Introduction to Symposium: Rethinking State Jurisdiction in the Internet Era

Abstract

Early debates about jurisdiction and the Internet turned on the problem of identifying where online activities take place. However, the greater problem of territorial jurisdiction may now be that online activities often touch a number of states that can all claim jurisdiction, leading to conflicts. In an ongoing search warrant case between the U.S. government and Microsoft Corporation, the U.S. government asserts the right to demand the e-mails of anyone in the world from any e-mail provider headquartered within U.S. borders, whereas Microsoft counters that its server with the e-mails in question is located in Ireland where the emails are protected by Irish and European privacy laws. The Department of Justice, which is seeking the e-mails as part of a drug-trafficking investigation, argues that there is no issue of extraterritoriality because Microsoft has control over the data from the United States.1 In the view of Internet scholar Dan Svantesson, these sorts of problems should not be dealt with by tinkering with the concept of territory. Instead, they should spur international lawyers to revisit the basics of jurisdiction. AJIL Unbound presents an essay by Svantesson proposing a new jurisprudential framework for jurisdiction, going “Beyond the Harvard Draft” as he puts it.2 This reference to the venerable Harvard Research Draft Convention on Jurisdiction with Respect to Crime, published in AJIL in 1935, illustrates his ambition in proposing to move definitively away from territoriality as the dominant principle in jurisdiction. Svantesson argues for a new framework focused on three core principles—asking whether the potential regulator has a substantial connection to the transaction, has a legitimate state interest, and whether the exercise is reasonable when balanced against other interests. He asserts that these principles extend the policy interest underlying the traditional approach, in which territoriality was simply a proxy for such core concerns. As pointed out in comments by Cedric Ryngaert and Horatia Muir Watt, the proposal may be less novel than it first appears. Writing from the “other side of the fence”, as she puts it, Muir Watt notes that these balancing concerns have long been at the center of debates in private international law.3 She considers what a true reconceptualization of jurisdiction might look like. Similarly, Ryngaert also notes that the proposal has the character