The prohibition on extraterritorial enforcement jurisdiction in the datasphere

Applying traditional doctrines of international jurisdiction to the highways of the internet, in particular the rules on enforcement jurisdiction, is marred with difficulty. A borderless environment, cyberspace defies classic jurisdictional principles that are grounded on territorial line drawing to determine the legality or illegality of particular types of cyber enforcement action. The chapter builds a taxonomy of police behavior in cyberspace in an attempt to develop meaningful distinctions between different kinds of enforcement activities. In particular, the chapter explores which activities should be subject to a more lenient state “investigative jurisdiction” principle, and which activities rise to the level of prohibited extraterritorial enforcement. The chapter relies on general principles of law, namely standards of efficacy, strict necessity, proportionality, and comity to derive further possible constraints on such exercises of extraterritorial cyber powers by intelligence and law enforcement agencies.