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Review Article – Journal of Cybersecurity*
SoK: Cross-Border Criminal Investigations and Digital Evidence
By Fran Casino, Claudia Pina, Pablo Lopez-Aguilar, Edgar Batista, Agusti Solanas, and Constantinos Patsakis
Digital evidence underpin the majority of crimes as their analysis is an integral part of almost every criminal investigation. Even if we temporarily disregard the numerous challenges in the collection and analysis of digital evidence, the exchange of the evidence among the different stakeholders has many thorny issues. Of specific interest are cross-border criminal investigations as the complexity is significantly high due to the heterogeneity of legal frameworks, which beyond time bottlenecks can also become prohibiting. The aim of this article is to analyse the current state of practice of cross-border investigations considering the efficacy of current collaboration protocols along with the challenges and drawbacks to be overcome. Further to performing a legally oriented research treatise, we recall all the challenges raised in the literature and discuss them from a more practical yet global perspective. Thus, this article paves the way to enabling practitioners and stakeholders to leverage horizontal strategies to fill in the identified gaps timely and accurately.
Understanding the evolution of information and communication technologies without cross-border data flows and ubiquitous systems is impossible. Nevertheless, the opportunities that such evolution brings to all levels of society come with unprecedented challenges in the context of criminal prosecution in cyberspace. Not only the amount of criminal investigations is increasing, but the border-less nature of the Internet adds humongous complexity to such procedures. In addition to the technical challenges of such investigations, the collaboration amongst different organizations is crucial, yet jurisdictional issues further impede it. Thus, the investigation and prosecution of crimes that extend beyond national boundaries is a problem that requires effective measures.
One of the main issues of cross-border investigations is the collection and exchange of electronic evidence, which is often located in multiple countries, requiring external access to it. While being a priority for most countries, there are many unsolved issues due to the different regulatory frameworks of each country, which hinder collaboration due to, e.g., ethical, legal, or even procedural differences. Moreover, since more than half of all criminal investigations require access to cross-border electronic evidence, most investigations require evidence requests to other jurisdictions. In addition to the procedural burden, judicial cooperation processes require weeks or even months to be fulfilled.
The EU and countries such as the USA have recently proposed initiatives to address the challenges related to gathering data in different jurisdictions, intending to prevent and prosecute cybercrime in a timely manner. However, as discussed in the literature, these initiatives may pose additional challenges related with fundamental rights and the rule of law provided in the EU and the countries involved.
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Complete Review Article: Cross-Border Criminal Investigations and Digital Evidence (PDF) – Mouseover to Scroll
Cross Border Criminal Investigations and Digital Evidence
*Shared with permission (Creative Commons CC-BY-NC-ND)
Article Citation: Fran Casino, Claudia Pina, Pablo López-Aguilar, Edgar Batista, Agusti Solanas, Constantinos Patsakis, SoK: cross-border criminal investigations and digital evidence, Journal of Cybersecurity, Volume 8, Issue 1, 2022, tyac014, https://doi.org/10.1093/cybsec/tyac014
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