Protection of the Right to Privacy in States’ Unilateral Access to Extraterritorially Located Data in Criminal Investigations

Abstract

The process of striving to enhance law enforcement's access to digital data held extraterritorially while finding the right balance in fundamental-rights protection began with establishing the Convention on Cybercrime. Evolving risks of evidence being lost, intimately connected with the urgency of collecting digital data, impose a constant need for new, more efficient models for data acquisition and access. The article examines the set of mechanisms connected with states gaining access unilaterally (without needing foreign states’ assistance) to extraterritorially located data from the perspective of protecting suspects' privacy and family-life rights. In light of the fact that one virtually steps onto foreign ground to gain such access, most states have refrained from regulating it domestically and have officially addressed the issue by means of international co-operation instruments created for situations significantly different from this, yet investigators in circumstances such as a domestic criminal investigation wherein the only connection to the other state lies in an e-mail message sent via a foreign service provider ought to avoid resorting to extremely burdensome mutual legal-assistance instruments. At the same time, sufficient domestic guarantees of fundamental-rights protection should be in place.

The author proposes a model for unilaterally accessing extraterritorial data that considers the rights of individuals involved in criminal procedure and, alongside these, state interests in unilaterally accessing and receiving extraterritorially held data.