Electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on.
Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. If I, as a U.S. citizen based in Maryland, have a g-mail account and Google, a U.S. corporation, decides to store my archived e-mails in Ireland or France or Indonesia (or indeed to split up the data fragments that make up each e-mail message among data warehouses in all three countries), that decision seems irrelevant to any question of whether I have somehow affiliated myself with any of those communities or governments for purposes of jurisdictional or choice-of-law analysis. Second, because of this deterritorialization of data, it will often be the case that territorially-based courts (or law enforcement authorities generally) are unable to easily enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities. Third, as a direct result of the first two problems, governmental and judicial authorities are increasingly turning to multinational corporate data intermediaries to carry out and enforce their orders because only those companies have sufficient global reach to make legal rulings effective. But deputizing these intermediaries to become enforcement agents, while logical and possibly effective, raises new problems regarding the scope of governmental authority and the distortions involved in privatizing law enforcement.
This Article therefore offers a set of principles that might guide legal regimes considering these sorts of jurisdictional dilemmas in the data-driven era in which we find ourselves.
GW Paper Series
GWU Law School Public Law Research Paper No. 2018-05; GWU Legal Studies Research Paper No. 2018-05
Berman, Paul Schiff, Legal Jurisdiction and the Deterritorialization of Data (2018). 71 VAND. L. REV. 11 (2018).; GWU Law School Public Law Research Paper No. 2018-05; GWU Legal Studies Research Paper No. 2018-05. Available at SSRN: https://ssrn.com/abstract=3134782