The Overlapping Web of Data, Territoriality and Sovereignty

Provides a framework to better understand Global Legal Pluralism and the current international state of law. Equips practitioners, theorists, and students with deeper insights and analytical tools to describe the conflict among legal and quasi-legal systems. Analyzes global legal pluralism in light of legal theory, constitutionalism, conflict of laws, international law, commercial transactions, and as it affects indigenous polities, religious orders, and citizenship.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1288/thumbnail.jp

Borders and Bits

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, basi

Microsoft Ireland, the CLOUD Act, and International Lawmaking 2.0

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world\u27s data

Notice and Standing in the Fourth Amendment: Searches of Personal Data

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by contrast, the service provider was the only source of possible challenge—at least for some meaningful period of time. In both cases, the searches were done pursuant to a warrant issued in accordance with the Stored Communications Act (SCA). Because the government proceeded by warrant, the government was not required to give notice to the target of the search. The warrants were also accompanied by no-notice orders, meaning that the provider was barred from telling anyone, including the target of the search, that his or her data was being sought by the government—in some cases indefinitely. The use of such no-notice warrants served on third-party providers is an increasingly common investigatory tool, wrought by the changes in the way personal information is stored and managed in the digital age. Its use presents a significant shift in how investigations are carried out. It relies on a third-party intermediary between the police and the citizenry to gather information about persons of interest. It makes the searches that are occurring much more indirect and less visible. And it means that individuals are a lot less likely to know—and thus have an opportunity to object—if and when their personal information is being sought and collected by law enforcement officials. This Article examines what has changed; why it matters; and the implications for the Fourth Amendment. Ultimately, this Article makes the case for notice and revisions to standing doctrine as an essential to protecting Fourth Amendment interests and as good policy

Hamdan v. United States: A Death Knell for Military Commissions?

In October 2012, a panel of the D.C. Circuit dealt a blow to the United States’ post- September 11, 2001 decade-long experiment with military commissions as a forum for trying Guantanamo Bay detainees. Specifically, the court concluded that prior to the 2006 statutory reforms, military commission jurisdiction was limited to violations of internationally-recognized war crimes; that providing material support to terrorism was not an internationally-recognized war crime; and that the military commission conviction of Salim Hamdan for material support charges based on pre-2006 conduct was therefore invalid. Three months later, a panel of the D.C. Circuit reached the same conclusion with respect to conspiracy and solicitation charges, and vacated the conviction and life sentence of Guantanamo Bay detainee Ali Hamza Ahmad al Bahlul. That case is now on appeal to an en banc (full court) panel of the D.C. Circuit. This article analyses the D.C. Circuit’s ruling in Hamdan’s case, explaining why the ultimate holding is the right one, even though some of the reasoning is flawed, and why the ruling should be upheld on appeal. It also highlights the many unresolved questions and the implications for the future of military commissions at Guantanamo Bay. As the article explains, the D.C. Circuit’s rulings are a major victory for the rule of law and a major defeat for commissions

The Un-Territoriality of Data

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The ease and speed with which data travels across borders, the seemingly arbitrary paths it takes, and the physical disconnect between where data is stored and where it is accessed critically test these foundational premises. Why should either privacy rights or government access to sought-after evidence depend on where a document is stored at any given moment? Conversely, why should State A be permitted to unilaterally access data located in State B, simply because technology allows it to do so, without regard to State B’s rules governing law enforcement access to data held within its borders? This Article addresses these challenges. It explores the unique features of data and highlights the ways in which data undermines longstanding assumptions about the link between data location and the rights and obligations that should apply. Specifically, it argues that a territorial-based Fourth Amendment fails to adequately protect “the people” it is intended to cover. Conversely, the Article warns against the kind of unilateral, extraterritorial law enforcement that electronic data encourages — in which nations compel the production of data located anywhere around the globe, without regard to the sovereign interests of other nations

The Geography of the Battlefield: A Framework for Detention and Targeting Outside the \u27Hot\u27 Conflict Zone

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict — and broad detention and targeting authorities — extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by civilian law enforcement, tempered by international human rights norms. This Article breaks through the impasse. It offers a new and comprehensive law-of-war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state’s need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called “hot” battlefield and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law-of-war detention outside zones of active hostilities — subjecting their use to an individualized threat assessment, a least-harmful-means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational nonstate actors in the future

The Geography of the Battlefield: A Framework for Detention and Targeting Outside the \u27Hot\u27 Conflict Zone

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict — and broad detention and targeting authorities — extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by civilian law enforcement, tempered by international human rights norms. This Article breaks through the impasse. It offers a new and comprehensive law-of-war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state’s need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called “hot” battlefield and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law-of-war detention outside zones of active hostilities — subjecting their use to an individualized threat assessment, a least-harmful-means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational nonstate actors in the future

Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to their appropriate limits. The Article examines this category of noncustodial pre-crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect