Borders and Bits
71 Vanderbilt Law Review 179 (2018)
62 Pages Posted: 8 Jan 2018 Last revised: 15 Sep 2018
Date Written: January 3, 2018
Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of the highly contested and often conflicting approaches to the jurisdictional reach of law enforcement over data, the so-called right to be forgotten, and a range of other privacy regulations—engaging in an in-depth analysis as to how these issues are playing out across both Europe and the United States.
In so doing, the Article highlights the flaws with the straightforward application of old jurisdictional rules onto the new medium of data—taking on recent scholarship on this issue. And it shines a spotlight on the unilateral rulemaking by powerful states and the powerful multinational companies that manage our data, which in turn puts private, multinational companies increasingly in control of whose rules govern and thus the substance of both privacy and speech rights on a global, or near-global, basis.
Keywords: internet, international, data, speech, intermediary liability, law enforcement, privacy, security, Stored Communications Act, jurisdiction, right to be forgotten
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