Admitting digital evidence obtained from overseas : a preliminary proposal for adoption of an international standard

Abstract

This study is concerned with two issues: first, can digital evidence located overseas be acquired legally by law enforcement agents for use in criminal investigation and prosecution, other than by using traditional methods such as Mutual Legal Assistance (“MLA”), such that it is admissible in a local court? Second, can a new international standard offer an alternative way forward and, if so, how might such an international standard be formulated for easy adoption in local legislation? The current practice of acquiring digital evidence from overseas, primarily by MLA Treaty, not only may not be able to secure digital evidence on time, but also suffers from the difficulty that the digital evidence acquired may be held to be inadmissible in court. The problems lie in three major areas: legal, technical and jurisdictional. The issues identified here have become a problem faced by many countries. In reality, no country in the world can claim that no matter where the digital evidence is located, it can definitely secure it. This study will be divided into two parts. First, it will argue that the characteristics of the Internet have rendered current methods of gathering digital evidence from overseas inadequate. It will be argued that a new international standard to regulate the gathering of digital evidence and contained in an international convention is needed. The contents of this new standard, it will be argued, should be based on the nature of digital data. It will be proposed that in cyber-space, the cyber-jurisdiction of a country can be overlapped with other countries and can be expanded together with the growth of the Internet. Although it might seem that giving each country in the world the right to access the entire Internet would lead to chaos, it will be argued that the notion of “overlapping cyber-jurisdiction” will not lead to such chaos if it goes together with the requirement of mutual assurance. By using this new standard, countries will more readily be able to secure digital evidence from overseas and admit it in court, while also respecting an individual’s privacy and human rights. The second part of this research will explore how an international standard derived from the Western legal tradition can be formulated in a manner that would be workable in non-Western countries such as Asian countries. This part will examine the legal traditions and legislation of Hong Kong, Singapore and China. It will be argued that by setting different categories of membership in the new international standard, it may be more acceptable in these jurisdictions. It will be argued that by respecting the laws and legal traditions of these Asian jurisdictions, the different categories of membership will have a greater chance of being accepted by Asian and other non-Western jurisdictions. This will help ensure as many countries as possible recognize the new standard. Furthermore, the acceptance of the new standard by Asian jurisdictions will shed light on how such countries can be persuaded to accept other international treaties or conventions originating from the West.