Search and seizure: law enforcement jurisdiction, international relations and the dark web

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law according to Ahmed Ghappour. In Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web, 69 Stanford Law Review ___ (April 2017). The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote searches and seizures. The result may well be the greatest extraterritorial expansion of enforcement jurisdiction in U.S. law enforcement history. From the abstract:

This Article examines how the government’s use of hacking tools on the dark web profoundly disrupts the legal architecture on which cross-border criminal investigations rest. These overseas cyberoperations raise increasingly difficult questions regarding who may authorize these activities, where they may be deployed, and against whom they may lawfully be executed. The rules of criminal procedure fail to regulate law enforcement hacking because they allow these critical decisions to be made by rank-and-file officials despite potentially disruptive foreign relations implications. This Article outlines a regulatory framework that reallocates decisionmaking to the institutional actors who are best suited to determine U.S. foreign policy and avoids sacrificing law enforcement’s ability to identify and locate criminal suspects who have taken cover on the dark web.

In Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?, 70 Stanford Law Review Online 58 (2017), Orin Kerr and Sean D. Murphy challenge Ghappour’s framework in three ways. “First, it questions whether there are real international relations difficulties with the use of NITs to investigate Tor users engaged in criminal activities. Second, it questions whether government use of NITs to investigate crimes on the dark web violates international law. Third, it argues that the use of NITs on the dark web does not occur in a regulatory vacuum. We agree with Ghappour that government use of NITs raises significant technical, legal, and policy challenges. At the same time, we are unpersuaded that the threat to international relations caused by use of NITs to investigate criminal cases on the dark web is among them.” — Joe

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