Litigating Data Sovereignty
79 Pages Posted: 19 Oct 2018 Last revised: 3 Dec 2018
Date Written: February 8, 2018
Because the internet is so thoroughly global, nearly every aspect of internet governance has an extraterritorial effect. This is evident in a number of high-profile cases that cover a wide range of subjects, including law-enforcement access to digital evidence; speech disputes, such as requests to remove offensive or hateful web content; intellectual property disputes; and much more. Although substantively distinct, these issues present courts with the same jurisdictional challenge: how to ensure one state’s sovereign interest in regulating the internet’s local effects without infringing on other states’ interests.
The answer, for better or for worse, is comity, the foreign affairs principle that informs a number of sovereign-deference doctrines. Sovereignty arguments have pervaded a number of recent consequential cases, including Google’s challenge to the “right to be forgotten” in Europe and Microsoft’s challenge to a court order to produce foreign-held emails under the Electronic Communications Privacy Act. These arguments will continue to play a significant role in future cases. Yet the proper application of foreign affairs law to cross-border internet disputes is not what many litigants and courts have claimed. Crucially, no sovereign-deference doctrine prohibits global takedown requests, foreign production orders, or other forms of extraterritorial exercises of jurisdiction over the internet. To the contrary, one of the key lessons of the sovereign-deference jurisprudence is that in order to avoid tensions between sovereigns, courts often enable, rather than inhibit, extraterritorial exercises of authority.
This Article has three goals. First, it seeks to identify and characterize an emerging body of case law, which we might call data-sovereignty litigation: a diverse set of cases pitting national sovereigns against large internet firms. Second, the Article aims to show how the doctrinal rules of sovereign deference ought to apply to these disputes. Finally, it makes the case for a policy of sovereign deference beyond courts. The stakes are considerable. If we do not find ways to accommodate legitimate sovereign claims over global cloud activity, states will forcefully assert those interests — typically by taking physical control over local network infrastructure — imposing significant costs on entrepreneurship, privacy, and speech.
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