Global Private International Law
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Global Private International Law

Adjudication without Frontiers

Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo

Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.
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Chapter 19: Legal challenges of data dominance: Yahoo! v. LICRA and Microsoft – Ireland cases

Paul Schiff Berman and Jennifer Daskal

Abstract

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 – travels 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 such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on. This has given rise to a cascade of novel legal questions about the appropriate reach of domestic and private international law over issues such as extraterritorially stored data, speech and privacy rights or the emerging right to be forgotten. Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial allocation of data becomes increasingly arbitrary and substantively unimportant. If I, as a United States citizen based in Maryland, have a Gmail account, and Google, a US corporation, decides to store my archived e-mails in Ireland or France or Indonesia (or indeed to split up the data fragments that make up each e-mail message among data warehouses in all three countries), that decision seems irrelevant to any question of whether I have somehow affiliated myself with any of those communities or governments for purposes of jurisdictional or choice-of-law analysis. Second, because of this deterritorialisation of data, territorially based courts (or law enforcement authorities generally) will sometimes be less able to enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities.

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