ABSTRACT
This chapter discusses the cross-border search for electronic evidence from the perspective of public international law. More specifically, it focuses on the practice of ‘direct cooperation’, i.e. when a public authority issues a direct order to a foreign entity requiring them to collect electronic evidence. It pays close attention to the legal framework both in the EU and Japan, which are both drafting new laws and regulations concerning ‘direct cooperation’. The first issue that the chapter addresses is under what conditions a provider located in one jurisdiction can be considered subject to a foreign State’s jurisdiction, which would then be enabled to issue such binding orders. The second issue that it addresses is whether and under what conditions would the action of the service provider violate the law of the State that holds the jurisdiction over the service provider. The article will then discuss how to overcome the potential conflict between the laws of the State whose authorities are requesting the collection of evidence and the State in whose jurisdiction the entity owning the evidence resides. Since the existing EU–Japan Mutual Legal Assistance Treaty (MLAT) of 2011 does not cover the coordination process regarding such cross-border orders, the chapter argues that a new framework regulating this type of cooperation is necessary. The chapter will also consider the relevance of the digital trade agreement concluded between the EU and Japan to these issues.
Key Words: Electronic evidence; cross-border investigation; conflict of jurisdiction; public international law; data protection
