Here’s the abstract for Kristen Eichensehr’s Data Extraterritoriality:
Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere, but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity.
These implications of data’s intangibility challenge traditional international law on jurisdiction. International jurisdictional rules rest in large part on States’ sovereignty over a particular territory and authority over people and things within it, and they presuppose that the location of people and things are finite and knowable. The era of cloud computing — where data crosses borders seamlessly, parts of a single file may exist in multiple jurisdictions, and data’s storage location often depends on choices by private companies — raises new and difficult questions for States exercising enforcement authority, companies receiving requests from law enforcement agencies, and individuals seeking to protect their privacy.
As a part of the Texas Law Review’s symposium on the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, this Essay critiques Tallinn 2.0’s rules and commentary on the international law governing jurisdiction, especially its treatment of extraterritorial jurisdiction. The Essay first describes the Manual’s rules and commentary on extraterritorial jurisdiction, and then raises a procedural objection to the Manual’s approach, namely that ongoing debates about how to determine data’s location make the law too unsettled for a restatement project. The Essay then highlights several substantive concerns with and questions raised by the Manual’s approach. In light of these critiques, the Essay concludes with some suggestions on how to make progress in resolving conflicting international claims to jurisdiction over data going forward.
Global-Regulation has launched the Global Law Search Engine, a fee-based service that can be test driven for free right now. The search service claims to be the most comprehensive currently available because one can “[s]earch, find and compare laws from 90 countries using a user-friendly search engine that is aimed at legal information professionals, not lawyers. Due note this important caveat: “Our service is entirely run by computer algorithms. Translations are not human-vetted. There may be inaccuracies in information due to our algorithmic extraction of information. Always consult the official source when making use of legal information.” FAQ here.
H/T to beSpacific. — Joe
Google was ordered by the Court of Justice for the European Union to delist individuals from search results under a “right to be forgotten.” Other search engines had to comply with the order as well. Certainly in the digital world information can be copied and stored anywhere. Even deleted pages can be resurrected by viewing a cached copy when available. The Wayback Machine at the Internet Archive allows one to search 456 billion preserved web pages over time. Many websites, not unlike this one, may repost a document or other information thus populating a web of hits and misses. I’m always surprised at what I find when I Google myself no matter how hard I hide from social media.
Google has reported that it has processed a quarter of a million requests to be forgotten comprising links to one million pages. So far, so good. France’s data regulators have ordered Google to delete links on a worldwide basis rather than limiting them to Europe. Google’s response was “non.” The company states that doing this would encourage other governments from enforcing similar “rights” which can be manipulated into censorship. I can understand that. Hostile elements in and out of government can use this kind of mechanism to marginalize opposition by limiting its web presence.
This is going to becomes a bit of a mess as it will likely lead to more litigation in Europe. I suspect Google may have to rethink some of its business practices there if it ultimately loses on a European court order that is essentially extra-territorial. In that case, Europe essentially sets a world-wide standard which, I think, is a dangerous precedent. Imagine a U.S. State, we’ll call it Texas, deciding what could and could not be taught about evolution in schools nationwide. We’ll all have to see how this one turns out.
More information comes from a post in Google’s Europe Blog.
Anne Abramson, the Foreign and International Law Librarian at the Louis L. Biro Law Library of The John Marshall Law School in Chicago, reviews International Law Legal Research by Anthony S. Winer, Mary Anne E. Archer and Lyonette Louis-Jacques (Carolina Academic Press, 2013) on International Law Prof Blog. Here’s the work’s blurb:
This concise yet comprehensive book is designed to be accessible for the beginner as well as useful for those with more experience. For students, the book can serve as enrichment for a doctrinal course in international law or as the basis for a stand-alone course in international law research. To allow for self-evaluation, the book includes frequent review questions to help assure retention. For practitioners new to the international area, each type of search tool and search strategy is covered in detail with explanations to provide background comprehension.
On Concurring Opinions, Margot Kaminski provides her analysis of the leaked draft of the TPP’s (Trans-Pacific Partnership) Intellectual Property Rights agreement that was published by WikiLeaks just ahead of Nov. 19-24, 2013 TPP Chief Negotiators summit in Salt Lake City. See Kaminski’s Capture, sunlight, and the TPP leak and The TPP and Copyright.
Quoting from the WikiLeaks announcement about the draft TPP’s Intellectual Property Rights:
The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. … The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.
“It’s not a pretty picture,” wrote EFF’s Maira Sutton and Parker Higgins. They examine the following issues presented in the leaked draft:
- Copyright Terms
- Fair Use and Fair Dealing
- Intermediary liability
- Temporary Copies
From locking in excessive copyright term limits to further entrenching failed policies that give legal teeth to Digital Rights Management (DRM) tools, the TPP text we’ve seen today reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies.
For details, see Sutton and Higgins’ TPP Leak Confirms the Worst: US Negotiators Still Trying to Trade Away Internet Freedoms. — Joe
Hat tip to Slaw’s Monday’s Mix for information about the following University of Ottawa Press book.
The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, Edited by Michael Geist.
In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law.
The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing. The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged.
This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The diversity of contributors ensures an equally diverse view on these five cases, contributions are grouped into five parts. Part 1 features three chapters on the standard of review in the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in Part 4 with two chapters that canvas the exclusive rights under the copyright and the establishment of new “right” associated with user-generated content. Part 5 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions.
This volume represents the first comprehensive scholarly analysis of the five rulings. Edited by Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, the volume includes contributions from experts across Canada. This indispensable volume identifies the key aspects of the Court’s decisions and considers the implications for the future of copyright law in Canada.
You can download the complete book as an open access PDF from the above link. — Joe
Hat tip to Legal Informatics Blog for calling attention to D’Aspremont and Van den Herik’s The Digitalization of the Assembly Line of Knowledge About Law: A Reinvention of the Confrontational Nature of Legal Scholarship? [SSRN]. Here’s the abstract:
This paper reflects upon the rise of new tools of production and dissemination of knowledge about law as well as their impact on the dynamics and the nature of the profession of legal scholar. Taking the contemporary international legal scholarship as a case-study, it discusses the potentially dramatic changes brought about by the new media of communication, not only with respect to the configuration of the assembly line of knowledge about law in the 21st century but also regarding the profession of legal academic as a whole.
This paper starts by distinguishing modes of law-making and modes of knowledge-production with a view to showing that these two modes of production of authoritative statements share are not always following radically different dynamics. It then recalls that the production of knowledge about law has always been estranged from the State and rested on a competitive social process between professionals. The paper subsequently makes the point that knowledge-producing processes in international legal scholarship have been dramatically altered in the cyber-age. Knowledge about international law is now created, selected and disseminated through previously unknown channels that cannot be influenced by the State. These mutations have required legal scholars to change how they envisage and construe their contribution to the production of knowledge and thus how they see their own profession. The paper finally formulates some concluding remarks about what it means for the discipline as a whole.