Cybercrime is a prototype of transnational crime. Hence, legislative responses to offenses in global data networks demonstrate quite clearly the attempts of nation states to overcome national boundaries through extraterritorial expansion of criminal law. This project reveals the limits of this approach: it is successful only in limited areas and specific cases and does not lead to a generally applicable model solution for the development of transnationally effective criminal law.

The dis­sem­in­a­tion of data, in­ter­per­son­al com­mu­nic­a­tion, and ac­cess to net­worked com­puter sys­tems do not stop at na­tion­al bor­ders. This leads to transna­tion­al activ­it­ies not only on the part of crim­in­al of­fend­ers but also on the part of law en­force­ment agen­cies, which can re­spond in­ter­na­tion­ally and bey­ond their own na­tion­al bor­ders. Two im­port­ant jur­is­dic­tion­al prob­lems res­ult: The first con­cerns the prob­lem of the ex­tent to which a coun­try – fol­low­ing the ap­pro­pri­ate jur­is­dic­tion­al rules – can de­clare its na­tion­al crim­in­al law ap­plic­able bey­ond its own ter­rit­ory. The second poses the ques­tion of wheth­er and how a coun­try can con­duct in­vest­ig­a­tions in the glob­al cy­ber­space bey­ond its own ter­rit­ory– in the form of simple ob­ser­va­tion­al meas­ures or by means of on­line searches, for in­stance. With­in the frame­work of a re­search pro­ject or­gan­ized by the Uni­versity of Tilburg, ef­forts were made to ana­lyze the situ­ation in dif­fer­ent leg­al sys­tems with re­spect to these two ques­tions.

The goal of the con­tri­bu­tion from the Freiburg Max Planck In­sti­tute was to ana­lyze the ap­plic­a­tion of Ger­man na­tion­al crim­in­al law to ex­tra­ter­rit­ori­al of­fenses. Here, prob­lems arise in the con­text of the dis­sem­in­a­tion of il­leg­al con­tent if the con­tent is ac­cess­ible in many coun­tries "with the click of a mouse." In Ger­many, as in most leg­al sys­tems, the prin­ciple of ter­rit­ori­al­ity is over­rid­ing. This prin­ciple, however, not only re­quires cla­ri­fic­a­tion in many areas, its prac­tic­ab­il­ity has also been ser­i­ously ques­tioned. As the num­ber of coun­tries af­fected by a par­tic­u­lar il­leg­al activ­ity in­creases, the danger of jur­is­dic­tion­al con­flicts grows. The act­or’s chance of fore­see­ing the risks of pro­sec­u­tion di­min­ishes in equal meas­ure, es­pe­cially if the act­or’s be­ha­vi­or is con­sidered leg­al in his or her own leg­al sys­tem but is pun­ish­able in an­oth­er leg­al sys­tem. This is es­pe­cially true with re­gard to the dis­sem­in­a­tion of in­form­a­tion in the In­ter­net, as such in­form­a­tion can be ac­cessed world­wide. In ad­di­tion, the scope of the jur­is­dic­tion­al au­thor­ity of na­tion­al law en­force­ment agen­cies threatens to be­come over­ex­ten­ded un­less the prin­ciple of ter­rit­ori­al­ity is nar­rowly in­ter­preted or the agen­cies are gran­ted the dis­cre­tion­ary au­thor­ity to de­cide which In­ter­net crimes to pur­sue and which not to. From the per­spect­ive of in­ter­na­tion­al law, as well, the ex­er­cise of pen­al au­thor­ity is prob­lem­at­ic if a "min­im­um con­tacts" re­quire­ment with the ter­rit­ory of the ex­er­cising agency is not sat­is­fied.

The solu­tion to this prob­lem in Ger­man law is char­ac­ter­ized by the prin­ciple of ubi­quity, ac­cord­ing to which an act is com­mit­ted in the place at which the of­fend­er ac­ted or at which the res­ult laid down in the stat­utory defin­i­tion of the of­fense oc­curred. In the mean­time, a con­sensus has been reached that such a res­ult can be un­der­stood not only in the sense of a res­ult crime, but also as oth­er kinds of out­comes if the out­come is covered by the stat­utory defin­i­tion of the of­fense. In the case of Holo­caust deni­al on a for­eign serv­er, the Ger­man Fed­er­al Su­preme Court of Justice (Bundes­gericht­shof) found it suf­fi­cient that the dis­puted in­form­a­tion was cap­able of en­dan­ger­ing the pub­lic peace in Ger­many. This res­ul­ted in a far-reach­ing ex­tra­ter­rit­ori­al ap­plic­a­tion of Ger­man crim­in­al law. Be­cause this ex­er­cise of jur­is­dic­tion can­not, however, be en­forced via com­men­sur­ate in­vest­ig­at­ive meas­ures, it can­not lead to an ef­fect­ive mod­el for transna­tion­ally ef­fect­ive crim­in­al law. Thus, without har­mon­iz­a­tion of crim­in­al law and an ap­pro­pri­ate in­ter­na­tion­al law of co­oper­a­tion, the prob­lem can­not be re­solved.

The Eng­lish-lan­guage coun­try re­port "Ger­many" by Ul­rich Sieber was pub­lished along with the res­ults of the en­tire pro­ject in: Bert-Jaap Koops/Susan W. Bren­ner (eds.), Cy­ber­crime and Jur­is­dic­tion (The Hag­ue, T. M. C. As­s­er Press, 2006) 183–210.

Ex­tern­al Re­search Part­ners:

Prof. Susan W. Bren­ner, Prof. Dr. Roberto Chacon de Al­buquerque, Prof. Noel Cox, Dr. Paul de Hert, Pavan Dug­gal, Dr. Vladi­mir Gol­ubev, Bar­rie Gor­don, Prof. Dr. Peter Grabosky, Jes­sica R. Her­rera-Flan­nigan, Dr. Gus Ho­sein, Prof. Dr. Hen­rik W.K. Kaspersen, Prof. Dr. Bert-Jaap Koops, Prof. Dr. Jeong-Hoon Lee, Fernando Lon­doño, Prof. Pau­line C. Reich, Hen­rik Spang-Hanssen, Dr. Gregor Urbas, Dr. Ian Walden, Dr. Mar­tin Was­mei­er, Prof. Dr. Gio­vanni Ziccardi, Rodrigo Zúñiga