Implications of the Application of the 'Hot Pursuit' Principle in the Cyberspace: An Analysis of the Case 'Microsoft v. United States of America'

Abstract

This paper analyzes the implications of applying one of the mechanisms for defense sovereignty contained in the “United Nations Convention on the Law of the Sea” (UNCLOS), known as “hot pursuit,” into the cyberspace. For this purpose, this paper uses as a case study the analysis of the legal controversy, “Microsoft vs. United States of America,” also known as the “Microsoft Ireland” case.

The Microsoft Ireland case occurred in a time when firms and companies store their data in different servers around the world and retrieve it at will. This is also a case that exemplifies the collision between different jurisdictions when nation-states try to exercise their legal powers into the cyberspace. Facing this scenario, and taking into account a long-time suggested academic proposal of comparing policies over the sea and the cyberspace, this paper presents a concrete opportunity of analyzing the possibility of applying some of the elements of the law of the sea into the cyberspace policy debate.

Taking the “Microsoft Ireland” case as a case study, this paper will: a) provide an overview of how the hot pursuit mechanism has been understood by the international court of justice (ICJ) and the International Tribunal of the Law of the Sea (ITLOS), b) analyze the arguments and allegations of the parties involved in the Microsoft case about why one nation-state’s sovereignty should be applicable or not beyond the borders of its own territory, and c) analyze the possible repercussions of applying the hot pursuit, a mechanism used in the past by nation-states when they were trying to regulate a space beyond their national jurisdiction and apply their sovereignty into the cyberspace (an electronic medium that cannot be govern by any nation-state).

It is important to clarify that this paper does not advocate for a governance model for the cyberspace based in UNCLOS and the hot pursuit principle. Findings expect to clarify the diverse opinions this matter has generated and learn from previous experiences where governments were involved trying to regulate a space beyond their traditional territorial sovereignty.

Keywords: GigaNet