'War Crimes' Against Privacy - The Jurisdiction of Data and International Law

Abstract

For years, activists have been concerned about assault on one of the most fundamental and cherished freedom that individuals enjoy – the right to privacy. However, in recent years, that right has been gradually loosened due to the widespread use of the Internet. Individuals registering for “free services” such as email provided by Internet communication companies agrees to a number of complex privacy and service agreements. This article sketches an “assault” on data in broad terms and online privacy, and whether governments should access, e.g., personal data, that are located in overseas servers outside the reach of domestic (territorial law) against the back-drop of international law. The article further posits the state of inter-national law and how legislations such as the Stored Communications Act (SCA) in the United States aid and abet “war crimes” on privacy. Of particular interest is also financial data and the role of mutual legal assistance treaties (MLATs). The article argues that law enforcement measures which include search warrants for (personal) data such as email contents held on overseas servers poses problems for governments due to jurisdictional issues and the encroachment on the nation state in question sovereignty. Most of the issues raise in this article only scratches the surface of the problem, and therefore, cannot give a full account of all the acts that constitute a “war crime” against privacy.

Keywords: Data, Privacy, Jurisdiction