Data Institutionalism: A Reply to Andrew Woods
69 Stanford Law Review Online (2016 Forthcoming)
9 Pages Posted: 28 May 2016 Last revised: 20 Jul 2016
Date Written: May 27, 2016
In Against Data Exceptionalism, Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law.
Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes early on: “Showing that the jurisdictional challenges presented by the global cloud are not conceptually novel does not resolve those problems.” Data may not be exceptional, and the legal puzzles posed by data sound in existing notions of jurisdiction and conflict of laws. The problem, however, is that existing answers to these puzzles are unsatisfying. They are unsatisfying in that they do not provide clear answers, but instead pose even more challenging normative questions. And they are unsatisfying because some consensus answers sit on shaky normative footing. More satisfying answers, I contend, require attention to institutions, not just laws.
Note: By permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review Online at 69 STAN. L. REV. ONLINE (Forthcoming).
Keywords: National security, data, extraterritoriality, technology, jurisdiction
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