The Un-Territoriality of Data

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 borders’ 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 addresses these challenges. It explores the unique features of data and highlights the ways in which data undermines longstanding assumptions about the link between data location and the rights and obligations that should apply. Specifically, it argues that a territorial-based Fourth Amendment fails to adequately protect “the people” it is intended to cover. Conversely, 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 nations.

Keywords: data, Fourth Amendment, territoriality, sovereignty, surveillance