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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

  • E-Thesis – open access under embargo until: 22nd October 2030

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...

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Published: Swansea 2025
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
first_indexed 2025-10-24T07:55:25Z
last_indexed 2025-10-25T06:48:06Z
id cronfa70765
recordtype RisThesis
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spelling 2025-10-24T09:05:29.0940597 v2 70765 2025-10-24 Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases 5eb09316d985989382d4f1f6556d82d4 DANIEL SOPER DANIEL SOPER true false 2025-10-24 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. E-Thesis Swansea International law, International jurisdiction, Digital evidence, Regulatory framework 22 10 2025 2025-10-22 10.23889/SUthesis.70765 COLLEGE NANME COLLEGE CODE Swansea University Quane, Helen ; Macdonald, Stuart ; Bishop, Patrick Doctoral Ph.D QuinetiQ QuinetiQ 2025-10-24T09:05:29.0940597 2025-10-24T08:51:19.8117319 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law DANIEL SOPER 1 Under embargo Under embargo 2025-10-24T09:02:54.4729098 Output 2675584 application/pdf E-Thesis – open access true 2030-10-22T00:00:00.0000000 Copyright: The Author, Daniel Soper, 2025. Licensed under a Creative Commons Attribution-Non-Commercial (CC-BY-NC) license. Third party content is excluded for use under the license terms. true eng
title Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
spellingShingle Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
DANIEL SOPER
title_short Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
title_full Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
title_fullStr Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
title_full_unstemmed Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
title_sort Respecting Human Rights and the Rule of Law in Cyberspace; The Challenges Posed by Transborder Access to Digital Data in Criminal Cases
author_id_str_mv 5eb09316d985989382d4f1f6556d82d4
author_id_fullname_str_mv 5eb09316d985989382d4f1f6556d82d4_***_DANIEL SOPER
author DANIEL SOPER
author2 DANIEL SOPER
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institution Swansea University
doi_str_mv 10.23889/SUthesis.70765
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
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description 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.
published_date 2025-10-22T05:25:46Z
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