Skip to main content
Unpublished Paper
Law, Dissonance and Remote Computer Searches
ExpressO (2012)
  • Susan W. Brenner
Abstract
This article examines the rule dissonance that can arise when law enforcement officers from one jurisdiction, e.g., the United States, remotely search a computer in another jurisdiction, e.g., Russia. It explains that such a search occurred in 2000, when Federal Bureau of Investigation agents tricked two Russian cybercriminals to Seattle and tricked them into using laptops loaded with spyware to access their computer in Russia. The FBI agents then used the usernames and passwords the spyware recorded to access the Russian computer and download data, which was used to prosecute the Russians for violating U.S. cybercrime law. One moved to suppress because the agents did not have a warrant. A judge held that since the Fourth Amendment does not apply to extraterritorial searches targeting non-U.S. citizens, the search was lawful. Russian authorities then charged one of the agents with hacking and demanded the U.S. turn him over for prosecution; the United States has never responded to that demand. This case illustrates the rule dissonance that can arise when officers remotely search a computer in another jurisdiction. The article examines how dissonance can, and will, arise if U.S. state law enforcement officers in one state remotely search computers in another state that has adopted Fourth Amendment-plus requirements for such searches or outlawed them entirely. For this analysis, the article assumes such searches will be lawful under the U.S. Constitution if they satisfy the Fourth Amendment, i.e., are conducted pursuant to a search warrant or an to the warrant requirement. Next, the article examines the potential for such dissonance in Europe. It notes that (i) in 2008 the European Union adopted a directive encouraging European officers to use remote computer searches, (ii) British officers have had, and used, this ability for years and (iii) in 2008 the German Federal Constitutional Court held such searches are unconstitutional in Germany. In 2011, it was revealed that German police were using remote computer searches and that German police had for years been meeting with law enforcement officers from various European countries and the United States to discuss how such searches can be implemented despite the “legal grey area” they involve. The article concludes that transnational computer searches are inevitable, and will generate rule dissonance both within and among nation-states. It suggests some principles that can be used to address such dissonance.
Keywords
  • cybercrime,
  • European Union,
  • Fourth Amendment,
  • comity,
  • law enforcement,
  • conflict of law
Disciplines
Publication Date
June 2, 2012
Citation Information
Susan W. Brenner. "Law, Dissonance and Remote Computer Searches" ExpressO (2012)
Available at: http://works.bepress.com/susan_brenner/6/