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 is-sues 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 territoriali-ty 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 interfer-ing with the existing allocation of policymaking authority. This Essay explores the-se 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.
Clopton, Zachary D.
"Territoriality, Technology, and National Security,"
University of Chicago Law Review: Vol. 83
, Article 3.
Available at: http://chicagounbound.uchicago.edu/uclrev/vol83/iss1/3