investigations’ section). Subsequently, from fourth to seventh sec-
tions, those arguments are investigated regarding their context in the cases Yahoo!Belgium (2007–
2015), Skype Belgium (2012–2017), Microsoft Ireland (2013–2018) and Google in re Search Warrant
Corresponding author:
Cihan Parlar, FIRST PRIVACY GmbH, Konsul-Smidt-Straße 88, 28217 Bremen, Germany.
E-mail: mail@parlar.co
New Journal of European Criminal Law
2018, Vol. 9(3) 326–352
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/2032284418801562
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(2017). Finally, a first step to evaluate and test the strength of those arguments is undertaken (see
the ‘Assessing the arguments: From logically weak, to unpractical to law enforcement utilitarianism
(give us everything)’ section).
Keywords
Extraterritorial law enforcement, courts, arguments, mutual legal assistance in criminal matters,
consent in international law
Introduction – Cross-border law enforcement ‘questions’:
Voluntary cooperation?
Because electronic communication ma kes up a larger and larger part of our li feworld, and
crime is, of course, a part of our lifeworld as well, more and more crimes are committed
online or are at least somehow facilitated byacomputingdevicesuchasamobilephone,
tablet or PC. Therefore, today almost all criminal investigations involve electronic evidence.
1
This creates a number of fundamental problems, enforcement and sovereignty among them.
As Woods puts it:
The fact is that the vast majority of the world’s Internet users are outside the United States, but
they are using services headquartered in the United States. The result is that digital criminal
evidence – evidenc e that would historically have been physically located i n the same jurisdiction
as the crime – is now very often stored in the cloud, and often with a service provider that is
foreign.
2
While a state’s jurisdiction is limited to a certain territory, data traffic via the Internet is a priori
designed to ignore borders. And the rise of cloud computing has led to a significant increase in
cross-border data traffic. Between 2005 and 2012 alone, during the dawn of cloud computing,
cross-border Internet traffic grew 18-fold.
3
The clash between ubiquitous data and the territorial
limits of state sovereignty is evident
4
and forces prosecutors and other law enforcement agencies,
together with courts, to make delicate decisions.
When law enforcement agencies approach providers to produce data, the respective service
provider might be established abroad or storing the data sought after outside the investigating
state’s territory. Usually, this extraterritorial aspect should require the use of the official channel of
investigation, mutual legal assistance (MLA). This procedure, however, is regarded as being
1. See on the digitization of criminal evidence, A.K. Woods, ‘Mutual Legal Assistance in the Digital Age’, in D.C. Gray
and S. Henderson, eds., The Cambridge Handbook on Surveillance (New York: Cambridge University Press, 2017), pp.
660–662. See also, S.W. Brenner, Cybercrime: Criminal Threats from Cyberspace. 1st ed. (Praeger, 2010), p. 37.
2. Op. cit., p. 661.
3. McKinsey Global Institute, Global flows in a digital age: How trade, finance, people, and data connect the world
economy (April 2014). Available at: https://www.mckinsey.com/*/media/mckinsey/featured%20insights/Globaliza
tion/Global%20flows%20in%20a%20digital%20age/MGI%20Global%20flows%20in%20a%20digial%20age%20
Executive%20summary.ashx (accessed 30 July 2018).
4. M. Hildebrandt, ‘Extraterritorial Jurisdiction to Enforce in Cyberspace? Bodin, Schmitt, Grotius in Cyberspace’,
University of Toronto Law Journal 63(2) (Spring 2013), pp. 196–224.
de Hert et al. 327
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