2017] A.-M. Osula, M. Zoetekouw: The Notification Requirement ... 103
THE NOTIFICATION REQUIREMENT
IN TRANSBORDER REMOTE SEARCH
AND SEIZURE: DOMESTIC
AND INTERNATIONAL LAW PERSPECTIVES
*
by
ANNA-MARIA OSULA
**
, MARK ZOETEKOUW
***
Modern criminal investigations increasingly rely on evidence that is not
in a tangible format and can no longer be assumed to be located close to the locus
delicti or the perpetrator. This article focuses on the notification requirement
embedded into the legal regimes regulating one of the available investigative
measures employed to access data stored in digital devices – remote search
and seizure. The article will first analyse whether there is an obligation under
international law to notify the other state about such a transborder investigative
measure. Then we will compare the notification requirements for remote search
and seizure in three countries’ domestic law: in Estonia, the Netherlands
and the United States. Finally, we will draw conclusions on the principal
challenges related to the implementation of the notification requirement under
the domestic regulation. These involve balancing, on the one hand, the difficulties
in identifying the location and the identity of the possible suspect and, on the other
hand, the need to provide the involved individuals’ protection as guaranteed
by the principles of fair trial and effective remedy.
*
Both authors have contributed equally to this article. The views expressed herein are those
of the authors and do not reflect the policy or the opinion of any other entity.
**
Anna-Maria Osula, Ph.D., is a researcher at NATO CCD COE, Estonia and a lecturer
at Tallinn Univeristy of Technology, Estonia.
***
Mark Zoetekouw is a Ph.D. researcher at Utrecht University, the Netherlands and senior
Legal Advisor Cybercrime & Digital Technology at the Dutch National Police.
DOI: 10.5817/MUJLT2017-1-6
