Fitbit Health Data, Apple’s Geo-Data and Google Searches: Crossborder Law Enforcement and the Territoriality Principle

Abstract

Statecraft in the digital age is not business as usual. Much as access to personal data has presented unprecedented opportunities for commercial actors, it also promises a wide and diverse spectrum of regulatory uses for State authority, especially law enforcement agencies. These range from using personal health or geo-data from mobile phones in criminal prosecutions to the pre-emptive monitoring of social media to predict criminal or disorderly activity from terrorism to low-level anti-social conduct or political or environmental protests. Yet, much as globalised communications and commerce raised questions about which State could regulate them, the quest for access to the data reservoirs of global platforms has now triggered equivalent questions vis-à-vis globalised law enforcement activities. This chapter situates crossborder law enforcement activities within the territoriality principle and argues that prescriptive and enforcement jurisdiction under international law are not alternatives that match onto legislative activities and law enforcement actions at the domestic level but apply cumulatively to the exercise of any State authority. By implication, as long as extraterritorial claims (prescriptive jurisdiction) are - as an exercise of State authority - made or actioned within the State territory (enforcement jurisdiction), no objection on the ground of a violation of territorial sovereignty may be raised. So extraterritorial data requests made or performed in the territory of the requesting State are wholly unexceptional. Even in so far as they factually interfere with matters in the territory of another State, the preoccupation of enforcement jurisdiction with prohibiting 'displays' of State functions in another State means that it is rarely engaged by data interventions.

Keywords: territoriality, territory, data production orders, warrants, extraterritoriality, enforcement jurisdiction, prescriptive jurisdiction, law enforcement agencies

JEL Classification: K20