Analysing different approaches to cross-border electronic evidence data-sharing in criminal matters

The digital age provides criminals with unprecedented opportunities to commit serious crimes ranging from fraud and money laundering to terrorism. Not only are crimes committed across borders but the electronic evidence pertaining to a crime or national security risk may be located outside the borders of the country seeking the electronic evidence. The borderless nature of the Internet poses serious challenges to criminal law enforcement and intelligence agencies who require quick and easy access to electronic evidence on a global level for investigative and/or preventative purposes. Over the years law enforcement and national security agencies have experienced serious challenges in accessing cross-border electronic evidence with the consequence that countries are looking at different approaches to cross-border evidence access. The main focus of the discussion relates to the different approaches to the legal frameworks regulating cross-border access to electronic evidence. The different approaches reflect to some extent the view of countries regarding governance of the global cyberspace. It is therefore relevant to take note of the two main governance models, namely the multi-stakeholder model which advocates for a free, open, secure and global Internet based on individual data protection and the cyber sovereignty or multilateral model which allows the state to formulate the rules based on the idea of the sovereignty of the state representing its citizens. The discussion focusses on the development of legal frameworks for cross-border access to electronic evidence in criminal matters. It provides a legal comparative analysis of the approaches of various countries to cross-border law enforcement access to electronic evidence. The discussion will look at the impact of such legal frameworks on human rights protection and the investigation of criminal matters and critique the approaches against the background of cyberspace governance.