
Contents
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I. Introduction I. Introduction
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II. Cyberspace and Territorial Jurisdiction II. Cyberspace and Territorial Jurisdiction
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III. The Phenomenon of Cloud Computing III. The Phenomenon of Cloud Computing
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III.1. The Notion of ‘the Cloud’ III.1. The Notion of ‘the Cloud’
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III.2. The Blurring of Online and Offline Criminality III.2. The Blurring of Online and Offline Criminality
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III.3. The Jurisdictional Impacts of Cloud Computing III.3. The Jurisdictional Impacts of Cloud Computing
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IV. The Problem of Loss of (Knowledge of) Location IV. The Problem of Loss of (Knowledge of) Location
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IV.1. Jurisdiction and the Budapest Convention IV.1. Jurisdiction and the Budapest Convention
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IV.2. Article 32 of the Budapest Convention: The Narrow Territorial Exception IV.2. Article 32 of the Budapest Convention: The Narrow Territorial Exception
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IV.3. Extending Unilateral Trans-Border Access IV.3. Extending Unilateral Trans-Border Access
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V. Unilateral Trans-Border Activity Where Location of Data Is Known V. Unilateral Trans-Border Activity Where Location of Data Is Known
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V.1. Using Production Orders in Extraterritorial Settings V.1. Using Production Orders in Extraterritorial Settings
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VI. Recent Cases VI. Recent Cases
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VI.1. The Belgian Yahoo! Case (2013–15) VI.1. The Belgian Yahoo! Case (2013–15)
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VI.2. The Microsoft Warrant Case: Court of Appeals Decision VI.2. The Microsoft Warrant Case: Court of Appeals Decision
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VI.3. Microsoft Warrant Case in the Supreme Court VI.3. Microsoft Warrant Case in the Supreme Court
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VII. Conclusion VII. Conclusion
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16 Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality
Get accessStephen Allen is a Senior Lecturer in Law at Queen Mary, University of London and a barrister with a door tenancy at 5 Essex Court Chambers, London. His publications include The Chagos Islanders and International Law (Hart, 2014) and Title to Territory in International Law: A Temporal Analysis (Ashgate, 2003, with Joshua Castellino). He has jointly edited several books including Fifty Years of the British Indian Ocean Territory: Legal Perspectives (Springer, 2018); Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011); and The Rights of Indigenous Peoples in Marine Areas (Hart, forthcoming).
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Published:04 October 2019
Cite
Abstract
This chapter addresses how cross-border data storage by way of Cloud Computing and related criminal activities have become a major problem for criminal justice authorities. Since these authorities remain beholden to the territoriality principle and cannot search unilaterally for data located within another state’s territory, the dramatic growth in trans-border criminality means that this territorial limitation now risks undermining the extent to which individual states are able to satisfy their positive obligation to maintain the integrity of their criminal justice systems and to uphold the rule of law more generally. The chapter then considers the key proposals which have been advanced by the Cybercrime Committee in order to illustrate the ways in which the Committee has sought to address the challenges of unilateral trans-border activity in connection with the conduct of criminal investigations and to consider their viability from an international legal perspective, insofar as jurisdictional considerations are engaged.
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