10 - Conflicts of Law and the Challenge of Transnational Data Flows

Summary

Philip Jessup correctly observed sixty years ago that multinational corporate activity created new challenges for nation-states and their territorially based rules for jurisdiction, choice of law, and judgment recognitions. Those challenges are exponentially more difficult in the 21st century because electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travel around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries. Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. Second, territorially based courts (or law enforcement authorities generally) will often be unable to easily enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities. Third, governmental and judicial authorities are increasingly turning to multinational corporate data intermediaries to carry out and enforce their orders because only those companies have sufficient global reach to make legal rulings effective.