Yesterday, I had the pleasure of attending a luncheon honoring winners for best of the 2014-2015 Call for Papers by the Southeastern Association of Law Schools (SEALS) at its annual conference. It featured Just Security‘s own Jen Daskal for her excellent paper, The Un-Territoriality of Data, which is forthcoming in the Yale Law Journal.
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.
A link to Jen’s article can be found here.
Tomorrow morning, Jen and I will participate in a panel discussion entitled: “Congressional Force Authorizations: Constitutional Necessity or Nicety?” It will be moderated by my former White House Counsel colleague, Kate Shaw (Cardozo School of Law) and we will be joined by Ron Krotoszynski (University of Alabama School of Law) and Kevin Govern (Ave Maria School of Law).
We’ll surely sort all that out. But in the meantime, a huge congratulations to Jen for well-deserved recognition.