When I visited mid January 2008 a technology crime police team in
Amsterdam, they told me about the internet related issues they were
struggling with. One issue was related to the physical location of a server.
They said to have permission to open
someone’s mail box
only if the servers are physically located in the Netherlands.
In any other case they needed permission from the “hosting” state.
Yahoo-mailbox showed an unread e-mail with a subject that
seemed highly relevant for the case. Not looking at this e-mail
because the mail is hosted in the US seems to me an
unjust territorialisation of the internet.
How should this policy be applied to virtual words?
The issue in general has been discussed during the drafting of the Cyber Crime Treaty (Council of Europe), but the drafters did not succeed to define under what circumstances investigation should be allowed on servers located in foreign territories. So, they decided to not regulate it.
In one recent case, the American producer of a game did not provide personal data of Dutch citizens (a group of fascists) breaching Dutch Penal Law because their utterances were allowed under the First Amendment. I can understand that, but there is a related question that intrigues me: is the Dutch police allowed to investigate in virtual worlds that are hosted and produced by, e.g. American companies? Is the Dutch police allowed to follow, observe, etc. avatars in general, or only if there exists a suspicion of e.g., illegal money transfers, hard drugs transactions or the planning of (terrorists) attacks? As the above e-mail example illustrates, co-operation with foreign police officers or foreign prosecutors is needed if the servers are located in other countries.
I am curious what a judge will decide if a suspect argues that the evidence obtained in a virtual world is inadmissible because the permission of foreign authorities was lacking. According to the wording of the code the suspect may be right, but following the spirit of the law would lead to another conclusion. To me, this would even be so if a citizen was logging into a virtual world from outside his home country, the servers are hosted elsewhere, and also the producer is form a foreign state. Just like a country has jurisdiction over a website indifferent of where the site is hosted, a virtual world can have impact in any country.
Authorities must be allowed to enter these worlds, just as avatars can, and patrol if necessary. I am not a proponent per se of policing in virtual worlds, but besides the regular national legal safeguards in this respect I see no legal obstacles in doing so if servers are located in other countries.