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Jurisdiction in Cybercrime Cases
Samantha Bellino
Liberty University
CJUS 550
Douglas Orr
02/27/2022
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Abstract
Cybercrime has become more popular as technology has advanced. Unfortunately, policies, laws,
statutes, and procedures for jurisdiction have not evolved with technology. These Internet based
offences often cross geographic borders or exist in cyberspace. This makes it difficult to
investigate and prosecute these cases. The location of the offense can be difficult to locate as it is
often different from the area that is affected by the crime or the victims. The anonymity of both
space and time are main components of cybercrime, which further complicate the issue of
jurisdiction. The transnational nature of cyber offences causes problems for substantive
jurisdiction and can cause international conflicts. Jurisdiction can be exercised in two main
principles: on a territorial basis and an extraterritorial basis.
Keywords : cybercrime, extraterritorial, Internet, juridiction, principle, territorial
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Jurisdiction in Cybercrime Cases
Cybercrime is when electronic means are used as the method, environment, or goal of a
crime. It is behavior in the digital world that communicates with computers through binary code,
translating illegal ideas into digital language (Li & Jia, 2018). Cybercrimes are Internet based
and cross geographic borders or solely exist in cyberspace, making technical and complex
investigations even more difficult for law enforcement departments (Brunner, 2020). In the case
of cybercrime, this jurisdiction can be difficult to locate. The difficulty of locating is due to
transnational and virtual characteristics of the crime (Mittal & Sharma, 2017). Jurisdiction in
cybercrime cases is different from jurisdiction in traditional crimes, the offense typically
involves multiple countries or locations, making it challenging to pinpoint a specific area of
jurisdiction (Li & Qin, 2018). The transnational nature of cybercrime jurisdiction creates issues
for substantive jurisdiction that are related to international jurisdiction conflicts (Li & Qin,
2018).
Overview of the Issue
The transnational dimension of cybercrime arises where part of the modus operandi or
substantive or element effect of the crime is in another location or country, bringing forth issues
of extraterritorial evidence, sovereignty, transnational investigations, and jurisdiction. This
makes international cooperation necessary (Mittal & Sharma, 2017). The use of computer
networks can allow cybercrime perpetrators to commit offences in virtual spaces that span
dozens of locations without physical contact with victims (Li & Qin, 2018). The anonymity of
time and space is at the very center of cybercrime further complicates the issue of jurisdiction.
The speed of the actions resulting in irregular results inconsistent to the resources employed and
non-attribution of behaviors and absence of international borders are other complications to
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jurisdiction (Mittal & Sharma, 2017). Due to the nature of cloud computing, the evidence of a
cybercrime may be stored in multiple jurisdictions. Cloud data is stored in twenty-three centers
in fifteen jurisdictions and related data is not stored in the same center (Edwards, 2019).
Jurisdiction for cybercrime involves the answering of two questions. The first question is
the country or locality which is responsible for the cybercrime or has substantive jurisdiction and
the other is which court has prosecutorial jurisdiction of the case (Li & Qin, 2018). Legal
complications from multiple jurisdictions of cybercrime such as, mutual legal assistance
requests, the main legal instrument for abroad data requests, on average takes ten months to
fulfill (Brunner, 2020). One of the practical complications is in the cases in which in person
testimony is necessary, the department prosecuting may have to disburse a significant amount of
resources on funding the travel of the witness with a limited budget. In addition, foreign national
defendants may not be convicted if their country of origin decides not to extradite them to the
United States for prosecution (Brunner, 2020).
The fight against cybercrime requires the facing of the Internet’s natural constraints such
as, “invisibility, anonymity, availability of guardianship” in addition to organizing the
collaboration between multiple jurisdictions and gathering support from the impacted authorities
(Wang et al, 2021, p. 381). Consequently, cybercrime’s clearance rate is rather low when
compared to traditional crimes. To effectively investigate cybercrimes advanced digital forensic
abilities and clear knowledge of how cybercrimes are committed are required. However, these
requirements vary across jurisdictions, highlighting the importance of law enforcement
collaboration (Wang et al, 2021). Despite these issues, law enforcement departments have begun
developing cross jurisdictional investigations in association with other international, federal,
state, and local counterparts, demonstrating how cybercrime cases can progress even though
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crucial evidence, suspects, or witnesses do not reside in the boundaries of the investigator and
prosecutor (Brunner, 2020).
Literature Review
The Internet is a network of networks, offering a diverse ecosystem of services. The user
friendliness and convenience of the Internet have caused the integration of more personal devices
and essential infrastructure to the information highway that cyberspace provides (Wang et al,
2021). The anonymity of the Internet is a contributor to compromised security, which prospered
in the space between the rapid growth of Internet technology and the languid reaction of the legal
system (Brunner, 2020). Historically jurisdiction was understood in relation to geological
boundaries since the development of the sovereign nation state and the exercise of jurisdiction
over offences that occurred outside the territory of the state was considered an exception to the
rule (Khalifa, 2020). In the twentieth and twenty first centuries there has been an increase in the
commission of organized crimes that are transnational, causing countries to become more
interested in criminal behavior taking place beyond their borders (Khalifa, 2020).
Countries have their own procedural and substantive laws, therefore the international
response to cybercrime should make an effort to adapt the differences of the countries and
accomplish some degree of synchronization in the interest of fostering international collaboration
(Khalifa, 2020). Every country needs to have sufficient judicial and legislative capacity to fight
cybercrime and these policies need to be corresponding among the countries as they are
protecting common interests (Li & Jia, 2018). Synchronization between substantive laws is
necessary to criminalize every form of cybercrime in different territories, which can eliminate
the hindrance of domestic prosecution due to safe havens in countries where the offending
conduct is not a crime. This will give better responses to mutual legal assistance requests and
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extradition (Khalifa, 2020). The international community has concluded multiple treaties that
allow extraterritorial jurisdiction over cybercrime due to the unwillingness or inability of another
sovereignty to prosecute cybercrime or because of foreign or domestic policy agendas (Khalifa,
2020).
Securing custody of the offender is an important issue in jurisdiction because jurisdiction
becomes meaningless without custody of the cybercriminal. This makes extradition and
acquiring custody of the offender essential in exercising jurisdiction (Gillespie, 2019).
Extradition is implemented through international or bilateral conventions. Treaties stipulate
extradition for specific crimes need to be followed as the treaty is binding. When there is not
extradition treaty, the matter is to be referred to the international custom of country that is going
to perform the extradition or internal legislation (Li & Jia, 2018).
Solution
The development of cyberspace and its decentralized, pervasive, and borderless nature
has triggered a paradigm shift in regards to jurisdiction, though there has not been any
modernization to rules of jurisdiction over cybercrimes. Meaning that cybercrime jurisdiction is
mainly established on the principle of territoriality (Maillart, 2018). Jurisdiction can be exercised
through territorial or extraterritorial principles. A majority of cybercrimes can be investigated
and prosecuted under a territorial basis because the principle is considered to be applicable when
the offending behavior occurs with the borders of a country. Extraterritorial jurisdiction is rarely
applied in cybercrimes (Irpan, 2021). The exception to this are crimes such as child sexual
exploitation and child pornography where extraterritorial jurisdiction can be beneficial
(Gillespie, 2019).
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Territorial Principle of Jurisdiction
Territorial jurisdiction is the most commonly accepted method of exercising jurisdiction
in criminal cases. It is accepted generally in public international law as the main basis of criminal
jurisdiction due to strong ties between the “notions of state sovereignty and territoriality”
(Maillart, 2018, p. 376). The territorial principle of jurisdiction and its objective and subjective
applications were first developed in the nineteenth century as exclusive and independent
principles (Maillart, 2018). Subjective territorial jurisdiction can be exercised by the territory on
which the criminal conduct occurred. Its use is limited in cybercrime cases because of the
difficulty in pinpointing the location of the offender when they were committing the cybercrime
(Irpan, 2021). The legal and technical considerations used to explain such a situation are
problematic in respect to cybercrimes of conduct, as the actus reus solely consists of criminal
conduct. This means that cybercrimes of conduct are only under the territorial jurisdiction of the
location of its origin (Maillart, 2018).
Subjective
Under subjective territorial jurisdiction a territory is acknowledged as having sovereignty
to adopt criminal laws that can be applied to criminal behaviors that are conducted within its
borders (Kastner & Mégret, 2021). There are three principles that subjective territory relies on:
the location of the cybercrime offender, which will have the most useful evidence to investigate
the crime such as, indicia of criminal behavior and witnesses; ensuring that due process and
compliance with legality is followed in the place of the criminal conduct; and the idea that it is
more imperative for territories to authorize the expression of a criminal will in their jurisdiction
than it is to protect the public and restore order (Maillart, 2018).
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Objective
The objective territory principle allots jurisdiction to the locality in which the criminal
behavior has been accomplished and has been affected by the cybercrime. The subjective
territory principle allows the location in which the criminal conduct occurred jurisdiction in the
investigation (Wang et al, 2021). Objective territorial jurisdiction a sovereign is accepted as
having the authority to embrace criminal law that is applicable to crimes that take effect in its
domain, even if the offender is acting from outside of their territory, cybercrime and the Internet
have made this aspect of the principle of territory ever more significant to jurisdiction (Brunner,
2020). Objective territoriality has roots in the Supreme Court and its jurisprudence, Justice
Oliver Wendell Holmes held that a state is justified in punishing the offended for actions that
were intended to result in detrimental effects, but the act itself and the offender were located in a
different jurisdiction than the result. Although in order for the state to punish the offender as if
they were physically present for the crime, it is necessary the state succeeds in getting the
suspect under their authority (Kastner & Mégret, 2021).
New Sovereignty and Jurisdictional Relativity
The theory of new sovereignty holds that cyberspace is developing a civil global society
with its own forms of rules, values, and organization which are independent of the government
with the right to govern itself. The characteristics of cyberspace make it necessary for a separate
law system that is solely developed for cyberspace. This makes the jurisdiction of cybercrime
cases independent from traditional jurisdiction in criminal cases (Brunner, 2020). This theory
was further developed by Professor Darrel Manthe who created the theory of jurisdictional
relativity. This theory postulates that cyberspace should exist as a new jurisdiction like the high
seas and outer space, where alternative rules of jurisdiction are established. According to this
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theory, on the occasion that an individual commits an offense in cyberspace, any country has
power to exercise jurisdiction over the offender in accordance with their laws (Li & Qin, 2018).
Extraterritorial Jurisdiction
Jurisdiction can be exercised on an extraterritorial basis, meaning that the territory
applies its laws outside of its boundaries. There are four principles widely accepted upon which
this type of jurisdiction can be exercised: passive personality, active personality, protective, and
universal (Gillespie, 2019).
Active and Passive Personality Principles
The two most common forms of extraterritorial jurisdiction are the active and passive
personality principles. They are both based on nationality but differ in terms of whose
nationality. Active personality is based on the offender’s nationality, while passive personality is
based on the nationality of the victim. Occasionally there is an extension encompassing both the
nationality and the location of the offender’s or the victim’s consistent residence. This is
typically referred to active plus or passive plus (Gillespie, 2019).
Protective Principle
When the protective principle is applied, states are permitted to exercise extraterritorial
jurisdiction when safeguarding national security or important interests of the territory. This
jurisdiction is crucial for combating cyberattacks on military installations or government outputs
that are placed globally (Gillespie, 2019).
Universality Principle
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The universality principle is based on the offense’s international nature, which allows a
state’s court system to prosecute the criminal of a jus cogens offense even though no connection
can be established between the state and the crime (Khalifa, 2020). These offenses are so heinous
internationally that any state is awarded jurisdiction over the criminal regardless of the location
of the offending conduct and the victims or their nationality (Gillespie, 2019). This principle is
an efficient manner to prevent international crimes, making many territories establish universal
jurisdiction over specific offences (Li & Qin, 2018). Universal jurisdiction was created in
response to piracy as pirates were roaming the high seas, outside of the territorial jurisdiction of
any country, making it unregulated by national statutes. It fills a gap by permitting countries to
prosecute any pirate that they caught, which was confirmed by international customary law (Li &
Qin, 2018). Unregulated, universal jurisdiction could be destructive to the international judicial
process, continuously creating jurisdictional conflicts between territories, which is why
guidelines for the use of universal jurisdiction are necessary (Khalifa, 2020). In the context of
cybercrime, it has been argued that universal jurisdiction allows a country to prosecute even in
the absence of connections (Li & Qin, 2018). The application of the principle can solve
jurisdictional issues that are associated with the location of the prosecution, the investigator, and
the crime; making it well suited to the transnational nature of cybercrime (Khalifa,2020).
Cooperation
There are multiple instruments that address the issue of jurisdiction in cybercrimes.
Council of Europe conventions council directives and decisions make up the majority of these
instruments. These directives contain requirements and procedures for when approaching issues
of jurisdiction in a criminal investigation with more than one country involved (Van Nguyen,
Truong & Lai, 2021). European countries incorporated international jurisdiction principles prior
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to the adoption of the Budapest Convention and select countries implemented legislation for how
to approach the issue of jurisdiction when multiple countries are involved (Van Nguyen, Truong
& Lai, 2021; Gillespie, 2019). It is up to the discretion of national courts and the judiciary to
weight the merits of each case for the prosecution. The choice of whether or not the court will
prosecute in its jurisdiction or will negotiate and collaborate with other counties is based on
damage to the victims, nationality, and territory (Van Nguyen et al., 2021). The instruments do
not change the fact that cooperation between law enforcement agencies has been a contentious
part of operations as competition for resources and “turf jealousies” are discouragements for
collaboration (Van Nguyen et al., 2021; Wang et al, 2021, p. 399). Long-established bureaucratic
limits and competition in assignments, budget resources, and organizational culture norms are
obstacles in the relationships between law enforcement departments (Wang et al., 2021).
Implications
There is no one correct or best manner in which to exercise jurisdiction, although there
are several practical implications that are the result of the offered solutions. The propositions of
this research are that negotiations must take place between states with the purpose to centralize
the cybercrime case in one country or jurisdiction (Gillespie, 2019). This is because countries
cannot fight cybercrime solo and must partner and work with other jurisdictions in order to
augment their investigation and the prosecution of the offense (Brunner, 2020). The
establishment of an international or national binding statue that decides which jurisdiction has
priority in the investigation is another implication of this research (Brunner, 2020). The
development of global guidelines or nation-wide procedures which include narrow factors that
need to be considered and evaluated prior to reaching a decision is a practical response to the
research. Evaluating specific factors such as the interests of the offender, the victim, the territory
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in which the crime was committed, the locations of the offender’s and victim’s nationality, and
the territory that has been affected by the offense and deciding jurisdiction based off these merits
is another practical implication of this research (Li & Qin, 2018).
Biblical Worldview
In Romans 13:1 the Bible says, “Let everyone be subject to the governing authorities, for
there is no authority except that which God has established. The authorities that exist have been
established by God” (Bible Gateway, 2021). This verse places every person under the jurisdiction
of leaders and authorities that God has put in place. It recognizes human government as a
legitimate authority that has a Gid ordained jurisdiction. 1 Timothy 5:8 states, “But if anyone
does not provide for his own, and especially for those of his household, he has denied the faith
and is worse than an unbeliever” (Bible Gateway, 2021). In the context of cybercrime
jurisdiction is often awarded to the territory most affected by the crime and that is best equipped
to investigate and prosecute the case according to this verse (Kleijssen & Perri, 2017; Bible
Gateway, 2021).
Conclusion
There has been a paradigm shift in the context of jurisdiction cue to the development of
the Internet and its transnational nature. Jurisdiction in cybercrime cases is usually exercised
through territoriality (Maillart, 2018). There is no singular manner that jurisdiction can be
exercised all of the time in every cybercrime case. Each case’s merits need to be weighted and
the location of the offender and victims of the cyber offence also need to be considered. Each
country needs to develop procedures for cybercrime jurisdiction and on the occasion that
multiple countries cooperate, negotiation is crucial to deciding jurisdiction (Irpan, 2020)
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