M. Mann*, I. Warren
1 School of Justice and Crime and Justice Research Centre, QUT
2 School of Humanities and Social Sciences, Deakin University
*corresponding author: firstname.lastname@example.org
Cyberspace, by nature, bridges conventional geographic divides. This has enormous implications for transnational and extraterritorial policing activity, especially by the United States. As principles of territorial sovereignty that delimit criminal justice authority within the nation state are shifting, we argue in this paper that global digital communications are reorienting both the content and procedural protections associated with the criminal law. Increasingly data and information is considered ‘trans-’ or ‘un-territorial,’ which provides new opportunities for extraterritorial surveillance, the collection, storage and use of digital communications for evidentiary purposes and transnational policing more generally. We argue that because most English-speaking Internet infrastructure has been developed, is located in or transmitted via hubs owned by US corporations, there are numerous procedural factors that affect transnational criminal investigations conducted on behalf of, or to reflect particular US conceptions of justice, due process and the rule of law. This paper argues the direct impacts of these developments place new legal burdens on the United Kingdom, Canada, Australia and New Zealand under the Five-Eyes intelligence partnership, as well as other countries where servers might be located that contain data associated with US criminal investigations. This paper uses the example of the Silk Road investigations against Ross William Ulbricht (aka ‘Dread Pirate Roberts’) to demonstrate how the extraterritorial reach of US investigative authority occurs within a legal vacuum that prioritizes transnational police cooperation over due process considerations. We conclude by arguing high-end controversies over NSA surveillance practices significantly dilute our understanding of the discrete procedural issues that affect lower-order forms of transnational police cooperation.
Monique Mann is a Lecturer at the School of Justice, Faculty of Law, QUT. Previously she worked as a Research Analyst at the Australian Institute of Criminology. Monique is interested in critical socio-legal research on the intersecting topics of organised crime, cybercrime, police technology, intelligence and surveillance.