Digital searches and the principle of territoriality: Time for a new European approach?

According to the territoriality principle, a search measure can only take place in the territory of the state where the investigation is taking place. For extraterritorial searches, police and judicial authorities are supposed to send out a request for mutual legal assistance or, within the EU, a European investigation order to the State where the search measure is to be executed. Digital searches, however, put this traditional approach based on state sovereignty under pressure. The location of data is not always easy to determine and there may be multiple copies. Even if the data is stored abroad, it may easily be accessible from the territory of the investigating authorities. In some States, remote searches which extend other territories are legal, in others the applicable law is less clear. Starting from the current European legal framework on remote searches, this contribution analyses whether a new approach would not make more sense in a digital era.