Territoriality, technology, and national security

Zachary David Clopton*

*Corresponding author for this work

    Research output: Contribution to journalReview articlepeer-review

    7 Scopus citations

    Abstract

    Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define "territoriality" in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years.

    Original languageEnglish (US)
    Pages (from-to)45-63
    Number of pages19
    JournalUniversity of Chicago Law Review
    Volume83
    Issue number1
    StatePublished - Dec 1 2016

    ASJC Scopus subject areas

    • Law

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