Chasing Bits Across Borders

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework for evaluating the legality of cross-border searches, both as a matter of international law and as a matter of U.S. law. The Article argues that remote cross-border searches are problematic as a matter of international law, and that U.S. adoption of bilateral or multilateral agreements authorizing remote-cross border searches on foreign law standards lower than those of the Fourth Amendment would be problematic as a matter of U.S. constitutional law. The Article also situates the remote cross-border search issue within the context of the larger theoretical debate over the power of geographically based sovereigns to exercise jurisdiction over internet activities. That debate ordinarily focuses on a sovereign\u27s jurisdiction to prescribe legal rules governing internet conduct; by broadening the inquiry to focus on a sovereign\u27s enforcement jurisdiction, a study of remote cross-border searches highlights certain normative bases for refining our understanding of how principles of territorial sovereignty apply in the internet context