Are Dutch law enforcement officers allowed to log into the Gmail-account of a suspect and check their e-mail for evidence gathering purposes? This question has captivated me for the last 1,5 years. In 2011 I argued that hacking is not a legitimate investigatory method in the Netherlands. That might change soon, because the Dutch Minister of Safety and Justice plans to propose a bill which makes that possible (see also my earlier blog post on cross-border remote searches). However, interesting questions remain in relation to international criminal law and remote searches.
After the extensive study of Dutch parliamentary documents in relation to the investigatory method of a “network search”, I concluded in a new article (.pdf in Dutch) I wrote together with Charlotte Conings of the KU Leuven, that online investigatory methods can only be used on “computers in Dutch territories”. The exception to this rule is when officers are (a) “in good faith” that the computer resides on Dutch territory, (b) they have permission from another state to execute their investigatory methods on a computer in their territory, or (c) they operate on the basis of a treaty. Based on literature, most legal scholars affirm the general rule that secretly gathering evidence from computers in the territory of another state is in violation of international law.
The problem is that the “computer orientated jurisdiction rule” described above is hard to work with in practice. Especially due to cloud computing techniques, by way of which fragmented data can reside on many different servers in different countries, making it is increasingly hard to pinpoint the location of data on a server. Some suggest that because of this “loss of location” of data, law enforcement authorities are increasingly left in the dark as to which state “controls the data” and which state to ask for permission. As a consequence, they resort to gathering evidence remotely - via the Internet - under their own national procedural rules. The influence of cloud computing and criminal investigations is described in this interesting WODC-report (.pdf in Dutch. English summary available here) released two weeks ago.
In my opinion, it is quite clear in many cases which jurisdiction and thus which procedural rules apply to the majority of electronic communication services that make use of cloud computing. The reason for this is that many popular “cloud services” are US electronic communication service providers. As described in their law enforcement guideline, Google for example provides user data under specific conditions based on US law. With regard to data requests from “foreign law enforcement authorities” they explain that: “On a voluntary basis, we may provide user data in response to valid legal process from non-U.S. government agencies, if those requests are consistent with international norms, U.S. law, Google's policies and the law of the requesting country.” I wonder how they deal with inconsistencies between the different norms prescribed by law.
The actual problem is that law enforcement authorities would much rather access the accounts directly, under their own rules, rather than waiting for Google to reply and having the uncertainty of whether they will actually provide the data.
Towards new jurisdictional rules?
In our new article, Charlotte and I analyzed the interesting “pragmatic approach” of Belgium towards online jurisdictional issues and investigatory methods. Under specific conditions, they will allow a remote search of connected computers, such as servers from webmail and online payment services, even if those servers are possibly situated in a different territory. We believe this pragmatic approach is interesting and maybe even desirable under certain conditions, as long as the investigatory methods are used on citizens and persons in the states own territory. If we would allow remote searches of the personal online accounts of foreigners, states would impose their own national rules on foreign nationals which in turn would create legal uncertainty for people about which procedural rules apply. Based on the reciprocity principle, states could do the same in our territory. This pragmatic approach is not ideal and does not solve the problem that the company who possesses the data may simply regard the unauthorized access of foreign authorities as a crime and treat it as such. In an ideal world, states would agree with one another under which conditions data can be gathered remotely over the Internet, but I doubt if that’s possible. The debate about online (enforcement) jurisdiction is far from over.