Transborder access and territorial sovereignty

The increasing sophistication of malicious cyber activities and the associated challenges with addressing these threats continue to underline the urgency of effective investigative measures for law enforcement authorities. This is especially relevant in investigations where the necessary data to be obtained are stored in a foreign jurisdiction, and access to that data may require additional legal authority. Given that traditional mutual legal assistance treaties are not entirely suitable for the volatile nature of electronic evidence, options for remotely accessing transborder data have been proposed both by nations and international organisations. Despite having been discussed by scholars and policy-makers for almost two decades, the legitimacy of such transborder access has not been readily accepted. In this context, interpretations that pertain both to the scope of jurisdiction to enforce and the principle of territorial sovereignty are particularly fragmented. This article compares the different approaches proposed in academic literature with developments in State practice and international organisations. The article concludes that transborder access can be generally seen as an extraterritorial application of jurisdiction to enforce and therefore, in order to avoid breaching the other State's sovereignty, such investigative activities should have explicit legal grounds.