Aegis Paper Series

When a state suffers an internationally wrongful act at the hands of another state, international law allows the injured state to respond in a variety of ways. Depending on the nature, scope, and severity of the initial wrongful act, lawful responses can range from a demand for reparations in response to a low-level violation to a forcible act of self-defense in response to an armed attack. Countermeasures offer an additional way for a state to respond to an internationally wrongful act.

Across the United States and Europe, the act of clicking “I have read and agree” to terms of service is the central legitimating device for global tech platforms’ data-driven activities. In the European Union, the General Data Protection Regulation has recently come into force, introducing stringent new criteria for consent and stronger protections for individuals. Yet the entrenched long-term focus on users’ control and consent fails to protect consumers who face increasingly intrusive data collection practices.

The “techlash” of the past few years represents a moment of quasi-constitutional upheaval for the internet. The way a few private companies have been “governing” large parts of the digital world has suffered a crisis of legitimacy. Calls to find mechanisms to limit the arbitrary exercise of power online have gained new urgency. This task of “digital constitutionalism” is one of the great projects of the coming decades. It is especially pressing in the context of content moderation – platforms’ practice of designing and enforcing rules for what they allow to be posted on their services.

This Lawfare post summarizes a longer essay we are publishing today with the Hoover Working Group on National Security, Technology and Law. Our essay addresses whether governments ever have a justified basis for treating targets of surveillance differently, in any way, based on nationality. This issue is of general importance and has become particularly important in the current legal debates about whether the U.S.