Implications of the Application of the 'Hot Pursuit' Principle in the Cyberspace: An Analysis of the Case 'Microsoft v. United States of America'

Abstract

The hot pursuit principle is defined as the right of a nation-state to pursue and seize a non-national vessel suspected of having committed a crime within the nation-state's internal waters and territorial sea and arrest it on the high sea (Churchill & Lowe, 1999). The hot pursuit allows a nation-state to enforce its laws and regulations against non-national ships that flee onto the high seas where the nation-state lacks jurisdiction (Reuland, 1993). Pursuit must be continuous and it must end as soon as the chased ship enters into the territorial sea of its own nation-state or a third nation-state’s (Churchill & Lowe, 1999). The hot pursuit is officially recognized by the Convention on the Law of the Sea (UNCLOS) from 1982. In December 2013, a New York district Court judge issued a warrant requesting Microsoft to produce emails and private information associated to particular accounts hosted by Microsoft. The data was storage on a Hotmail server located in Ireland and was related to a drug trafficking investigation (HLR, 2015; Scott, 2014). According to the U.S. Department of Justice (DoJ), the U.S. government has the right to demand the emails of anyone in the world as long as the email provider has headquarters within U.S. borders (Thielman, 2015). Microsoft refused to deliver the names and accounts of the server stored in Ireland arguing that a U.S. Court has no jurisdiction over information stored out of U.S. territory. Similarly, the Irish government supported the Microsoft opinion and claimed that U.S. Courts do not have sovereignty to issue search warrants to be executed abroad (Goldman, 2016). Using the Microsoft case, this paper intends to analyze the implications of applying the “hot pursuit” principle into the cyber domain. For this purpose, the analysis will be centralized in the arguments and allegations of the involved parties by using the codification software Atlas-Ti. The research design will follow an inductive approach and will focus in the arguments about why one nation-state’s sovereignty should be applicable or not beyond the borders of its own territory. This proposal is important because it presents a concrete opportunity to study a long-time-suggested academic proposal of applying some of the elements of the law of the sea into the cyberspace. At this point existent studies focus in: a) applying the categories included in UNCLOS as part of a national security policy over the Internet packets, b) applying anti-piracy rules in case of copyright infringement and c) protecting the under-sea cables (Kalpokienė & Kalpokas, 2012; Sechrist, 2010; Steven, 2001). References Churchill, R. R., & Lowe, A. V. (1999). The Law of the Sea. Manchester University Press. Goldman, D. (2016). Microsoft is fighting the DOJ too. Retrieved March 31, 2016, from http://money.cnn.com/2016/02/23/technology/microsoft-ireland-case/ HLR. (2015). In re warrant to search a certain email account controlled & maintained by Microsoft Corp. Harvard Law Review, 128(3), 1019 – 1026. Kalpokienė, J., & Kalpokas, I. (2012). Hostes Humani Generis: Cyberspace, the Sea, and Sovereign Control. Baltic Journal of Law & Politics, 5(2), 132–163. Retrieved from http://www.degruyter.com/view/j/bjlp.2012.5.issue-2/v10076-012-0014-y/v10076-012-0014-y.xml?format=INT Reuland, R. C. (1993). The customary right of hot pursuit onto the high seas : annotations to article 111 of the Law of the Sea Convention. Virginia Journal of International Law. -. Scott, M. (2014, December 24). Ireland Lends Support to Microsoft in Email Privacy Case. The New York Times. New York, New York, USA. Retrieved from http://bits.blogs.nytimes.com/2014/12/24/ireland-lends-support-to-microsoft-in-email-privacy-case/?_r=0 Sechrist, M. (2010). Cyberspace in Deep Water: Protecting Undersea Communications Cables By Creating an International Public-Private Partnership. Harvard - Belfer Center for Science and International Affairs. Retrieved from http://belfercenter.ksg.harvard.edu/publication/20710/cyberspace_in_deep_water.html?breadcrumb=%2Fexperts%2F2223%2Fmichael_sechrist Steven, B. (2001). Innocent Packets? Applying navigational regimes from the Law of the Sea Convention by analogy to the realm of the cyberspace. Naval Law Review, 48, 56–83. Retrieved from http://unclosdebate.org/evidence/1115/unclos-provisions-transit-passage-provide-good-model-international-agreements Thielman, S. (2015). Microsoft case: DoJ says it can demand every email from any US-based provider. Retrieved March 31, 2016, from http://www.theguardian.com/technology/2015/sep/09/microsoft-court-case-hotmail-ireland-search-warrant