Transborder Search: A New Perspective in Law Enforcement?

Article excerpt

I.   TRANSBORDER SEARCH AND THE GORSHKOV-IVANOV CASE
II.  LEGAL PERMISSIBILITY OF "TRANSBORDER SEARCHES"
     A. TRANSBORDER SEARCHES IN THE CASE OF GENERALLY ACCESSIBLE DATA
     B. TRANSBORDER SEARCHES IN THE CASE OF NOT FREELY ACCESSIBLE DATA
       1. PREVALENT VIEW
       2. OPPOSITE VIEW
       3. OWN PERSPECTIVE
III. FINAL REMARKS AND CONCLUSIONS

Think about the following situation: you are a German police officer investigating a serious crime. Your suspect is an American citizen using a Yahoo-e-mail-account to communicate with his criminal partners. Now you are informed that critical evidence (an e-mail) was sent to the suspect's e-mail-account and is currently stored on Yahoo's e-mail-server in New York. It is Sunday morning and there are indications that the e-mail will be deleted by the suspect in a few hours. Traditional methods of gaining access to the vital evidence, like letters rogatory, might take too long. What do you do? Is it permissible for you as a German police officer to hack the suspect's e-mail-account and to download the incriminating e-mail from the server located in New York?

This Article tries to find an answer to the question of when such a "transborder search" is currently admissible under public international law. It analyses the first (at least publicly known) criminal case worldwide in which a law enforcement agency (the United States Federal Bureau of Investigation) used this method to access and download evidence stored on server in a foreign country. After analysing the current legal situation the author comes to the conclusion that up to now a transborder search to access protected data is in principle inadmissible. However, there is an exception when the data are stored in the United States and extraordinary circumstances prevail. Therefore, the author's answer regarding the question above is "yes".

I. TRANSBORDER SEARCH AND THE GORSHKOV-IVANOV CASE

The Internet confronts prosecuting authorities with new tasks and opportunities. In transnational prosecutions, it is more and more frequently the case that the relevant data for local preliminary investigations and criminal proceedings are stored on foreign servers. As a result, national prosecuting authorities are initially barred from direct physical access to these data. (1) The common slogan of the "unlimited Internet" conceals a significant problem confronting prosecuting authorities; thus far, there have only been rudimentary attempts at adequately resolving this difficulty. (2) An illustrative example of the problems associated with transnational prosecution of offenses on the Internet is a case which has recently been heard in the United States and which serves as the starting point for this essay: the Gorshkov-Ivanov case. The circumstances of the case were the following.

Around the end of 1999, certain unauthorized persons abused the Internet to hack into the networks of twenty United States businesses, including banks, credit card institutions, and Internet service providers. The unknown offenders gained access to credit card numbers and other information about financial transactions and used these to commit fraud. In February 2000, one of the affected firms, a credit report agency, received an e-mail stating that the e mail sender had uncovered the "root password" which would give him unrestricted access to the firm's network. The e-mail sender threatened to delete all data from all computers connected to the network unless the firm hired him as a security consultant. The Federal Bureau of Investigation ("FBI"), which had been called upon to investigate, detected that the e-mail had been sent from an e-mail account provided by a Washington-based e-mail service provider whose network the offenders had also infiltrated. It turned out that the offenders had used two computers located in Chelyabinsk (Russia). The owners of the two computers were the Russian citizens Ivanov and Gorshkov. …