Digital Evidence and the American Servicemembers’ Protection Act

Summary

This paper provides background on the American Servicemembers’ Protection Act (ASPA or Act) and examines the circumstances surrounding the passage of the Act, its key provisions and their exceptions, and how the Act affects investigations by the International Criminal Court (ICC or Court). International criminal prosecutions increasingly rely on cyber investigations to uncover digital evidence that can be subsequently admitted in court proceedings. ASPA restricts U.S. cooperation with the ICC and its investigations within the United States. As the majority of emails and social media platforms are linked to U.S. entities, ICC cyber investigations will inevitably invoke ASPA in one way or another. This paper examines the current administration’s increased engagement with the ICC within the scope of ASPA, as well as whether or not this engagement signals that revisions to the Act should be made. These questions serve as the starting point for examining the nexus of cybe rinvestigations, ASPA, and the International Criminal Court.