TRANSBORDER SEARCH: A NEW PERSPECTIVE IN LAW ENFORCEMENT?

Abstract

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 email- 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-mailfrom 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."