Readings

The "Where" Problem of Territory, Jurisdiction, and Data in Cyberspace

By Kenneth Anderson
Monday, November 9, 2015, 9:32 AM

Jennifer C. Daskal (Washington College of Law, American University) has a forthcoming paper in Yale Law Journal on the vexing question of territoriality and data (current draft is available on SSRN.com), "The Un-Territoriality of Data." This paper focuses on one important aspect of the "where" of electronic data given the nature of today's Internet technologies - the US Constitutional Fourth Amendment territoriality issues of search and seizure. Here is the SSRN abstract:

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the border’s edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The ease and speed with which data travels across borders, the seemingly arbitrary paths it takes, and the physical disconnect between where data is stored and where it is accessed, critically test these foundational premises. Why should either privacy rights or government access to sought-after evidence depend on where a document is stored at any given moment? Conversely, why should State A be permitted to unilaterally access data located in State B, simply because technology allows it to do so, without regard to State B’s rules governing law enforcement access to data held within its borders? This article tackles these challenges. It explores the unique features of data, and highlights the ways in which data undermines long-standing assumptions about the link between data location and the rights and obligations that ought to apply. Specifically, it argues that a territorial-based Fourth Amendment fails to adequately protect “the people” it is intended to cover. On the flip side, the article warns against the kind of unilateral, extraterritorial law enforcement that electronic data encourages — in which nations compel the production of data located anywhere around the globe, without regard to the sovereign interests of other nation-states. (PDF file: 60 pp.)

Daskal (colleague of mine at WCL) focuses on the Fourth Amendment issues, but it's worth noting that the same problems ripple through many other legal and regulatory topics across borders - financial and bank data for purposes of financial institution regulation, electronic communications across borders that might or might not constitute a "proxy solicitation" for purposes of US securities regulation, discovery under Federal rules of civil procedure, and a wide range of jurisdiction issues in both US and international law. Equivalent issues could be raised with respect to non-US jurisdictions, of course, with more than the possibility of conflicting legal requirements. This paper is thought-provoking and sophisticated, and opens up a large debate with enormous implications in the practical legal and policy worlds of domestic law and cross-border law - it deserves a wide reading by lawyers and academics looking to address similar or analogous issues in areas of law beyond US Fourth Amendment jurisprudence. (And Daskal offers a practical example of the importance of this topic in a recent Just Security post on the much-discussed Microsoft warrant case, argued before the Second Circuit in September 2015.)

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