E-Thesis 132 views
Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases / DANIEL SOPER
Swansea University Author: DANIEL SOPER
DOI (Published version): 10.23889/SUthesis.70765
Abstract
Digital technologies have changed both the nature of crime and evidence. Cybercrime is growing rapidly, and additionally, much of daily life for people, governments, and businesses now takes place digitally. Cyberspace has developed from an ideological grounding of borderlessness, entirely at odds w...
| Published: |
Swansea
2025
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| Institution: | Swansea University |
| Degree level: | Doctoral |
| Degree name: | Ph.D |
| Supervisor: | Quane, Helen ; Macdonald, Stuart ; Bishop, Patrick |
| URI: | https://cronfa.swan.ac.uk/Record/cronfa70765 |
| Abstract: |
Digital technologies have changed both the nature of crime and evidence. Cybercrime is growing rapidly, and additionally, much of daily life for people, governments, and businesses now takes place digitally. Cyberspace has developed from an ideological grounding of borderlessness, entirely at odds with the traditional notions of territoriality. Its exponential growth has concurrently increased the quantity of digital data held outside of a state’s jurisdiction. This is set against a cybercrime scene whereby bad actors can digitally reach across borders to commit crimes, leaving little for law enforcement to investigate without an extraterritorial aspect being required. Current formal routes available to law enforcement for accessing digital evidence across borders have involved traditional, non-digital mechanisms such as Mutual legal Assistance Treaties or Letters Rogatory. These were never designed to manage the scale and complexity of digital investigations and are inadequate for the task. At the time of writing, no fully international legal instrument has been agreed to regulate this activity. In the absence of effective e-evidence sharing, states are developing their own procedures to mitigate against this failing. These include requesting data directly from tech companies and other non-state actors (NSAs), or even directly accessing the information without the authorisation or knowledge of the data controller or data subject. This doctoral research investigates the jurisdictional, legal and operational issues encountered by law enforcement when seeking digital evidence, examines the functions of non-state actors as transnational data controllers, and considers the implications for data subjects affected by these activities. It identifies all the challenges posed by law enforcement accessing digital evidence across borders and explains their impact on the rule of law and human rights. It argues that only a comprehensive, international regulatory framework can balance effective law enforcement, the protection of fundamental rights in cyberspace and support the rule of law at the international and domestic levels. Further, the research argues that when regulated in the suggested manner, these often-competing imperatives can become mutually supportive. |
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| Keywords: |
International law, International jurisdiction, Digital evidence, Regulatory framework |
| College: |
Faculty of Humanities and Social Sciences |
| Funders: |
QuinetiQ |