EXTRATERRITORIAL JURISDICTION AND ELECTRONIC EVIDENCE

A NORMATIVE ASSESSMENT OF NEW DIRECT COOPERATION MECHANISMS WITH SERVICE PROVIDERS

Abstract

Transnational criminality and deterritorialized data challenges traditional territorial borders, as electronic communications, cloud storage, and platform-based services enable evidence to be created in one State, stored in another, and controlled by service providers in a third. While criminal justice traditionally grounds enforcement jurisdiction to territorial sovereignty, communications and information technology advances, a significant share of criminal proceedings now depends on data that is fluid - transnational, and de-linked from a stable geographic location. As a result, extraterritoriality in criminal procedure can no longer be regarded as exceptional but instead constitutes a structural feature of criminal justice. Investigative powers involving coercive measures - such as data searches, seizures, production and preservation orders, are increasingly exercised in transnational contexts, thereby exposing public authorities and private actors alike to overlap and potentially concurring public functions. This new reality has been addressed through the adoption of new cooperation instruments, which challenge the traditional territorial constraints of procedural powers. This study employs a normative assessment of extraterritoriality through a two-tiered analytical framework. The first part examines extraterritorial jurisdiction in criminal law enshrined in the current legal doctrine debate concerning sovereignty, extended scope of jurisdictions, and inherent nature of electronic evidence. The second part assesses how extraterritoriality is configured within two selected frameworks, concurrent to each other: (a)Council of Europe’s Budapest Convention on Cybercrime, and its Second Protocol; and (b) European Union’s Regulation for the European Production Orders and European Preservation Orders. While both institute investigative powers across territorial borders, they are asymmetric with regard to the powers extended to third parties. We argue that these cooperation mechanisms reflect a model of limited extraterritorial jurisdiction, where the need for efficient investigative powers is weighed against the normative constraints embedded in territorial sovereignty.