Judicial Caution Towards Data Territoriality


As public and private functions moved onto the internet, academics and practitioners wondered how the law would determine data’s location for the purpose of jurisdiction. Some academics have proposed analogy to the high seas, outer space, Antarctica, and ungoverned spaces. Others, such as Jack Goldsmith, predicted and advocated for an application of extant understandings of sovereign territoriality to cyberspace. This view has prevailed for some time, but as cyberspace transactions and conflicts become increasingly complex, courts face difficult questions regarding data territoriality. Their rulings could have unintended consequences for state actors.