The Challenges of Collecting Digital Evidence Across Borders

Abstract

In the modern world, the use of ICT communication technologies has become an integral part of life. ICT infrastructure is the bearer of digital traces of both legal and illegal activities performed through it. However, for something to become digital evidence, it must be obtained by law and by a person authorised by law. Namely, the virtual infrastructure, especially the Internet and the new challenges brought to us by cloud architectue due to its physical positioning outside national borders, calls into question the legality of searching and collecting digital evidence outside national borders. This paper analyses the legal basis for collecting digital evidence in cyberspace internationally, such as the Council of Europe Convention on Cybercrime, the US Cloud Act, the Australian Decryption Act and the European GDPR. Although the Court of Justice of the European Union declared invalid the decision of the European Commission (EU) 2016/1250 on the adequacy of data protection provided through the EU-US Privacy Shield, experts must not stop looking for a solution to the apparent problem. The paper intends to support decision-makers in taking clear national positions regarding the above controversial legal norms and their mutual conflict. The paper compares the legal consequences of such collection, and the acceptability of such digital evidence, and such collection may also be associated with a breach of the privacy of a legal and private entity.